Mathews v Police [2012] NZHC 1261 (6 June 2012)

Last Updated: 22 June 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-448-000026 [2012] NZHC 1261

EUGENE MATHEWS

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 6 June 2012

Counsel: R Bowden for appellant

M Jarman-Taylor for Respondent

Judgment: 6 June 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

_-

EUGENE MATHEWS V NEW ZEALAND POLICE HC WHA CRI-2012-448-000026 [6 June 2012]

[1] Mr Mathews pleaded guilty in the District Court to charges of burglary, being in possession of a jemmy, breaching his parole in two respects, breaching District Court bail on two separate occasions, breaching a protection order by physical abuse and stealing petrol.

[2] On 24 April 2012 Judge Maude sentenced Mr Mathews to an effective term of 29 months imprisonment.[1] He now appeals to this Court against the sentence that the Judge imposed on the ground that it was manifestly excessive.

Facts

[3] In order to understand the issues that the appeal raises, it is necessary to have some regard to the facts of the offending.

[4] The burglary charge arose as a result of an incident on the morning of Sunday, 6 March 2011. On that date Mr Mathews was the passenger in a motor vehicle that stopped outside a cycle store in Whangarei. He approached the front doors of the store and looked into the store through the window. He then went to a side door, where he used a jemmy to pry open a locked aluminium door. He then entered the store, thereby setting off a motion sensor alarm. He walked over to the counter, and used the jemmy to pry open the till. He discovered that this was empty and then rummaged through doors, shelves, cupboards and bags in the vicinity of the counter. He did so notwithstanding the fact that the store alarm was activated and in motion. He then left the store by the side door, but was arrested a short time later. The jemmy was still in his possession when he was searched following his arrest.

[5] Mr Mathews entered no plea to the charge of burglary, and was remanded to appear in the District Court at Whangarei on 28 March 2011.

[6] Two days prior to his scheduled appearance, namely on 26 March 2011, he became involved in an incident that led to the charge of breaching the terms of a protection order. On the morning of 26 March 2011, Mr Mathews went to the house

_{of his former partner. He then became involved in an argument with her about}

access issues. He refused to allow his former partner to leave the address and then picked her up and carried her to the back door. Fortunately, her sister was present and pulled Mr Mathews away from his former partner. He then left the house and his former partner and her sister then called the police.

[7] It appears that this incident prompted Mr Mathews to elect not to honour the terms of his bail or his parole conditions. He effectively went underground until

6 December 2011. On this date he filled his motor vehicle up with petrol at a service station at Kamo, and then drove off without paying for it. I infer he was apprehended very shortly after leaving the service station, because the charge relating to the theft of the petrol was first called on 7 December 2011.

The structure of the sentence

[8] The Judge recorded, rightly, that the lead or most serious charge was the charge of burglary. He noted that Mr Mathews had no fewer than 11 previous convictions for burglary. He also had four prior convictions on charges of assaulting females. The Judge considered that the assault charges were of a similar type to the charge of breaching a protection order by way of physical abuse. The Judge noted that on the previous occasion when he had appeared on a burglary charge he was sentenced to two years imprisonment. On the previous occasion that he had appeared on a charge of assaulting a female, he had been sentenced to six months imprisonment.

[9] The Judge took the view that he was required to adopt a starting point of more than two years imprisonment on the burglary charge. He estimated that the starting point on the previous burglary charge would have been in the range of 30 to

32 months imprisonment. Bearing that in mind, he selected a starting point of three years imprisonment on the burglary charge, but did so on the basis that this starting point also encompassed the culpability inherent in all of the other charges to which Mr Mathews had pleaded guilty.

[10] The Judge said that Mr Mathews could not expect the benefit of a full discount in circumstances when he had entered a guilty plea to the burglary charge

ten months after first being charged. He allowed a discount of ten per cent, or four months, for the guilty plea. He then allowed a further three month discount to reflect the remorse Mr Mathews had expressed, and also a plea by his partner that he be permitted to remain in the community to attend to his familial obligations. This produced the end sentence of 29 months imprisonment.

The argument on appeal

[11] Counsel for Mr Mathews points out, and counsel for the Crown acknowledges, that the Judge did not approach the sentencing exercise in accordance with the recognised methodology set out in R v Taueki[2] as approved in relation to

burglary charges in R v Clifford.[3]

[12] Counsel for Mr Mathews submits that an appropriate starting point in relation to the burglary charge was a sentence of no more than 12 months imprisonment. He accepts that an uplift needed to be applied to reflect Mr Mathews’ previous offending, and contends that this should be approximately six months. He also accepts that a further uplift needs to be applied to reflect Mr Mathews’ culpability in relation to the remaining charges, and suggests that this, too, should be approximately six months. As a result, he contends that an end starting point of two years imprisonment was appropriate on all charges.

[13] Counsel also submits that Mr Mathews should have received a much greater discount for his guilty pleas and the other factors for which the Judge gave him credit. He submits that the end sentence should have been no more than 18 months imprisonment. He contends that, having regard in particular to the rehabilitative efforts Mr Mathews has made, the Judge ought to have given serious consideration

_{to a sentence of home detention.}

[14] The real issue is not whether the Judge applied the appropriate methodology in arriving at the end sentence. Rather, it is whether the end sentence that the Judge selected can properly be said to be manifestly excessive.

Starting point

[15] I agree with counsel for Mr Mathews that the starting point in relation to the burglary charge should not have been chosen having regard solely to the sentence imposed when Mr Mathews was last before the Court on a burglary charge. The circumstances of the present offending needed to be taken into account in order to select an appropriate starting point.

[16] Counsel for Mr Mathews submitted that the case has some similarities with R

v Columbus,[4] in which the Court of Appeal said that a starting point of no more than

12 years imprisonment was appropriate on a charge of burglary. In that case, however, the Court noted that the burglary was opportunistic or spontaneous, and that the property that was stolen was later recovered.

[17] I do not consider that the present offending can be said to be opportunistic or spontaneous. Mr Mathews was in a vehicle that stopped deliberately outside the cycle shop. He then approached the shop with a jemmy and, when satisfied with what he saw inside the shop, used the jemmy to gain entry to the premises. In my view that shows a degree of premeditation that was absent in Columbus. The only reason that Mr Mathews did not take any property from the shop was because he was unable to find anything to steal. For these reasons, I am satisfied that his offending was significantly more serious than that in Columbus. I consider that a starting point of 18 months imprisonment was appropriate on that charge.

[18] A discrete uplift needs to be applied in respect of Mr Mathews’ previous convictions. As the Court of Appeal noted in Columbus, it is important to ensure that any uplift for previous convictions must relate directly to the offending in point. In this regard the Court said:[5]

A further increase is appropriate to recognise Mr Columbus’ previous dishonesty offences. He was 35 years of age when he committed these offences. Ms Edwards for the Crown advises that he had 89 previous convictions, for which 13 were for burglary and another 34 for property related offences. He has been sentenced to imprisonment on 15 occasions since 1989, most recently for two years for burglary and related offences in January 2003.

The nature and extent of Mr Columbus’ dishonesty history elates directly to his burglary. Previous sentences of imprisonment have not served to deter Mr Columbus. The community requires continued protection from him. However, it is relevant that Mr Columbus’ offending was of a spontaneous nature and his habitual or recidivist tendencies do not suggest a professional disposition to burglary, although they still reflect a significant degree of culpability. His history shows a risk of re-offending at the same reasonably minor end of the scale that characterised this crime. That is the risk of prevention to which past offending is relevant.

In our judgment Mr Columbus’ previous history justified a further increase of one year against the adjusted starting point of one-and-a-half years imprisonment. The appropriate end starting point for his sentence of burglary was thus two-and-a-half years imprisonment. It follows that the starting point adopted by the Judge of three-and-a-half years was excessive.

[19] The present case has some similarities with Columbus in this respect because Mr Mathews has 11 previous convictions for burglary whilst the offender in Columbus had 13. Importantly, however, the offender in Columbus had a total of 89 previous convictions, of which 34 were for property-related offences other than burglary. Mr Mathews has more than 120 previous convictions, many of which are for offences involving dishonesty other than burglary. Importantly, too, Mr Mathews received a sentence of six years imprisonment in April 1998 on charges of kidnapping and aggravated robbery. A sentence of that length obviously means that the offending was very serious.

[20] The most important aspect of Mr Mathews’ previous criminal history is the fact that he has 11 previous convictions for burglary. The fact that he was apprehended again on a charge of burglary in March 2011 means that previous sentences of imprisonment have failed to deter him from committing crimes of this type. This makes his current offending more serious. As in Columbus, I consider that an appropriate uplift to reflect Mr Mathews’ previous relevant offending is one of 12 months.

Uplift to reflect remaining charges

[21] A further discrete uplift must also be applied to reflect the remaining offending. The breach of the protection order had serious aspects to it, particularly given the fact that Mr Mathews has previous convictions for assaulting females. He also blatantly breached his parole and bail conditions following the incident that gave rise to the charge of breaching a protection order. Finally, his decision on

6 December 2011 to fill his vehicle up with petrol to the value of $101, and then to drive off without paying for it, demonstrates a blatant sense of dishonesty. I consider that an uplift of six months imprisonment is required to reflect the remaining offending.

[22] This means that, albeit by a completely different route, I arrive at the same end starting point as the Judge, namely a sentence of three years imprisonment.

Level of discount

[23] Like the Judge, I consider a discount was appropriate to reflect Mr Mathews’ expressed remorse and the rehabilitative efforts that he appears to have made during the period in which he was in breach of his bail and parole obligations. I have received an affidavit from his partner in which she outlines the steps he has taken in this regard. She also deposes that serious issues have now arisen in relation to Mr Mathews’ son who has been residing with his partner since his incarceration. The effect of Mr Mathews’ imprisonment is obviously having a serious effect on his son.

[24] The Judge was prepared to make an allowance of three months to reflect these factors. I consider that a slightly increased adjustment of five months imprisonment would be appropriate.

[25] The next issue is whether the Judge applied an appropriate discount to reflect Mr Mathews’ guilty pleas. I consider that a discount of greater than ten per cent was warranted. Mr Mathews indicated that he would plead guilty to all charges immediately after being arrested on or about 6 December 2011. He therefore pleaded guilty to all charges other than the burglary charge at the very earliest opportunity. He also entered a guilty plea to the burglary charge as soon as he was apprehended in December 2011. Prior to that he had not entered any plea to that charge. The position is therefore different to that of an offender who initially pleads not guilty to a charge, and then enters a guilty plea on the eve of trial. A discount of ten per cent would ordinarily be appropriate in the latter circumstances. I consider that an overall discount of six months, or 20 per cent, was warranted to reflect Mr Mathews’ guilty pleas.

End sentence: home detention

[26] This leaves an end sentence of two years one month imprisonment. As a result, the issue of home detention does not arise. For the record, however, I observe that, even if a sentence of home detention had been available, it would not have been appropriate in this case. As a recidivist burglar who has received numerous sentences of imprisonment on burglary charges, Mr Mathews must now realise that imprisonment is the probable outcome on any occasion when he appears for sentence on a charge of burglary.

[27] His rehabilitative efforts are also marred to a significant extent by the fact that he was prepared to steal petrol on 6 December 2011. His actions on that date demonstrate that his commitment to rehabilitation may not have been quite as significant as his partner contends.

Result

[28] The appeal against sentence is allowed. The sentence of two years five months imprisonment is quashed. In its place I impose a sentence of two years one month imprisonment on the burglary charge. The sentences on the remaining

_{charges will remain as imposed in the District Court.}

Lang J

Solicitors:

Crown Solicitor, Whangarei

Counsel:

R Bowden, Whangarei

---

[1] Police v Mathews DC Whangarei CRI-2011-090-010091, 24 April 2012.

[2] _{R v Taueki [2005] 3 NZLR 372.}

[3] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

[4] R v Columbus [2008] NZCA 192.

[5] Ibid, at [18]-[20].