R v Conchie [2017] NZDC 28768 (15 December 2017)

Last Updated: 1 September 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-005992

[2017] NZDC 28768

THE QUEEN

v

MATTHEW CHARLES CONCHIE

Hearing:	15 December 2017
Appearances:	G Campbell for the Crown G Morrison for the Defendant
Judgment:	15 December 2017

NOTES OF JUDGE M-E SHARP ON SENTENCING

[1] Matthew Conchie is here to be sentenced on one charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that charge is 14 years’ imprisonment.

[2] The Crown and the defence are not too far apart. The Crown seeks a starting point in the region of six years’ imprisonment with an uplift of six to 12 months for personal aggravating factors and a discount of up to 20 percent for the guilty plea.

[3] The defence suggests that I should sentence Mr Conchie consistent with the sentence indication given by [Judge] Dawson on 2 November 2016 which at the time Mr Conchie declined. That sentence indication recorded that an appropriate starting point was a prison sentence of five and a half years with an uplift by six months for

R v CONCHIE [2017] NZDC 28768 [15 December 2017]

personal aggravating features, less a discount for the guilty plea; that is 20 percent, and he indicated that any further discount for remorse or personal circumstances would be taken into account once the Judge had a pre-sentence report. He said also that he would consider a minimum period of imprisonment subject to seeing a pre-sentence report and he noted correctly that a second strike warning would also be required on the entering of a guilty plea.

My view

[4] I concur with the Crown notwithstanding Judge Dawson’s indication when he heard the matter. I consider that the Crown is correct and that an appropriate starting point is six years’ imprisonment with an uplift of six months for personal aggravating features and a discount of 20 percent for the guilty plea (although that is kind).

[5] I now give my reasons for that starting point bearing in mind that I have arrived at it by virtue of the aggravating factors of the offending consistent with the guideline judgment in R v Taueki1.

[6] This was an offence of extreme violence. Not only did you throw several punches at your victim but you then stabbed the victim once in the chest. It is clear to me from what I read that he nearly died. You are very, very fortunate, as is he, that you are not facing a charge of murder, and to that end I should outline the facts upon which you entered your guilty plea ultimately.

Facts

[7] At about 11.45 pm on 12 June 2016 you were in the building lobby of [number deleted] Queen Street, Auckland City. [The victim] was also present along with two other males. You became involved in an argument with the victim. You became physically aggressive and confrontational to him. You approached him. He walked away and attempted to evade you but you continued to approach him. You threw punches at him. A bystander intervened to place himself between you and the victim, allowing the victim to move away but you became aggressive with the

1 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)

bystander, punching him in the head. He stepped aside and you resumed your aggression towards the victim. You approached him. He retreated into a wall of the lobby. Meanwhile you stabbed him once in the chest. The object that you used penetrated his body between two ribs and punctured his heart as well damaged heart tissue. You then turned and walked away.

[8] The victim was rushed to hospital. His health began to seriously deteriorate. He required immediate heart surgery to repair the damage to the heart. He had a puncture to his right ventricle and a litre of blood had pooled in the chest cavity. While he was being worked on, his heart stopped beating and surgeons had to manually massage it to regain heart rhythm. As I say, he was lucky to live and you are lucky that you do not face a murder charge. It appears that at the time you were under the severe influence of methamphetamine.

[9] The serious injury and extent of the harm is another aggravating feature. I have read the victim impact statement. Clearly, he has suffered hugely, not just physically but emotionally and psychologically as a result of what you did to him. He was due to start a new job immediately after you did this but was unable to prove to ACC that he was working at the time that you attacked him, so was ineligible for ACC compensation. He has not returned to work or, at least, had not at the time these submissions were written. Perhaps that has changed now, I am not sure. In any event, he has struggled financially and apparently is tens of thousands of dollars in debt because of your offending.

[10] The last aggravating feature is that you used a weapon to cause the grievous bodily harm. Whatever you used, and it is not certain, it was clearly a sharp instrument of some description given the damage that it caused.

[11] There are no mitigating factors of the offending.

[12] I consider that these aggravating factors that I have enumerated place this within low band 2 of R v Taueki. That is five to 10 years’ imprisonment. Band 2 of R v Taueki says it is appropriate for grievous bodily harm offending feature in two or three of the aggravating features that that decision outlined. This was a street attack.

You set upon a victim. Although there was only you and not a group, there was the use of weapons and not only did you cause very serious injuries but you also punched him to the head. Accordingly, six years’ imprisonment is the starting point that I adopt.

Personal aggravating features

[13] Unfortunately, you have a large number of relevant convictions of serious violence. They include robbery by assault, assaulting with a person with a stabbing cutting instrument, aggravated burglary with a weapon, threatening to kill, assault with intent to injure, threatening to kill, common assault and so the list goes on. I agree with the Crown this is an appropriate case for an uplift. The uplift will be six months.

Personal mitigating features

[14] You are entitled to a discount and though your guilty plea did not come very early, Judge Dawson was prepared to give you a 20 percent credit for that guilty plea and the Crown does not appear to demur from that position today. I will, therefore, offer that to you.

[15] There has been some discussion, in sentencing submissions in any event, as to whether or not the Court should impose an uplift for your previous convictions, given that you are now subject to a second strike warning, which has already been given, and, therefore, must serve the full sentence imposed upon you without parole. There are a number of decisions relevant to this, but Moore J’s decision of Palalagi v Police2 I consider to be binding. That indicates that the former two judicial approaches dealing with the relationship between s 86C Sentencing Act 2002 and determining sentencing length are inappropriate and that the three strikes regime is not relevant in determining sentence length but it does, however, justify giving a discount at the totality stage.

[16] He said, under R v Wereta3, one of the previous judgments on the matter, “The three strikes regime is relevant in determining sentence length to the extent that where

2 Palalagi v Police [2015] NZHC 1832

3 R v Wereta [2014] NZHC 2555

an offender appears for a stage 2 or even stage 3 offence there is no uplift for previous convictions for fear of double counting,” but Moore J held that parole eligibility is a factor which Judges should not take into account in determining sentence length. It is clear, he said, that separating the judicial function of sentencing from the statutory consequences of the three strikes legislation was Parliament’s intent and that, therefore, previous convictions must be taken into account in the ordinary way.

Minimum period of imprisonment

[17] As this is a second strike offence, you must serve the full term of the sentence that I will impose which is one of six and a half years less a 20 percent discount for the guilty plea without parole.

[18] Under s 86C(6) I must specify with reasons the non-parole period that I would have imposed if you had not been required to serve the sentence without parole. Section 86 Sentencing Act provides the imposition of a minimum period of imprisonment where sentences of longer than two years are imposed. A minimum period of imprisonment imposed must not exceed the lesser of the two thirds of the full term of the sentence or 10 years.

[19] In R v Taueki the Court of Appeal stated that in cases of serious violence, which this was, where denunciation and deterrence are both important sentencing values, as they are here, and where protection of the community from the offender, which is necessary here, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.

[20] As the Crown posed in its sentencing submissions, the question for the Court is whether serving one third of the nominal sentence is insufficient for the purposes of the Act specified in s 86. Both the principles in s 8 and the aggravating and mitigating factors in s 9 are applicable to the extent that they are relevant to one or more of the four purposes.

[21] When considering the length of the minimum term, I must take into account all of the relevant circumstances of the offender as well as the offending. In

R v Taueki, the Court noted that whilst it is wrong to simply impose a minimum period of two-thirds of the final sentence without reviewing the circumstances of the offence and the offender, there is no presumption against doing so in appropriate cases and no reason for inhibition about doing so where as in the present context offending involves the intentional application of serious injury.

[22] In your case, this was a random attack with a weapon in public against a complete stranger. You have an extensive history of violent offending. I concur with the Crown that this offending and your individual circumstances, to which I will refer again in a moment, are such that a parole period of one third of the final sentence, even were I able to impose it or were that to be the natural consequences of the orders that I make, would be insufficient to meet the purposes of deterring you from committing further violent offending and protecting the community from you. The Crown submits the minimum period of imprisonment of 60 percent of the sentence would have been appropriate in this case. I agree.

Your personal circumstances

[23] Whilst I have seen a letter that you have written indicating your remorse, unfortunately it is little, too little and too late because of the damage that you have done consistently over many years by attacking others in a violent fashion. I have seen the report from Dr Ian Goodwin, specialist psychiatrist, which was prepared and has been proffered to the Court in order to assist the Court with sentencing. He finds that you are not suffering from mental impairment as per the Criminal Procedure (Mentally Impaired Persons) Act 2003, that you do not suffer from a primary mental illness other than methamphetamine abuse and likely dependence, you do not fulfil the criteria for mental disorder as outlined within ss 2 and 4 Mental Health (Compulsory Assessment and Treatment) Act 1992, you do display some mild cognitive deficits which are likely in keeping with your history of multiple mild traumatic brain injuries but these are not severe although you might benefit from a cognitive rehabilitative approach in the future.

[24] All in all, it would appear to me from what I read that your predilection for violence as disclosed by your conviction list and history has been largely brought about by a methamphetamine addiction.

[25] The last pre-sentence report which is relevant given that you have been in custody since then is dated 28 April. You are assessed as being of a high likelihood of re-offending as well as posing a high risk of harm to others, are said to be because of not only your extensive and serious prior offending but your inability to recognise the causes of your violent tendencies despite targeted programme work with you. The report notes that there has been an escalation in the violent nature of your offending recently.

[26] I note, however, that the probation officer does indicate that you appeared to show genuine remorse for your actions and that you were aware of the severity of your actions and their effects. The combination of methamphetamine and possibly other drug addiction and abuse and mild repeated head injuries is a lethal one, and it was nearly lethal for your victim on this occasion. I would like to think that there is some resource in the community that can assist to rehabilitate you.

[27] That, I am afraid, will have to wait until you have served without parole or early parole the sentence that I impose which is one of five years and two months. That is a six year starting point (or 72 months) with an uplift of six months, being 78 months, less 20 percent for your guilty plea which comes down to an end sentence, as I say, of five years and two months.

M-E Sharp

District Court Judge