R v Manuel [2017] NZDC 999 (20 January 2017)

Last Updated: 24 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2016-031-000555 [2017] NZDC 999

THE QUEEN

v

_{BRENDAN WADE MANUEL}

Hearing:	20 January 2017
Appearances:	K van der Plas for the Crown D Flinn for the Defendant
Judgment:	20 January 2017

_{NOTES OF JUDGE J D LARGE ON SENTENCING}

[1] Brendan Wade Manuel appears for sentence today, he having accepted a sentencing indication I gave on 4 November 2016. At that time I indicated an end sentence in the vicinity of two years and three months.

[2] Before I indicate the end sentence Mr Manuel I am obliged to go through and explain the basis upon which I arrived at the sentence I had proposed in the sentencing indication. Both the Crown and your lawyer have filed submissions which were of assistance at the sentencing indication hearing. You pleaded guilty to a charge of injuring with intent to injure. This offending related to your partner of some three years. You have five previous convictions for family violence assaults

_{against her.}

R v BRENDAN WADE MANUEL [2017] NZDC 999 [20 January 2017]

[3] On the night in question, a heated argument took place at your home in Levin. As a consequence, she left the house and went to her sister’s place. You arrived there and she answered the door. You ordered her to leave with you. She told you to calm down and said she would go with you. As she was walking down the stairs at the front of the house you pushed her from behind and she fell and landed on the concrete on her stomach. While she was on the ground outside the front door you kicked and punched her, an estimated 12 times about the upper body and head paying particular attention to her face. She raised her arms to protect her head and put herself in the foetal position. During that attack, the victim’s sister heard you say, “You are finished bitch.” She managed to scramble inside but you pursued her and you grabbed her again and threw her outside. During part of that she was thrown against her sister’s car. That impact caused a dent to the right front panel and caused the complainant to slump to the ground on her hands and knees. You then continued kicking and punching her head and face during the prolonged attack. She tried to get up twice but retreated to the foetal position in an attempt to protect herself. You then herded her into the car and ordered her to get into the front seat. She got into the seat. You got into the driver’s seat and drove away. During that journey you punched her twice in the face with your first. She also hit you but the summary which was agreed to and accepted by you was that during the car trip you punched her around 10 times in a frenzied attack which resulted in a significant amount of blood being splattered through the front left interior of the car. A short time after that, she escaped from the car by jumping out while it was moving. You managed to get her back in the car but the vehicle was soon stopped by the police who had been called by a member of the public, they having noticed things and were concerned for the safety of the complainant.

[4] As a result of the attack by you, she sustained significant swelling and bruising to both eyes, swelling and bruising to her nose, cuts and bruising to her forehead, temple, lips and inside her mouth. She had bruising all over her ribs and arms, bruising and grazes to her legs and bad swelling and bruising to her right ankle. She received medical attention the following morning. She was required to use pain relief for three weeks. She could not walk comfortably for about the same period of time and her facial injuries remained visible for about a month.

[5] You gave the explanation that she fell over coming out of the house because she had been drinking. You denied that saying she had injured herself when she fell out of the car. That was the summary of facts. You pleaded guilty to that summary of facts and it was on that basis that the indication I mentioned earlier was given.

[6] To set a starting point I must consider the principles under ss 7 and 8

Sentencing Act 2002. You have to be held accountable for the harm done to the victim. There has to be a sense of responsibility in you and acknowledgement of that harm. There has to be provision for the interests of the victim. There also must be denunciation of your conduct and deterrence towards you and other people in the community. Balanced against that, I also have to impose a sentence that will assist your rehabilitation and reintegration into the community when you are released from prison. I have to take into account the gravity of the offending, the seriousness of the offending and I have to impose a sentence that is consistent with other sentences.

[7] Both counsel acknowledge the lead case is Nuku v R1. Nuku incorporated the culpability factors outlined in R v Taueki2. In terms of the bands of offending in Nuku v R it is quite clear in my mind that band 2 is the appropriate starting point of a sentence of up to three years’ imprisonment given the aggravating features in respect

of this offending. I think the Crown is correct. There was premeditation because you followed her from your flat to her sister’s where she had sought to get away from you after the initial argument. There was the attacking of the head that occurred on more than one occasion and the extent of violence was such that it is a significant factor. The attacking to the head was both outside the car as well as inside the car. There is also the factor of her being vulnerable and under your control. There was a psychological control exercised by you. There is also the history of abuse, the past history and your past offending.

[8] The other case which counsel referred to and I think is relevant in here is a case of Brown v R3. That talked of a, “Sustained attack.” The offending here is analogous to that in Brown v R because there was a sustained attack by you on her

_{throughout that period. It is that basis that causes me to adopt the start point which I}

1 _{Nuku v R [2012] NZCA 584}

2 _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)}

3 Brown v R [2014] NZCA 93

referred to in my sentence indication of two years and eight months. I also considered that there should be an uplift of two months given your previous convictions and also a further uplift of a further two months for the offending while you were on release conditions. At that point there was a sentence of three years proposed. I then took into account and I am advised to look at the mitigating factors. The biggest mitigating factor is your plea of guilty and acknowledgement of your responsibility for those actions. I was required to read into the record the full summary of facts. I am also required to read into the record your remorse. I will come to remorse shortly but first of all I must apply the requisite discount for your guilty plea. The three years that I have arrived at with all of the aggravating features should be discounted by 25 percent, hence the end sentence of two years, three months which I proposed in the sentence indication.

[9] What Mr Flinn now seeks for you is a further reduction given your remorse that he says you initially expressed in your comments to the report writer and he referred me to the paragraph under the heading “Remorse and Offers to Make Amends” and I quote, Mr Manuel said, “He is gutted and not proud of his actions. It is not easy to talk about and I think about it every day.” That made an impression on me when I read that Mr Manuel. It indicated to me that you were explaining to the report writer in your own words how you truly felt. If you had said I am sorry it would not have had the same impact but I take from those words and the fact that the report writer quoted them directly from you as meaning they were genuinely spoken words and that is how you genuinely feel.

[10] I read your letter that you produced today. The Crown quite properly asks when that was written. You, through Mr Flinn, advise it was written around about

15 December. Letters of remorse carry more weight when they have age. If they are written the day before a sentencing Courts sometimes find it difficult to accept that they are written for the genuine reason of remorse rather than an attempt to lessen the outcome of a sentence. I have read that letter Mr Manuel and I hope what you say in that is what you truly feel. I hope it is what you truly intend to do. You have recognised that others have tried to help you. You have particularly mentioned your probation officer, Bryce. He has tried to help you. You have said you have not been able to take that help. You have said:

I am guilty for my charge so today I accept what punishment you give me but also take into consideration please, I am sorry to my wife and kids. I am working on my life skills and beliefs, behaviour warning signs possibly while in prison and also when I get released from prison.

[11] You are the only one who can do that. Bryce, the probation officer, any other support person including your partner and the children cannot do that. You have written the words down on the paper and you may talk the talk but now you have really got to walk the walk when you get out. What I have to consider is whether I reduce the sentence that I had indicated taking into account that remorse.

[12] The Crown have suggested that – well they have not said it but I think I can infer that they are suggesting I should be careful about the remorse issue because you were endeavouring to pass some of the blame or responsibility for your behaviour onto your partner. I note that they referred me to paragraphs on page two of the pre-sentence report under the heading “Relationships” where it is recorded, “You accepted part of the problem was that neither were willing to compromise and that is why joint counselling would be beneficial for both of them.” In addition, the last paragraph on that page where it is recorded that you said that when you removed yourself from the gang your partner did not know, “How hard it was,” and he became frustrated.

[13] I do not draw the same inference the Crown invite me to. I think those statements are fair and true. If neither of you are going to compromise, joint counselling is going to assist. I do not infer that because you were both strong-willed people you were saying that your partner provoked you.

[14] In respect of the second comment from the Crown I do not draw that adverse inference either because I accept that it would be hard to withdraw back from the gang situation. She may not have understood that but it is not her fault that you became frustrated. That is your problem. You have to deal with that. She has no responsibility for your frustration nor has she any responsibility for your actions. I was pleased to read that at the time of the interview you told the probation reporter that you now choose the family before the bulldog. I hope that continues so that when you are released the release conditions I intend to impose will assist you to maintain your family relationships.

[15] I note there was an attempt and I give you credit for the endeavours in respect of restorative justice that could not be facilitated. I draw no adverse inference against you or the victim for that. It is unfortunate it was not able to be facilitated but the reality was it was not.

[16] At the end of the day I do intend to make a further discount for remorse. I cannot make it as great as I might otherwise like to given the gravity of the offending but I will acknowledge remorse by deducting one month from the sentence of two years, three months and the end sentence is one of two years and two months’ imprisonment.

[17] There will be release conditions imposed but not by me.

J D Large

District Court Judge