[1] Following a jury trial in the District Court at Hamilton Mr Manuel was found guilty of aggravated robbery and wounding with intent to cause grievous bodily harm. On 17 October 2007 Judge Clark sentenced him to 10 years’ imprisonment. He seeks leave to appeal against the sentence.[1]

The application for extension of time

[2] The time to appeal expired on 14 November 2007. The appeal was not filed until 4 March 2010. Mr Manuel had sought to instruct Mr Pyke earlier this year. Mr Pyke was unable to accept instructions and referred Mr Manuel to Ms Green. Ms Green filed the appeal shortly after receiving instructions.
[3] Mr Manuel’s explanation for the substantial delay in seeking to appeal is unconvincing. He says that when, some weeks after sentence, he asked trial counsel Mr Burroughs to file an appeal he was advised that he should be happy with the sentence, that he could get longer and he should leave it. Mr Burroughs denies that. He says that after sentence was imposed, he advised the appellant to take time to consider his position, but that he never received instructions to file an appeal.
[4] It is unnecessary to resolve the conflict in evidence on this point. Even on Mr Manuel’s account, he wanted to appeal his sentence and knew by the end of 2007 that Mr Burroughs was not willing to file an appeal on his behalf. Mr Manuel then apparently sought other advice. He says that by May 2008 he had contacted another counsel, Mr Sutcliffe, who sent him legal aid forms to return which he did, but he did not hear anything further. Mr Sutcliffe has no file nor recollection of Mr Manuel but he does have a draft letter in his word processing system dated 12 June 2009. On that date he wrote to Mr Manuel requesting him to complete a legal aid application for the Court of Appeal and provide further instructions. Mr Sutcliffe says his records do not disclose any further communication from Mr Manuel. If Mr Sutcliffe is correct, Mr Manuel did nothing to advance his appeal for approximately 18 months and then, after contacting counsel, failed to provide the necessary instructions. If Mr Manuel is correct, then he did nothing for a period of 18 months after May 2008 before attempting to instruct Mr Pyke.
[5] On any view of it, there is a lengthy period of close to two years of unexplained delay before Mr Manuel wrote to Mr Pyke in early 2010. Without a proper explanation for the lengthy delay in this case the extension would only be granted if the merits of the proposed appeal were strong. It is thus necessary to consider the merits of the appeal.

The merits of the appeal

[6] The appeal against sentence is advanced on the following grounds:

(a) if Mr Manuel had pleaded guilty he would have received credit for that and counsel failed in his duty to advise Mr Manuel to plead guilty;

(b) the Judge erred in attributing an uplift to the offending on the basis it was a home invasion; and

(c) the sentence was manifestly excessive because the Judge incorrectly assessed where it ought to fall in the spectrum of offending for aggravated robbery.

Background

[7] In the early hours of the morning on 22 November 2006 the appellant and two other, unidentified, offenders broke into the victim’s home, a farm cottage on the outskirts of Hamilton. At the time the victim and his 17 year old girlfriend were in bed. The victim was told to get out of bed. He was not allowed to put any clothing on. All three of the robbers were carrying firearms. Two of them carried rifle type firearms and the appellant carried a revolver. The victim was hit to the back of his head and dragged to the lounge area. After he was dragged into the lounge area the victim was struck a number of times by the appellant and one other assailant. The other robber stayed with his girlfriend. The victim thought he was hit to his head with the butt of a gun or guns about six times. As a result the back of his head was split open.
[8] Before he was taken into the lounge area the victim was threatened and asked “where the money and stuff was”. During the course of the assault, the victim was threatened a number of times, and told that he would die. The victim thought the attackers were serious. While the victim was lying on the floor of the lounge the assailants wrapped a piece of cloth around his neck and pulled his head from the ground with the cloth. He described not being able to breathe properly for about 30 to 40 seconds. He then felt the pressure release and thought he may have blacked out. He was then tied up. He was put on a chair, still naked, and had his arms tied behind his back with an electrical lead. During the assault the victim suffered a number of injuries. He was only able to escape when the appellant and his associates went to look for more money in a pair of jeans on a couch some distance away. He ran to his landlord’s house, which was about 30 metres away.
[9] The victim recognised Mr Manuel as one of his assailants. When spoken to by the police the next day the appellant was found in possession of a number of items taken from the victim’s home but denied being involved in the robbery or the attack on the victim.
[10] As a result of the assault the victim suffered a two centimetre open wound to the back of his head, a laceration over his right big toe, a clean abrasion over his left foot, a swollen and bruised left big toe, a swollen and bruised right finger, bruising on his shoulder and left upper arm and a fracture of his foot. The victim impact report records that he had to use crutches for several weeks and required multiple stitches to the cut on the back of his head. The victim had three months off work as a result of the injuries. He lost earnings and as a consequence of his injuries his work courses were set back by some six months. He still suffers from nightmares and becomes stressed when he considers the events of the night. In addition, the young woman at the home was emotionally affected by the incident. She terminated her relationship with the victim.

The guilty plea issue

[11] Mr Manuel says that on the morning of his trial he told Mr Burroughs that he wanted to plead guilty but Mr Burroughs told him not to and said he was confident he would win or, at the worst, get six years. In his affidavit sworn on 28 May 2010 for this application Mr Manuel says that had he been advised about the effect of the doctrine of recent possession and the pros and cons of pleading guilty earlier he would have pleaded guilty. He says Mr Burroughs never discussed pleading guilty with him and further, that when he raised it on the morning of the trial, he was advised against it.
[12] Mr Burroughs no longer holds a file for the appellant. It was destroyed in February 2010. However, Mr Burroughs says that, as with other clients, his initial consultation would have included advice about the process of pleading guilty and the sentencing benefits of doing so. He emphatically denied the suggestion Mr Manuel had told him at trial that he wanted to plead guilty.
[13] According to Mr Burroughs’ recollection the appellant denied being involved to the police and was similarly consistent in his denials to counsel throughout the process leading up to and including trial. Mr Manuel’s instructions to Mr Burroughs were emphatic that he was not even present when the attack occurred. The appellant continued to maintain he was not guilty at every one of Mr Burroughs’ attendances at Court or at Waikeria Prison. Mr Burroughs said that the appellant’s stance did not change even when the guilty verdicts were returned and it was only when he received the probation report which contained some partial admissions that Mr Manuel even admitted being at the scene. Counsel’s advice is always dependent upon the honesty and accuracy of a client’s instructions.
[14] Mr Manuel’s mother and niece have sworn affidavits to support his version of events. His mother says that on one of the visits to her son awaiting trial the appellant told her that he had “done it” and that he wanted to plead guilty. She said that on another occasion before trial Mr Burroughs said words to the effect of “I’m going down to see him now and I don’t want him to plead guilty” and walked off. Mr Manuel’s niece says that on one occasion he told her that he did it and that they talked about him pleading guilty.
[15] Mr Burroughs accepted that prior to trial, he received a call from Mr Manuel’s family to advise that Mr Manuel wanted to plead guilty. But when Mr Burroughs next attended him, Mr Manuel said he had been depressed and that was why he had told his family he would plead guilty. He went on to confirm to Mr Burroughs that he wanted to maintain his not guilty plea. In evidence Mr Manuel effectively confirmed that. He said that he decided to plead guilty only on the day of the trial or the day before.
[16] Mr Burroughs denies that he ever said that he didn’t want Mr Manuel to plead guilty. He says that if Mr Manuel had ever instructed him he wanted to plead guilty he would have confirmed the instructions in writing and given effect to them. From Mr Burroughs’ point of view the problem was that Mr Manuel continued to maintain his not guilty plea up to, and including, the trial.
[17] We do not accept Mr Manuel’s evidence that on the day of the trial he instructed Mr Burroughs he wished to plead guilty. It is contrary to Mr Burroughs’ evidence which we prefer. There was no reason for Mr Burroughs not to give effect to those instructions if they had been given. It is inherently improbable that counsel would not give effect to a client’s instructions that he wanted to plead guilty. Further, Mr Manuel’s evidence now, in June 2010, is contrary to his stance when first arrested that he was not guilty, which he maintained throughout 2007 to trial. Significantly, it is also contrary to his refusal to accept responsibility in the pre-sentence report prepared shortly after trial. The probation officer recorded that the appellant:

... does not deny being present, but stated that he had been implicitly threatened with harm by his two co-offenders if he did not assist them. He maintains that he did not carry out these offences, stating that the victim had misidentified his assailant, and that all he had done was take the items that had later been located in his possession. He stated that he did this because he “thought that was my job, as the other two were dealing with the victim”.

And later:

Although he maintains his innocence for the offences for which he has been found guilty ...

[18] Mr Manuel’s statement to the probation officer confirmed the untruthfulness of his instructions to Mr Burroughs throughout. It was only after the jury returned a verdict of guilty that he admitted his presence at the scene. His new or modified line of defence as expressed to the probation officer was that he was not guilty of the offending for other reasons. In other words, even after his conviction Mr Manuel was maintaining that he was not guilty of the crime, contrary to his current assertion that he wished to plead guilty on the day of the trial.
[19] The probation writer also spoke to the appellant’s mother, who at that time was reported to have said:

She and the other members of the family had been surprised to learn of the charges, and shocked that he had been found guilty.

The mother’s reported reaction at the time is quite different to the evidence that she now gives in her affidavit.

[20] We are satisfied that during the course of acting for Mr Manuel, Mr Burroughs raised the possibility of a guilty plea with the appellant. But importantly, for his own reasons, the appellant denied the offending and chose to take the matter to trial rather than plead guilty. His evidence that he wanted to plead guilty seems to be ex post facto reasoning no doubt based on his regret about the result at trial and the sentence imposed. But Mr Manuel must take the consequences of his decision to maintain a not guilty plea with the ensuing verdicts and sentence.
[21] Ms Green referred to the case of R v Patrick[2] to support this aspect of the appeal. In Patrick one of the grounds this Court relied on to allow an appeal against sentence was that, had the appellant been properly advised, it was highly likely he would have pleaded guilty and thus attracted a discount on sentence. The facts of Patrick were, however, quite unusual. Mr Patrick could remember nothing of what had happened on the night of the incident and was entirely reliant on counsel’s advice as to the effect of that. By contrast, in the present case, Mr Manuel was definite in his instructions to Mr Burroughs from the outset that he was not there and was not guilty. Mr Burroughs was obliged to proceed on the basis of those instructions. They did not change.
[22] We emphasise that an appeal against sentence on the footing that the appellant ought to have been advised to plead guilty (and by not doing so received a higher sentence) is unlikely to be entertained except in unusual or exceptional circumstances. It is all too easy, after the event, for an appellant to make such a complaint after a verdict of guilty is returned by a jury or an unexpectedly high sentence is imposed. In general, a practitioner who informs his client of the available options and follows the client's instructions is unlikely to attract criticism and the client will be obliged to accept the consequences of his decision as to plea.

Home invasion factor

[23] Ms Green next submitted that the sentence of ten years was in any event manifestly excessive because the Judge fell into error by regarding the incident as a home invasion warranting an uplift of three years in accordance with the statutory provisions in force at the time of the decision of this Court in R v Mako.[3]
[24] During the course of her sentencing notes the Judge did refer to the following passage from Mako:[4]

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[25] Ms Green submitted that as the home invasion provisions referred to in that passage had been repealed, there was no basis for an uplift of three years from a start point of seven years which otherwise might have been appropriate. However, while the home invasion provisions referred to by this Court in Mako were subsequently

repealed by the provisions of the Sentencing Act 2002, the fact that the offending involved a home invasion remains a significant aggravating factor of the offending as confirmed by s 9(1)(b). Further, an argument similar to that advanced by the appellant in this case was rejected by this Court in R v Fenton[5] as quite unpersuasive. In that decision this Court said:[6]

... There is no reason to assume, no basis for suggesting, that the Sentencing Act (which repealed the Crimes (Home Invasion Amendment) Act 1999 that was applied in Mako) signalled a Parliamentary intention to reduce penalties for offences involving home invasion. Although the Sentencing Act does not repeat the automatic three-year uplift of the maximum penalties that was enacted in 1999, the clear intent remains that home invasion should be reflected in an increased sentence.

[26] A number of the features present in Fenton were also present in this case:

(a) the attack was premeditated, the appellant and his associates having deliberately gone to the victim’s home after arming themselves and wearing balaclavas to disguise themselves;

(b) the premises entered in the early hours of the morning was the victim’s home, a cottage in a remote area;

(d) a number of threats were made to the victim;

(e) significant violence was used including blows to the head, the throttling, and the breaking of bones to the victim’s foot. The victim suffered a cut to his head;

(f) property was stolen during the incident;

(g) in the present case, in addition, the victim was treated in a degrading way by being dragged naked from his bed, not being allowed to dress and tied to a chair in that state; and

(h) the impact on the victim and his female companion has also been significant.

[27] In Fenton this Court observed that a start point of 10 or 11 years’ imprisonment must be accepted as necessary to reflect the seriousness of the actual offending in all its circumstances. We endorse those comments. They are directly applicable to the present case.
[28] Ms Green referred to other decisions of this Court where lesser sentences for aggravated robbery and wounding with intent to cause grievous bodily harm have been upheld: R v Hita [7] and R v Cook.[8] However, the issue is whether the sentence of ten years in this case was manifestly excessive. Ms Green was constrained to accept that she could not distinguish the features of R v Fenton which supported a 10 to 11 year start point from the features in this case.
[29] This was a serious home invasion with several aggravating features. The start point of ten years three months was within the range available to the Judge. In the present case the Judge would have been entitled to have uplifted the start point for the appellant’s previous convictions for burglary and assault. The appellant might also be regarded as fortunate to have received a discount of three months for his belated expression of remorse and the prospect of rehabilitation.
[30] The case of Fenton is also determinative of the appellant’s alternative submission that the sentence was manifestly excessive because the Judge adopted an incorrect assessment as to where the offending ought to be placed in the spectrum of offending for aggravated robbery.
[31] This submission seems to be based on the misapprehension that a start point of 10 years would only have been appropriate in the case of the robbery of commercial premises. But as this Court confirmed in Mako it is the particular combination of the variable features which requires assessment for sentencing in each case. There were a number of aggravating features to the offending in this case identified above.
[32] Further, in this case, apart from the conviction on the aggravated robbery there was also the wounding with intent to cause grievous bodily harm charge. The sentence was required to reflect the totality of the offending.

Conclusion

[33] For the above reasons, we have concluded the appeal against sentence lacks merit. There is no basis to extend the time for appeal.

Result

[34] The application for leave to extend time to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Manuel DC Hamilton CRI-2006-019-9161 17 October 2007.
[2] R v Patrick [2008] NZCA 115.
[3] R v Mako [2000] 2 NZLR 170.
[4] At [58].
[5] R v Fenton [2008] NZCA 379/
[6] At [12].
[7] R v Hita CA505/05 29 November 2006.
[8] R v Cook [2010] NZCA 87.

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