Manzone v R [2020] NZCA 389 (4 September 2020)

Last Updated: 8 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA313/2020 [2020] NZCA 389

	BETWEEN	BENJAMIN DAVID MANZONE Applicant
	AND	THE QUEEN Respondent

Court:	Goddard, Ellis and Dunningham JJ
Counsel:	J D Lucas for Applicant T R Simpson for Respondent
Judgment: (On the papers)	4 September 2020 at 10.00 am

JUDGMENT OF THE COURT

The application for leave to appeal under s 253(1) of the Criminal Procedure Act 2011 is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

The application for leave to appeal

• [1] Mr Manzone was sentenced to four years’ imprisonment in the District Court.^[1] His appeal to the High Court against that sentence was dismissed.^[2]
• [2] Mr Manzone seeks leave to bring a second appeal against sentence to this Court under s 253(1) of the Criminal Procedure Act 2011 (CPA). He submits leave should be granted because his appeal involves a matter of general or public importance, namely the correct approach to sentencing individuals who are deported to New Zealand and are “returning offenders” for the purposes of the Returning Offenders (Management and Information) Act 2015. He says that determination of his appeal will be directly relevant to the sentencing of other returning offenders in similar circumstances.

District Court sentencing

• [3] Mr Manzone arrived in New Zealand in June 2018. He had been deported from Australia after serving a term of imprisonment. He had lived all his adult life in Australia: his family left New Zealand when he was eight weeks old.
• [4] Mr Manzone pleaded guilty in the District Court to offending over a period of four weeks that included a robbery, a series of thefts and related offending:

(a) 20 November 2018: theft of a handbag from a vehicle situated in supermarket carpark while the owner sat in the driver’s seat, and theft of luggage from a parked van after smashing through the rear window of the vehicle;

(b) 29 November 2018: theft of a New Zealand Post courier van when a driver left the engine running to deliver parcels;

(c) 1 December 2018: theft of a van from a residential address, and theft of five suitcases after breaking into another parked van;

(d) 7 December 2018: theft of a second New Zealand Post courier van, including punching the driver in the chest when he attempted to stop Mr Manzone from driving away (this event was the basis of the robbery charge);

(e) 14 December 2018: theft of a further vehicle, escaping from the vehicle when police attempted to arrest him;

(f) 18 December 2018: theft of a motorbike from a residential property after breaking into a secured shed; and

(g) related offences including receiving, theft, possession of amphetamine, escaping custody, resisting arrest, being found unlawfully in an enclosed yard, and breaching bail.

• [5] In addition to the 20 charges to which Mr Manzone pleaded guilty, he was sentenced for seven “trailer” charges.^[3]
• [6] In the District Court Mr Manzone was sentenced to four years’ imprisonment to reflect the totality of this offending.^[4] Judge Kellar’s sentencing notes describe at some length Mr Manzone’s personal circumstances, including the circumstances of his return to New Zealand.^[5]

High Court appeal

• [7] Mr Manzone appealed to the High Court against that sentence. He argued that the District Court Judge erred in not taking into account Mr Manzone’s personal circumstances as a returning offender under the visa cancellation policy of the Australian Government.^[6] Counsel for Mr Manzone confirmed that there was no challenge to the District Court Judge’s approach to sentencing apart from the submission that the end sentence did not make any adjustment for Mr Manzone’s personal circumstances arising out of his deportation.^[7]
• [8] Nation J did not accept that the District Court Judge failed to consider Mr Manzone’s personal circumstances arising out of his deportation. In particular, the Judge did not accept that the District Court Judge erred in not referring expressly to s 8(i) of the Sentencing Act 2002 in sentencing Mr Manzone. The Judge said:

[46] The obvious purposes of Mr Manzone’s sentencing here were to hold him accountable for the harm he had done, to denounce his offending, to try and deter him from further such offending and to protect the public from similar offending. It is when the Court is considering the imposition of a sentence having a rehabilitative purpose that it must take into account the offender’s wider background. The Judge was not considering imposing a sentence for rehabilitative purposes.

[47] The fact that the Judge does not mention a particular sentencing principle is not, in itself, a ground for an appeal against the sentence imposed or order made.

[48] The Sentencing Act does, in various respects, require the sentencing Judge to have regard to the personal circumstances of an offender. The weight to be attached to those circumstances or to a particular principle in s 8 will be largely determined by the purpose or purposes of the sentencing decision and the facts of the case.

[49] Even if the personal circumstances of an offender have caused him some hardship which has led to the offending, there does not inevitably have to be some reduction in an otherwise appropriate sentence of imprisonment. That was the case here.

...

[50] Although Mr Manzone’s offending occurred after he faced inevitable challenges in being deported to New Zealand, there was no error in the way he was sentenced. The end sentence imposed was not manifestly excessive.

(Footnotes omitted.)

• [9] The appeal was dismissed.

Application for leave to appeal to this Court

• [10] This Court may grant leave to bring a second appeal against sentence under s 253(1) of the CPA only if the Court is satisfied that:

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

• [11] Mr Manzone submits that his appeal involves a matter of general or public importance because of the significant number of deportees returning from Australia to New Zealand. A significant proportion of these returning offenders commit offences in New Zealand following their return. Mr Lucas, counsel for Mr Manzone, says this raises issues of how the courts, when it comes to sentencing those individuals for their offending in New Zealand, should take into account the circumstances in which they have returned to New Zealand. Mr Lucas emphasises issues raised by Mr Manzone’s appeal which he says will be common to the circumstances of other returning offenders: lack of connection with New Zealand; lack of familial support in New Zealand; lack of resources; and dependence on support from Government agencies. Mr Lucas refers to the decision of this Court in Zhang v R confirming that cultural, social and economic deprivation are factors that may be relevant to sentencing, and that isolation and denial of family support for people from overseas in a New Zealand prison can also be treated as a mitigating factor.^[8] Mr Lucas submits that this appeal will address those issues in relation to people who have been deported, and have returned to New Zealand against their will. He submits there is a need for consistency in approach to people in similar circumstances.

Decision

• [12] We do not consider that Mr Manzone’s proposed appeal raises any issue of general or public importance. In sentencing an offender a Judge must take into account the offender’s relevant personal circumstances, not only under s 8(i) but also under s 8(h) and s 9(2). Thus the offender’s background may be relevant not only in relation to the rehabilitative purpose of a sentence, but also as a factor relevant to culpability, and to the implications of different sentencing options more generally.
• [13] Both the sentencing notes and the High Court decision refer at some length to Mr Manzone’s personal circumstances. It is clear that those circumstances were taken into account in determining an appropriate overall sentence. The absence of express reference to s 8(i) in the sentencing notes is not in itself grounds for an appeal.^[9]
• [14] We do not consider that there is any general issue in relation to the sentencing of returning offenders from Australia that requires consideration by this Court. The background and personal circumstances of returning offenders can appropriately be dealt with in accordance with established sentencing methodology. No special rules are required in relation to returning offenders. It will be a matter for the sentencing judge to determine which factors are relevant to sentencing of a particular offender for a particular offence, in accordance with that methodology. Those circumstances may vary significantly as between different returning offenders, depending on their circumstances in Australia, the circumstances of their return, and the position they find themselves in New Zealand. Identifying relevant circumstances, and the nexus between those circumstances and the offending for which a sentence is to be imposed, will require context-specific evaluation in each case. It is neither necessary nor desirable for this Court to attempt to lay down any general principles that apply to this category of offender.
• [15] The application for leave to appeal was not made on the basis that there is a risk of a miscarriage of justice, apart from the argument considered above. Nothing in the material we have seen suggests that there is a risk of a miscarriage of justice, or that the sentence imposed in the District Court is manifestly excessive.

Result

• [16] In these circumstances, the test for leave to bring a second appeal under s 253(1) of the CPA is not met. The application for leave to appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Manzone [2020] NZDC 1764 [Sentencing notes].

^[2] Manzone v R [2020] NZHC 948 [High Court decision].

^[3] Sentencing notes, above n 1, at [5]; and High Court decision, above n 2, at [2].

^[4] Sentencing notes, above n 1, at [21].

^[5] At [2]–[3] and [18]–[19].

^[6] High Court decision, above n 2, at [19].

^[7] At [28].

^[8] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162]–[163].

^[9] Sentencing Act 2002, s 31(4).