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MATENGA v R [2004] NZCA 171 (4 August 2004)

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MATENGA v R [2004] NZCA 171 (4 August 2004)

Last Updated: 23 August 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/04

THE QUEEN

v

NICHOLAS RUSSELL MATENGA

Hearing: 20 July 2004

Coram: O'Regan J
Panckhurst J
Paterson J

Appearances: M I Koya for Appellant
D J Boldt for Crown

Judgment: 4 August 2004

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1] Mr Matenga pleaded guilty to ten charges of fraud laid indictably, one charge of theft and one charge of fraud which was laid summarily. He was sentenced to two years imprisonment on the indictable fraud counts, all terms being concurrent, and also received concurrent sentence of six months imprisonment on the summary fraud charge, and on the theft charge. The sentencing judge, Judge Hobbs, declined Mr Matenga’s application for leave to apply for home detention. Mr Matenga appealed to this Court against that refusal. However, his counsel also sought the leave of the Court to amend the notice of appeal to include an appeal against the two year sentence, and that leave was granted.

Background

[2] The indictable fraud charges related to five instances of the appellant applying for and obtaining credit cards using false details, and then using those credit cards to obtain goods and services. The total amount of credit which he obtained using those credit cards was $12,370.37. The offences took place on three occasions in 1998 and two occasions in early 2000. In each case the credit card was used for a large number of small purchases over a period of weeks. No payments were ever made in respect of the amount owing on these credit cards, though property of about $1,000 has been recovered.
[3] The appellant was arrested on the indictable fraud charges, and released on bail. While he was on bail he committed theft of a pool cleaning device which had a value of approximately $766.
[4] After he was committed for trial for the indictable fraud charges, the appellant applied for and obtained a New Zealand passport under a false name and absconded to Australia. He was apprehended in Australia, spent a period of about four months in custody in Australia and was then returned to New Zealand in March 2004. He pleaded guilty to all charges immediately after his return to New Zealand.
[5] The indictable fraud charges were committed while the appellant was subject to a suspended term of imprisonment for previous charges of obtaining credit by fraud and fraudulent use of a document.

District Court sentencing

[6] The Judge had before him a pre-sentence report which recorded that the appellant had an extensive list of previous convictions, having served three terms of imprisonment, five sentences of periodic detention and a sentence of supervision. In all, the appellant had 18 previous convictions for fraud charges. The report said that the appellant showed some insight into his offending and the impact it has on his family. However his risk of re-offending was assessed as high. There was some debate in this Court as to the probation officer’s views on re-offending, so we will quote the actual words he used. They were:

Nicholas Matenga’s risk of re-offending is assessed as high. This could be offset if he maintains motivation to change and remain in the community. He has the support of his wife and mother-in-law. He expressed remorse for his offending but tendered (sic) to minimise his alcohol usage and blamed the Police for his flight to Australia.

[7] The Judge noted there were a number of aggravating features, particularly:

(a) Forty previous convictions for offences of dishonesty;

(b) The appellant was subject to a suspended prison sentence at the time of the offending;

(c) The appellant was on bail when the theft offence was committed.

[8] The Judge identified as mitigating factors the following:

(a) The appellant pleaded guilty, though the Judge noted this was only after his return to New Zealand (having absconded to Australia) and that he therefore took this into account only to a limited extent;
(b) There was another mitigating factor that had been the subject of a joint memorandum from counsel to the sentencing judge. We will call this the second mitigating factor.

[9] The Judge referred to the decision of this Court in R v Singh (2003) 20 CRNZ 158 in which a sentence of two years imprisonment for 13 counts of credit card fraud involving about $3,000 was reduced on appeal to 18 months imprisonment. However an appeal against refusal to grant leave to apply for home detention was dismissed. The Judge noted there was some elements of the present offending which made it more serious than that in Singh, particularly the absence of a genuine reparation offer, the fact that the sentences were committed while the appellant was subject to a suspended sentence and on bail, and the higher amount of money involved.
[10] The Judge adopted a starting point of three years imprisonment on the ten indictable fraud counts, and increased this to three and half years to take account of the aggravating factors. He gave a discount of 12 months for the late guilty plea, and a further six months discount for the second mitigating factor. He declined leave to apply for home detention because of the serious nature of the offending and the fact that the appellant was assessed as having a high risk of re-offending.
[11] Counsel for the appellant, Mr Koya, provided to the Court material which expanded on the material placed before the sentencing Judge, including:

(a) A letter from a prospective employer of the appellant, indicating that an offer of employment would be extended if Mr Matenga were released into the community;
(b) A letter from Mr Matenga’s wife recording the difficulties she faces in looking after their children on her own. She is now five months pregnant with their fourth child;
(c) A letter from the appellant’s mother-in-law who is a social worker, and who indicates in the letter that she will be able to assist the appellant with the right programmes and counselling to aid his rehabilitation upon his release;
(d) A letter from the appellant himself indicating that he considers his criminal offending is now behind him and that he is motivated to change;
(e) A whanau report prepared by the appellant’s mother-in-law indicating a programme for support for the appellant from his whanau if he is released.

[12] Counsel also provided to the Court a copy of the joint memorandum referred to in paragraph [8](b) above.

Appeal against two year sentence

[13] As indicated earlier Mr Koya applied to amend the notice of appeal to include an appeal against the term of imprisonment of two years. The ground put forward in support of this appeal is that the Judge did not provide adequate recognition for the second mitigating factor. The Judge provided discounts totalling 18 months to recognise the appellant’s guilty plea (which was made only after the appellant had breached bail and absconded to Australia) and six months for the second mitigating factor. In our view the total discount of 18 months for these two factors is sufficient recognition of those factors. Accordingly, we see no reasons to disturb the two year sentence imposed by the Judge on this ground.

Appeal against refusal of leave to apply for home detention

[14] Mr Koya noted that the Judge refused leave because of the seriousness of the offending, and accepted that the offending was serious. However he took issue with the other ground for the refusal, namely the high risk of re-offending. In that regard Mr Koya emphasised the qualification to the probation officer’s assessment that the appellant was at high risk of re-offending, as outlined in para [6] above. He noted the support available to the appellant from his wife and mother-in-law, the obvious qualifications which his mother-in-law had to influence his life and set in place programmes to ensure that he had the best possible chance to rehabilitate himself, and the appellant’s own expression of motivation to change. He also asked us to take into account the second mitigating factor.
[15] Counsel for the Crown Mr Boldt noted the statement by this Court in R v Barton [2000] 2NZLR 459 at 463 that this Court would not readily interfere with discretionary assessments made by Judges in relation to applications for leave to apply for home detention. He said that it was necessary for the appellant to establish that the Judge had erred in principle or was plainly wrong, and that he had not done so. He drew some support from the decision of this Court in R v Singh, to which reference has already been made, where leave to apply for home detention was refused in circumstances of offending having some similarities to the present case. He also drew parallels with the decision of this Court in R v Whitelaw CA392/01 21 February 2002.
[16] Mr Boldt submitted that the Judge had not overlooked the second mitigating factor, and had provided adequate recognition for it. He said that, in any event, this was not a significant factor in determining whether leave to apply for home detention should be given, as it had already been taken into account in determining the length of the term of imprisonment to be imposed. He said that the seriousness of the offending, the fact that it had occurred while the appellant was subject to a suspended sentence and on bail and the fact that the appellant had absconded to Australia while on bail all indicated that he was a poor candidate for home detention.
[17] We reiterate the comments made in R v Barton as to the reluctance of this Court to interfere with the discretion exercised by sentencing Judges in relation to leave to apply for home detention. In our view, the Judge was entitled to reach the conclusion in this case that it was not appropriate to grant leave, largely for the factors outlined by Mr Boldt. We do not accept that the Judge overstated the high risk of offending, given the view expressed by the probation officer, and the appellant’s past record. While the material provided to this Court indicates a commendable motivation to change and a high degree of family support, those factors were adequately weighed by the Judge.

Result

[18] For the above reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	The indictable fraud charges related to five instances of the appellant applying for and obtaining credit cards using false details, and then using those credit cards to obtain goods and services. The total amount of credit which he obtained using those credit cards was $12,370.37. The offences took place on three occasions in 1998 and two occasions in early 2000. In each case the credit card was used for a large number of small purchases over a period of weeks. No payments were ever made in respect of the amount owing on these credit cards, though property of about $1,000 has been recovered.
[3]	The appellant was arrested on the indictable fraud charges, and released on bail. While he was on bail he committed theft of a pool cleaning device which had a value of approximately $766.
[4]	After he was committed for trial for the indictable fraud charges, the appellant applied for and obtained a New Zealand passport under a false name and absconded to Australia. He was apprehended in Australia, spent a period of about four months in custody in Australia and was then returned to New Zealand in March 2004. He pleaded guilty to all charges immediately after his return to New Zealand.
[5]	The indictable fraud charges were committed while the appellant was subject to a suspended term of imprisonment for previous charges of obtaining credit by fraud and fraudulent use of a document.

[9]	The Judge referred to the decision of this Court in R v Singh (2003) 20 CRNZ 158 in which a sentence of two years imprisonment for 13 counts of credit card fraud involving about $3,000 was reduced on appeal to 18 months imprisonment. However an appeal against refusal to grant leave to apply for home detention was dismissed. The Judge noted there was some elements of the present offending which made it more serious than that in Singh, particularly the absence of a genuine reparation offer, the fact that the sentences were committed while the appellant was subject to a suspended sentence and on bail, and the higher amount of money involved.
[10]	The Judge adopted a starting point of three years imprisonment on the ten indictable fraud counts, and increased this to three and half years to take account of the aggravating factors. He gave a discount of 12 months for the late guilty plea, and a further six months discount for the second mitigating factor. He declined leave to apply for home detention because of the serious nature of the offending and the fact that the appellant was assessed as having a high risk of re-offending.
[11]	Counsel for the appellant, Mr Koya, provided to the Court material which expanded on the material placed before the sentencing Judge, including:

[14]	Mr Koya noted that the Judge refused leave because of the seriousness of the offending, and accepted that the offending was serious. However he took issue with the other ground for the refusal, namely the high risk of re-offending. In that regard Mr Koya emphasised the qualification to the probation officer’s assessment that the appellant was at high risk of re-offending, as outlined in para [6] above. He noted the support available to the appellant from his wife and mother-in-law, the obvious qualifications which his mother-in-law had to influence his life and set in place programmes to ensure that he had the best possible chance to rehabilitate himself, and the appellant’s own expression of motivation to change. He also asked us to take into account the second mitigating factor.
[15]	Counsel for the Crown Mr Boldt noted the statement by this Court in R v Barton [2000] 2NZLR 459 at 463 that this Court would not readily interfere with discretionary assessments made by Judges in relation to applications for leave to apply for home detention. He said that it was necessary for the appellant to establish that the Judge had erred in principle or was plainly wrong, and that he had not done so. He drew some support from the decision of this Court in R v Singh, to which reference has already been made, where leave to apply for home detention was refused in circumstances of offending having some similarities to the present case. He also drew parallels with the decision of this Court in R v Whitelaw CA392/01 21 February 2002.
[16]	Mr Boldt submitted that the Judge had not overlooked the second mitigating factor, and had provided adequate recognition for it. He said that, in any event, this was not a significant factor in determining whether leave to apply for home detention should be given, as it had already been taken into account in determining the length of the term of imprisonment to be imposed. He said that the seriousness of the offending, the fact that it had occurred while the appellant was subject to a suspended sentence and on bail and the fact that the appellant had absconded to Australia while on bail all indicated that he was a poor candidate for home detention.
[17]	We reiterate the comments made in R v Barton as to the reluctance of this Court to interfere with the discretion exercised by sentencing Judges in relation to leave to apply for home detention. In our view, the Judge was entitled to reach the conclusion in this case that it was not appropriate to grant leave, largely for the factors outlined by Mr Boldt. We do not accept that the Judge overstated the high risk of offending, given the view expressed by the probation officer, and the appellant’s past record. While the material provided to this Court indicates a commendable motivation to change and a high degree of family support, those factors were adequately weighed by the Judge.