Manukau v R [2011] NZCA 108 (28 March 2011)

Last Updated: 5 April 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA761/2010 [2011] NZCA 108

BETWEEN IVAN LESLIE MANUKAU Appellant

AND THE QUEEN Respondent

Hearing: 21 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: K W Burroughs for Appellant J M Jelas for Respondent

Judgment: 28 March 2011 at 3 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Manukau appeals the minimum non-parole period imposed following his plea of guilty to murder.[1] Mr Manukau’s sole complaint is that his twelve year term was excessive given that a co-offender, Adrian Norris, received a ten year term.

Facts

[2] The victim, Mr Piki Kingi, was apparently a drug dealer. Two of the four people charged with his murder had separate grievances with him arising from various drug activities. One of the offenders, Mr Todd Marteley, had assisted Mr Kingi in stealing a quantity of a precursor substance from a manufacturer. Mr Marteley believed Mr Kingi had then sold the product on to gang members without accounting to Mr Marteley for his share.
[3] The second of the four offenders with a grievance was the present appellant, Mr Ivan Manukau. He was a customer of Piki Kingi’s, and his annoyance stemmed from a belief that Mr Kingi had been supplying him with substandard product.
[4] Messrs Marteley and Manukau, who were known to each other, met at Manukau’s house to plan their revenge. They were accompanied by Moana Heremaia, who was Mr Marteley’s de facto partner, and Adrian Norris. He was a younger man who was related to Ms Heremaia and who spent considerable time at Mr Manukau’s home, occasionally sleeping over.
[5] The plan agreed upon was to lure the victim to Todd Marteley’s house, and there set upon him. Ms Heremaia and Mr Manukau were to act as lookouts from a nearby park. Meanwhile, Marteley and Norris would wait inside and attack Mr Kingi when he arrived to sell the drugs. Mr Manukau suffers from poor health and would have been of little assistance in the physical assault.
[6] The pretext used to get Kingi to the house was a drug deal. Mr Marteley falsely claimed to Mr Kingi that he had recently sold a boat and, therefore, had available cash for a drug purchase.
[7] The plan was duly put into effect. Mr Marteley had sharpened a tomahawk for the occasion and Norris was armed with a cricket bat obtained from Mr Manukau. The assault began by Norris striking with the cricket bat. Thereafter, blows were inflicted with both weapons. It is believed death would have occurred quickly, although there were some defence wounds.
[8] Following the attack, Mr Kingi was wrapped in a rug. He was placed in his car, which was driven to another area and abandoned. It was not realised by the authorities that there had been a homicide until Mr Marteley contacted police. Marteley said there had been an incident at his house but that he was not involved. This led the police to go to his house and discover blood, and obvious signs of an attack. Inquiries and interviews with the offenders eventually led to discovery of the events just described.

Sentence under appeal

[9] On the sentencing occasion under appeal, Heath J was required to sentence Messrs Manukau and Norris, and Ms Heremaia. The fourth offender, Mr Marteley, had also pleaded guilty, but at the time of this sentencing was maintaining an application to vacate his plea.
[10] The sequence in which the pleas were entered is significant. During the investigative process, the various offenders had told different stories. None had admitted guilt for murder, and Mr Marteley had given several different versions of events. Very close to trial, Mr Norris changed his stance. He pleaded guilty to murder, and made a statement setting out what had happened. He also agreed to testify. This plea, and his stated willingness to testify, was to prove the catalyst. Three weeks later the other three also pleaded guilty. Messrs Marteley and Manukau admitted to murder and Ms Heremaia to manslaughter.[2]
[11] At sentencing the parties accepted, and Heath J agreed, that s 104 of the Sentencing Act 2002 was engaged. This meant that, in addition to life imprisonment, a minimum term of imprisonment of at least 17 years was required, unless such a term would be “manifestly unjust”.
[12] Heath J, balancing the various factors, but particularly the personal circumstances of each offender, concluded 17 years would be manifestly unjust. This then required his Honour to assess what minimum non-parole term, if any, above ten years was required. The factors taken into account were:

Adrian Norris	–	the timing of the plea would normally attract a 20 per cent credit. That figure would incorporate remorse;
	–	significant credit should be given for his frankness, and the willingness to testify;
	–	a period in excess of ten years was not necessary.
Ivan Manukau	–	not one of the actual assailants but by his plea Mr Manukau acknowledged that he knew death might well occur. He was to be regarded as an active participant in the overall enterprise;
	–	timing of his plea would normally attract 10 per cent discount;
	–	had some influence over Mr Norris and this had played some role in the latter being involved;
	–	suffered from significantly poor health which merited recognition;
	–	a period in excess of 12 years was not required.

Appellant’s submissions

[13] Mr Burroughs submits that standing back, the end result is unjust. The person who participated in the assault and inflicted some of the blows that led to Mr Kingi’s death has ended up with two years less than the one who was physically unable to be involved, and who just acted as a lookout.
[14] Several points are made in support. First, it is suggested that the text messaging between the offenders shows that Mr Manukau had suggested to Norris, not long before the assault, that it should not go ahead at that time. Second, Norris was able to testify against Mr Marteley only because he was present and doing the assault. It is unfair that his presence and participation in the assault gives him an advantage over a co-accused who only acted as a lookout, and so was not in a position to give such evidence.
[15] It is suggested Mr Manukau was equally willing to testify, but what he could offer was not of interest to the Crown. However, Mr Burroughs acknowledged that the offer to testify was made only after he pleaded. This was, therefore, three weeks after Mr Norris had pleaded, made his statement, and committed to testifying.
[16] Finally, it is noted that Mr Manukau also had compelling personal factors. He suffers from Hepatitis C and has a history of depression. The expert advice was that he would struggle to survive a period of imprisonment. It is submitted that this factor merited significant weight. Further, it was sufficient to effectively offset any credit to which Mr Norris might be entitled, meaning their sentences should at least be the same.
[17] The Crown’s submissions are reflected in the Court’s decision.

Decision

[18] The test for disparity as a basis for a sentence appeal was set out in R v Rameka.[3] In order to found a successful appeal the disparity between the two offenders must appear unjustifiable and gross. In our view neither concept is present here.
[19] The starting point is that Heath J determined that a 17 year term would be manifestly unjust. Once the mandatory level contained in s 104 is displaced, it is the sentencing judge’s task to assess what minimum term, if any, over the standard ten years is necessary to meet the concerns set out in s 103(2) of the Act. These considerations are accountability, denunciation, deterrence (both general and individual), and protection of the community. Undertaking this exercise, Heath J determined that the answer was none for Mr Norris, a further two years for Mr Manukau, and a further four years for Mr Marteley.[4]
[20] We can briefly state our reasons why the appeal must fail. First, we do not accept the text messaging referred to by Mr Burroughs carries the implication or deserves the credit for which the appellant contends. It occurs late in the piece. At the time the texts were exchanged, Mr Manukau was clearly in uncomfortable wet circumstances, and unhappy with his lot. Further, he was becoming nervous because he thought people were noticing him. If they were, this would not be surprising given he was apparently standing out in the rain in the park. Any suggestion about stopping the enterprise was, at most, a suggestion of adjournment driven by personal comfort. We would, however, not even elevate this exchange to that level and do not consider it was relevant to the sentencing.
[21] Second, in our view, the two men were equal in their culpability. Although Mr Manukau did not physically assault Mr Kingi, he was an instigator in the plan. The original meeting was at his house. He provided the cricket bat. He acted as lookout and kept in touch by text message. This equality of culpability means that the only factors that might separate the men in their final sentences would be factors personal to them.
[22] When one then turns to such factors, there is a discernible basis for a difference in outcome. Mr Manukau was viewed by the Judge as having been influential in Mr Norris being involved. Despite the appellant’s criticism of this assessment, we see no reason to differ. Mr Manukau was the older man. Mr Norris spent considerable time at his house, and occasionally stayed over. It was Mr Manukau who had the grievance, not Mr Norris. The Judge did not overstate the factor and was entitled to have regard to it.
[23] Although Mr Manukau had health factors which could be, and were, recognised as significant, Mr Norris had played a significant role in the resolution of the case.[5] It was his plea, statement and commitment to testify that effectively turned things around. A trial was imminent with all three men contesting their liability. It was Mr Norris’ change of heart that led to the other pleas and to there being no trial. It was well open to the sentencing Judge to give this significant credit that exceeded the recognition of Mr Manukau’s health issues.
[24] Generally we do not accept there is unfairness in Mr Norris gaining an advantage from being in a position to testify against Mr Marteley. Credit comes not from being present, but from his decision to break ranks, to tell the truth and to testify. It is these factors that have made the difference. It was always open to Mr Manukau to do likewise. Although he was not present at the time, he still had evidence to give, and could have offered. Instead he remained silent until Mr Norris had acted. He cannot now complain that Mr Norris receives credit for this.
[25] In summary, we are of the view that the disparity in sentence is explicable and based on factors that made it open to the Judge to assess final culpability differently. As is always the case, different judges may have reached a different balance, but the disparity between those two sentences is neither gross nor unjustifiable. Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Norris HC Hamilton CRI-2009-019-9786, 30 September 2010.
[2] She is not considered further.
[3] R v Rameka [1973] 2 NZLR 592.

[4] Mr Marteley eventually withdrew his application to vacate his plea, and was sentenced by Heath J to a minimum term of imprisonment of 14 years.

[5] This is also reflected in the different sentences for Mr Manukau and Mr Marteley. Here, there is a difference in the guilty pleas, but also the health issues personal to Mr Manukau.