Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 26 October 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2012-425-35
CRI-2012-425-36 [2012] NZHC 2613
JASON DAVID MANN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 8 October 2012
Counsel: J K Fraser for Appellant
L Cole for Respondent
Judgment: 8 October 2012
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
JASON DAVID MANN V NEW ZEALAND POLICE HC INV CRI-2012-425-35 [8 October 2012]
[1] Mr Mann pleaded guilty in the District Court to two charges of assaulting a female, one charge of wilful damage and one charge of assault with a weapon.
[2] On 22 June 2012, Judge Phillips sentenced him to an effective term of one year eight months imprisonment.[1] He now appeals against that sentence on the basis that the Judge erred in the manner in which he constructed the sentence, and this has resulted in an end sentence that is manifestly excessive.
[3] Mr Mann pleaded guilty after having received a sentence indication from the same Judge on 15 June 2012. I take the structure of the sentence to be that described by the Judge in his sentencing indication.
The facts
[4] The Judge set out the relevant facts in both the sentence indication and in his sentencing notes. These reveal that the charges arose out of two separate incidents. The first occurred on 26 February 2012 when Mr Mann went to his ex-partner’s address, supposedly to assist with behavioural problems being exhibited by the complainant’s son. He was intoxicated when he arrived, and was carrying beer with him. At that stage Mr Mann’s ex-partner was 31 weeks pregnant. An argument occurred, and Mr Mann’s former partner told him to leave. As he was leaving, he threw a bottle through the window of the address. He then came back inside, and was asked to leave again. He responded by grabbing his former partner by the neck, pushing her backwards and causing her to fall onto the couch. He was then removed from the premises by his associates. All of this occurred in front of the complainant’s 4 year old son, of whom Mr Mann is the father.
[5] Mr Mann was arrested and charged in relation to the events that occurred in this incident. He was then released on bail.
[6] Approximately three months later, on 5 May 2012, Mr Mann went uninvited to another address, again occupied by a person with whom he had been involved in
an earlier relationship. This relationship had, however, ended approximately ten years earlier.
[7] Again, Mr Mann was intoxicated and, again, some form of argument occurred. Without warning, he then punched the complainant to the head on three separate occasions. He then told her that he was going to jail anyway, and did not really care what happened. This preceded a further punch, this time to the ribs. Mr Mann then got up and went to the kitchen. He told the complainant that he was going to slice her up. He returned with a black handled carving knife that had a blade 20 centimetres in length. He leaned over the complainant holding the knife in a threatening manner.
[8] The complainant believed during this incident that she was about to be stabbed. She was yelling and screaming at Mr Mann to stop. Her elder daughter then arrived, and tried to get Mr Mann to stop threatening her mother. It took some time before Mr Mann could be persuaded to leave the house. This complainant was left with bruising to the left hand side of her face and forehead, bumps to her head and bruising to her ribs.
The sentence indication
[9] Not surprisingly, the Judge took the second incident as giving rise to the most serious charges. The victim of that incident had described how scared she was a result of the attack that occurred in her own home. She also, as I have already indicated, thought that she was going to be stabbed.
[10] The Judge took a starting point of 12 months imprisonment on the charge of assaulting this complainant. He added a four month uplift to take into account the use of the knife making a total of 16 months in relation to the first incident. He considered that a starting point of nine months imprisonment was appropriate in relation to the first incident. This left him with an end starting point of 25 months imprisonment on all charges. He observed that the guilty plea in relation to the charges arising out of the first incident would be late, but those in relation to the May charges would be early. He said that overall he would allow 20 per cent for guilty
pleas. This led him to indicate that a final end sentence would be in the vicinity of
20 to 22 months imprisonment. He said, however, that home detention was not an option given several concerning aspects of the offending.
Grounds of appeal
[11] On appeal, counsel for Mr Mann submits that the Judge erred because he took into account Mr Mann’s previous convictions twice. Counsel bases this submission on a passage from the sentencing notes where the Judge said that he would apply an uplift of four months “for your previous matter and the other previous violent offending on the day of the first incident”. As already noted, the Judge also added a four month uplift to reflect Mr Mann’s previous violent convictions.
Decision
[12] I do not consider that the Judge fell into error in this regard. It is clear from the sentencing indication that the Judge applied a four month uplift in relation to the second incident to reflect the fact that Mr Mann had threatened the victim with a carving knife in a particularly intimidating manner. For that reason, I do not consider that the Judge added a double uplift to reflect Mr Mann’s previous convictions.
[13] It is arguable, however, that a 25 per cent uplift was too great to reflect the gravity of Mr Mann’s previous convictions. Although he has a reasonably lengthy list of previous convictions, most of these relate to drug offending and have little or no relevance in the present context. The only previous conviction of any real significance in this context is a conviction for assaulting a female in September
2001. Mr Mann received a sentence of one month’s imprisonment on that charge, so it must have been of some significance. Even so, it seems difficult to justify a 25 per cent uplift in relation to the present charges..
[14] That factor is balanced, however, by the fact that the Judge effectively applied a discount of 31 per cent to reflect Mr Mann’s guilty pleas. I reach this
conclusion because a discount of 20 per cent (as the Judge intended) would have reduced the end starting point of 29 months down to approximately 23 months.
[15] The Judge reduced the end starting point by nine months, however, to take account of guilty pleas. This amounts to a 31 per cent discount which, on the basis of the principles outlined by the Supreme Court in Hessell v R,[2] would not be permissible. When that factor is taken into account, I am satisfied that the end sentence of one year eight months imprisonment was within the available range and cannot be said to be manifestly excessive.
Result
[16] The appeal against sentence is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Invercargill
Counsel:
John K Fraser Law Ltd, Invercargill
[1] New Zealand Police & Anor v Mann DC Invercargill CRI-2012-025-000625, 22 June 2012.
[2] Hessell v R [2011] 1 NZLR 607.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2012/2613.html