Matthews v Police [2014] NZHC 929 (6 May 2014)

Last Updated: 14 July 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-009 [2014] NZHC 929

BETWEEN	DAYNE KAHU MATTHEWS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 May 2014
Appearances:	S Claver for Appellant M-J Thomas for Respondent
Judgment:	6 May 2014

_{RESERVED JUDGMENT OF MANDER J}

[1] This is an appeal against a sentence of imprisonment for a period of 2 years and 1 month imposed in respect of charges of injuring with intent to injure, burglary and intentionally damaging a dwelling house. Those charges carry maximum sentences of imprisonment of 5 years, 10 years and 7 years respectively.

Background

[2] The appellant was part of a group who invaded the victim’s home. Inside the house the appellant and his co-offenders proceeded to assault the occupants of the address and caused extensive damage to the dwelling’s interior. The appellant repeatedly punched an occupant of the address, smashed windows and furniture with an axe and a spade and used broken furniture as a weapon on other occupants. After stealing beer, the appellant was involved in throwing objects at the house, smashing windows and causing injury to an occupant. Injuries were sustained by three members of the address and over $7,000 in damage caused to the house. The attack on the house and its occupants was premeditated and involved serious violence and

_{vandalism in which the appellant was an active participant.}

MATTHEWS v NEW ZEALAND POLICE [2014] NZHC 929 [6 May 2014]

The sentencing

[3] The appellant appeared for sentence together with two co-offenders before Judge Turner. Each had pleaded guilty to the same charges. One of the co- offenders, Mr Leishman, had sought a prior sentencing indication which resulted in an intimated sentence of home detention from a starting point of 2½ years imprisonment, adjusted for personal aggravating and mitigating circumstances and credit for an early guilty plea. At the sentencing hearing a 24 month term of imprisonment was commuted to one of 10 months home detention and 200 hours community service.

[4] The 2½ year starting point was also applied in respect of the other offenders including the appellant on the basis that there was no reason to distinguish between any of them in terms of their culpability in the joint enterprise. No complaint is made on appeal to that approach by the learned sentencing Judge.

[5] A 19 year old female co-offender, Ms Pou, was also sentenced to home detention for a period of 10 months and ordered to serve 200 hours community work. That co-offender’s eligibility for such a sentence resulted from a sentence calculation of 22 months imprisonment. Judge Turner commuted that sentence of imprisonment to home detention because of the offender’s age, her relatively limited history comprising two recent assault convictions, the fact the offender was in employment and her childcare responsibilities. It was considered that home detention would allow that offender “therapeutic intervention” to deal with her personal issues.

[6] In respect of the appellant, Mr Matthews, the 2½ year starting point was applied. An uplift of 6 months was made for a personal aggravating feature arising from his previous convictions for robbery and aggravated robbery in 2010 and a previous burglary as a youth offender. Maximum credit was afforded for the appellant’s guilty pleas. His remorse, willingness to address the issues at the root of his offending, and his offer to pay his share of reparation were also acknowledged. That resulted in an end sentence of 2 years and 1 month imprisonment. The question of home detention did not therefore arise. Judge Turner however observed that, even had the appellant been within the short term sentence range, he would not have

considered home detention appropriate. The sentencing Judge observed that the appellant had previously escaped from custody, that in 2013 he had breached conditions following his release from prison and that his offending history counted against him in terms of a home detention sentence.

Appellant’s submission

[7] The appeal is brought on the basis of two submissions. Firstly, Mr Claver on behalf of the appellant submits there was illegitimate disparity between the sentence imposed on the appellant and that received by his co-offenders. Secondly, it is submitted that Judge Turner placed too much weight on the appellant’s Youth Court burglary conviction and effectively “double counted” the appellant’s robbery convictions in 2010. The appellant submits that the uplift of 6 months for these previous convictions was excessive. Reliance is placed on the authority of Kohere v

Police¹ and that the appellant’s Youth Court record should not have been taken into

account by the District Court.

[8] The appellant complains that Judge Turner misconstrued the seriousness of the burglary committed by the appellant for which he received the maximum sentence available in the Youth Court jurisdiction. The appellant points out he was being sentenced for four other serious matters at the same time and the sentence imposed encompassed all matters not just the burglary. Further, it is submitted that the appellant’s 2010 convictions arose out of the one continuing event which occurred on one occasion, rather than discrete instances of separate serious offending.

Respondent’s submissions

[9] Ms Thomas for the Crown submitted the District Court Judge’s approach to the appellant’s sentence was appropriate having regard to the personal circumstances of the appellant. No impermissible disparity between the offenders’ sentences arises in her submission. The appellant’s previous involvement in serious violence, marked by the relatively recent robbery conviction, sets him apart from his co-offenders.

_{While acknowledging that the uplift of 6 months for the previous offending was}

¹ Kohere v Police [1994] 11 CRNZ 442.

stern, it was submitted by the Crown that it was not outside the range of uplift available to the District Court.

The uplift for previous offending

[10] The appellant’s prima facie ineligibility for home detention resulted from the starting point of 2½ years imprisonment, being increased by 6 months because of his previous convictions.

[11] The appellant has previous convictions for aggravated robbery involving a stabbing or cutting weapon and robbery. The offence date is the same for both convictions and they obviously relate to the same episode of offending. In respect of those charges the appellant received an effective sentence of 2 years and 5 months imprisonment. The appellant also has a previous conviction for breaching release conditions in February 2013, for which he was convicted and discharged.

[12] In the Youth Court, the appellant’s record includes escaping from lawful custody, theft, unlawful taking, possession of cannabis and burglary. Those offences were committed over a two month period in 2009, for which he was sentenced in the Invercargill Youth Court on 28 January 2010 to 3 months residential detention.

[13] In Kohere v Police, Anderson J observed that matters dealt with in the Youth Court do not constitute convictions for offences and, to that extent, the Youth Court is not a criminal Court of record. Matters which are dealt with in the Youth Court however cannot be ignored. Proceedings in the Youth Court are part of the behavioural history of a person who subsequently appears for sentence in an adult Court and have relevance in determining an appropriate sentence when a person subsequently appears before a Court of criminal record.

[14] In Kohere, Anderson J examined s 21A of the Criminal Justice Act 1985 which empowered a Court to suspend a sentence of imprisonment. Like the present sentence of home detention, a sentencing Court was required to come to a view disjunctively from any power to suspend that a particular term of imprisonment was the appropriate sentence. In that case, Anderson J accepted an argument that a sentence of 6 months imprisonment for a person without previous convictions for

burglary, albeit with a behavioural history as a youth involving burglary was in all the circumstances manifestly excessive. A distinction was made between an offender with a background of burglary as a youth and an offender with convictions for such offending.. In that case, the appeal Court considered that but for the ability to suspend it was unlikely a sentence of imprisonment would have been imposed in the absence of previous convictions for burglary.

[15] While the issue in Kohere was different from the present case, the judgment serves to illustrate the distinction between previous convictions in an offender’s criminal history as an adult and offending committed while a youth. The burglary committed by the appellant as a youth for which he was sentenced together with other offending does not appear particularly relevant to this present offending as an adult. It cannot be said that there is any pattern in the burglary offending of which the present offending is typical or that has continued through from his behaviour as a youth.

[16] The relevance of previous convictions in uplifting an offender’s sentence was recognised by the Court of Appeal in Beckham v R.² The Court however cautioned sentencing Courts about increasing sentences merely by reason of the presence of previous convictions. Convictions which indicate a tendency to commit a particular type of offence for which an offender is for sentence may give rise to issues of deterrence which will justify an increased sentence.

[17] The learned District Court Judge was undoubtedly correct to take into account the appellant’s previous convictions for aggravated robbery and robbery. Those were serious matters involving violence towards others comparable with the present offending. The uplift of 6 months to mark that previous offending however represents a 20% increase on the 2½ year starting point and included reference to the Youth Court burglary which was considered serious by reference to the maximum sentence imposed but without apparent regard to the other discrete offences for

_{which the appellant was before the Youth Court at that time.}

² Beckham v R [2012] NZCA 290.

[18] The only relevant previous conviction(s) in respect of this appellant was the robbery matter of June 2010. This was serious offending akin to the appellant’s present criminal conduct. The question however arises as to whether that previous conduct warranted such a sizeable uplift. In my view, the increase of 6 months was excessive, marking as it did only one prior episode of relevant serious offending. A more appropriate uplift would have been one of 3 months imprisonment.

The appropriateness of home detention and parity

[19] It is apparent from Judge Turner’s sentencing remarks that he afforded the prisoner a 2 month deduction for other mitigating factors personal to him. As a result of the adjustment required in respect of the uplift for the appellant’s previous convictions, a final sentence of 22 months is arrived at after affording the appellant the maximum 25% credit for his guilty pleas as was considered appropriate by the sentencing Judge. The appellant thereby becomes eligible for home detention as the adjusted sentence comes within the short term sentence range which may allow a sentencing Court to commute a sentence of imprisonment to one of home detention.

[20] Mindful of the type of sentences imposed on the co-offenders, Judge Turner appreciated the arbitrary nature of the method of sentence calculation in terms of the appellant’s eligibility for home detention and in his sentencing remarks went on to consider the question of home detention should the appellant have been eligible. Judge Turner concluded that even if the appellant had been eligible for a sentence of home detention, he would not have granted such a sentence in the circumstances of the appellant’s case. The sentencing Judge makes reference to the appellant having previously escaped from custody, the breach of his release conditions in 2013 following his sentence of imprisonment, and the appellant’s history which Judge Turner concluded counted against the imposition of a term of home detention in substitution of the otherwise appropriate sentence of imprisonment.

[21] I accept the appellant’s submission that the appellant’s escape from lawful custody as a 16 year old has little relevance to the appellant’s eligibility for home detention as an adult offender. That said however, it is to be noted that he has been convicted for breach of release conditions and, while on bail in respect of the present

offending was breached on three separate occasions. There are therefore documented instances of the appellant’s failure to abide by Court imposed conditions or orders.

[22] Essentially, on appeal the issue devolves to whether the apparent disparity between the approach to sentence taken in respect of the appellant’s co-offenders and that in respect of himself was justifiable by reference to the appellant’s 2010 convictions for robbery and aggravated robbery.

[23] The principle of parity as between co-offenders is well established. It is important to the administration of justice generally that in the absence of justification there should be no marked difference in the sentences imposed on co-offenders. Confidence in the administration of justice is best preserved if it appears to be

administered even-handedly.³

[24] In R v K,⁴ the Court of Appeal observed:

Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[25] The test as to whether an appellate Court should interfere with a sentence that was otherwise appropriate on the grounds of disparity is objective:⁵

It is not merely whether the offender thinks that he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[26] An unjustified disparity does not arise where one offender has been sentenced to imprisonment and a co-offender to home detention so long as the difference in the

_{sentences imposed is justified.}⁶

³ _{R v Lawson [1982] 2 NZLR 219 at 223.}

⁴ _{R v K [2003] 20 CRNZ 62 at [20].}

⁵ Above n 3.

[27] In sentencing the appellant’s co-offenders to terms of home detention, Judge Turner must have concluded that such a sentence represented an adequate response to the seriousness of the offending for which the offenders were equally culpable. It is apparent that the circumstances of the offending did not of itself prevent the imposition of such a sentence. That evaluation must equally apply in respect of the appellant. Justification for differentiating between the co-offenders in terms of the type of sentence imposed must therefore be founded on their distinguishing personal circumstances.

[28] It is apparent that Judge Turner took the view that in light of the appellant’s

2 year and 5 month prison sentence for aggravated robbery in June 2010 that a sentence of home detention would have been an inadequate response to the serious offending for which the appellant was now before the Court. Mr Claver in support of the appeal submits that the appellant’s co-offenders both have recent convictions for assault and therefore a propensity for violence. One of the co-offenders also, like the present appellant, has a history of breaching his bail and therefore a lack of compliance with Court imposed orders.

[29] An appeal against a refusal to grant home detention does not provide an appellate Court with an opportunity to revisit or review the merits of the sentence.⁷

The question is whether the sentencing Judge has erred in exercising the sentencing discretion by applying an incorrect principle, giving insufficient or excessive weight to a particular factor, or by being plainly wrong. I am also mindful of the observations of French J in Ebdell v Police,⁸ that there is no prevailing presumption in favour of home detention and that in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment. Weight needs to be accorded to the views of the

sentencing Judge from the jurisdiction in which the crimes of the type in issue are frequently tried. The question that falls for determination on this appeal is whether

_{notwithstanding considerations of parity the sentencing Judge was justified for}

⁶ _{See R v Hessell [2009] NZCA 450; and R v Bishop [2009] NZCA 265.}

⁷ _{James v R [2010] NZCA 206.}

⁸ Ebdell v Police HC Christchurch CRI-2009-409-4831, 30 July 2009.

reasons of personal and general deterrence in excluding home detention as a sentencing option for this appellant.

[30] I have concluded that Judge Turner was entitled in the exercise of his sentencing discretion to take the view that the appellant’s relatively recent history of serious violent offending marked by the 2010 aggravated robbery placed his position apart from that of his fellow co-offenders. The appellant’s previous episode of robbery involving the use of a weapon, for which he received a significant sentence of imprisonment, is of a different order to the previous assaults committed by his co- offenders. It follows that in order that appropriate recognition be given to considerations of personal and general deterrence a different approach was required in respect of this appellant, and that a reasonably minded independent observer aware of the appellant’s background of serious offending would appreciate the justification for the different sentences.

[31] The sentencing Judge did not err in declining home detention to the appellant. The appeal however is partially successful. The term of 2 years and 1 month imprisonment is set aside and substituted with a sentence of imprisonment of 22 months.

Solicitors:

Simon Claver Barrister, Dunedin

Crown Solicitors, Invercargill