Mataia v Police

[2016] NZHC 2737

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2016-404-298

[2016] NZHC 2737

BETWEEN

ETISONE MATAIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 November 2016

Appearances:

P Eastwood for Appellant

A McConachy for Respondent

Judgment:

14 November 2016

JUDGMENT OF TOOGOOD J

Mataia v NZ Police [2016] NZHC 2737 [14 November 2016]

Introduction

[1]    Etisone Mataia appeals against a sentence of two years’ imprisonment imposed by Judge J Jelas on four charges of assault on a child (two of which were representative)1 and three representative charges of assault with a weapon.2 The circumstances of the offending involved repeated acts of brutality towards Mr Mataia's children in a disciplinary setting.

[2]    Mr Mataia appeals his sentence on the basis that the sentencing Judge was wrong to sentence him to imprisonment before considering a report on home detention. He argues that the Judge was wrong to depart from an indication given at a sentence indication that “Home Detention would only be a viable option if it is at an address other than where the children are living”. He argues that his rehabilitative efforts were not properly taken into account in the provision of advice to the Court, and says that he now has a suitable home detention address.

[3]    For the purposes of considering the appeal, I am prepared to accept that suitable arrangements could be made for Mr Mataia to serve a sentence of home detention. The only question, however, is whether Judge Jelas erred in determining that imprisonment was the only appropriate response to this offending. Mr Eastwood submits that the Judge should at least have permitted a further opportunity for the circumstances of home detention to be considered, and that a favourable report may have influenced the Judge to come to a different view. He invites me to remit the matter to the District Court or to sentence Mr Mataia on the basis that he be granted leave to apply for home detention.

Background

[4]    The offending involved numerous assaults carried out by Mr Mataia against four of his children, aged between 3 and 11, largely at the family address in Auckland, between January 2014 and 26 March 2015. The details of each charge and the facts do not need to be given. It is sufficient to say that on various occasions Mr Mataia

1      Crimes Act 1961, s 194(a).

2      Section 202C(1)(a); Police v Mataia [2016] NZDC 17341.

smacked one or more of his children across the face, the back and legs with an open palm, on occasions resulting in injuries which bled. He also held a child face down into blankets and smacked him with an open palm, causing a bleeding nose; he punched one of the children; he used a broom handle to smack the children on the hand or other parts of the body; he used a wooden spoon, including to hit a child across the face, causing bruising and swelling; and he stomped on a child's legs (albeit wearing jandals). On numerous occasions, Mr Mataia used the buckle end of a belt to strike his children, causing them. On one occasion he threw a folded chair at a child, hitting the child on the legs. And on another occasion, with one of the children, he placed his hands around the child’s neck, pinned him to the bed and held the child there for approximately 30 seconds.

[5]    When spoken to by the Police, Mr Mataia stated that he frequently disciplined his children by smacking them with his hands. He said he often used a "salu" or a wooden broom to "whack his children when they're misbehaving". He said he used his belt to threaten his children but denied ever using it to assault them, and denied ever throwing a chair at the child who alleged that.

Sentence indication

[6]    On 11 March 2016 in the District Court at Waitakere, Judge AJ Fitzgerald gave a sentence indication. The Judge adopted a starting point of three years' imprisonment for the totality of the offending.3 The Judge then recognised that Mr Mataia had taken rehabilitative steps and allowed a 10 per cent discount. He also indicated that a guilty plea discount in the range of 20 to 25 per cent would be appropriate and determined that, on that approach, the end sentence would be somewhere in the range of 24 to 26 months' imprisonment. The Judge then said:

[9]    It may well be possible with more material than I have at present that an end sentence could be brought down further to be under two years and then bring into play the electronically-monitored options. However, as I say, on the information available today, the best I can indicate is that the end range would be around 24-26 months. Home detention I think would only be a viable option if it was an address other than where the children are living.

3      Police v Mataia DC Waitakere CRI-2015-090-003342, 11 March 2016.

[7]    I observe in passing that the reference to a range of 24 to 26 months would necessarily have meant that, if anything over 24 months was adopted by a sentencing court, home detention was not an option. The sentence indication was accepted and Mr Mataia pleaded guilty.

The sentence

[8]    On 7 September 2016, Mr Mataia was before Judge Jelas for sentence. In her decision the Judge noted that sentencing was initially scheduled for 9 June 2016, but the report from Corrections prepared at that time recorded that an electronically monitored sentence had not been canvassed. Mr Mataia, at that stage, appeared to be reluctant to agree to an electronically monitored sentence; but, in any event, sentencing was adjourned to enable the possibility of an alternate sentencing address to be considered. By the time the matter came back before Judge Jelas in September, no such address was identified.

[9]    Mr Eastwood has presented an unsworn affidavit – I take it simply to be a statement by Mr Mataia – that he made efforts to meet with Corrections officials to discuss the suitability of an address but they had failed to turn up to meetings. As I say, for the purposes of considering this appeal I am prepared to accept that suitable home detention arrangements could have been made.

[10]   Judge Jelas, however, decided that there was no point in adjourning the matter for further consideration. She adopted the starting point and discounts given by Judge Fitzgerald. She noted an earlier provision of advice to the Court, which reported that Mr Mataia said he knew the use of violence or discipline was wrong but said that he did not use his full strength. He justified smacking and disciplining his children, referring to his son as, "a naughty boy who would not listen to him." He said that he was disciplining his children in the way he had been disciplined in his upbringing. The report writer had the view that Mr Mataia was downplaying the nature of the offending.

[11]   Judge Jelas noted prior convictions for assaults against adults, resulting in supervision sentences designed to deal with underlying causes. But in the end the Judge said:

[18] In my view, there is a great need to deter and denounce this offending and to hold you accountable. While I need to bear in mind the need for consistency and to impose the least restrictive outcome, in my view a sentence other than imprisonment would not meet the relevant purposes of sentencing in this case.

[12]   I infer from that that the Judge had determined, on the basis of the nature of the offending that, even if a sentence of 24 months' imprisonment, such as was imposed in this case, justified consideration of home detention, a sentence of home detention would not be an appropriate response. There was, therefore, no point in the Judge adjourning the matter for further enquiries.

Principles

[13]   An appeal against sentence must be allowed if there is an error in the sentence imposed such that a different sentence should be imposed.4 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.5 Mr Eastwood quite properly does not submit that a sentence of two years' imprisonment would be manifestly excessive for this offending; he simply argues that it was unfair for Mr Mataia to have some prospect of home detention and for that not to be properly explored by the Court at the time of sentencing.

[14]   However, the issue in this case is whether or not Judge Jelas was wrong to conclude that a custodial sentence was the only appropriate response to the offending, and whether, if that was an error, the Court should substitute some other form of sentence. 6

4      Criminal Procedure Act 2011, s 250(2).

5      Ripia v R [2011] NZCA 101 at [15].

6      Manikpersadh v R [2011] NZCA 452.

Discussion

[15]   In his written submissions, Mr Eastwood suggested that there was an implicit acceptance by Judge Fitzgerald that home detention would in certain circumstances be a viable option. I do not read what the Judge said in that way. The Judge was indicating that, if home detention was to be considered, it could only be viable on the basis that it was not at an address where the children were present.

[16]   The Court of Appeal has held that even if a Judge's sentence indication is ambiguous, the real issue is whether the indication has generated an expectation and that for some reason the expectation is not met, in which event the defendant should be given an opportunity to vacate their guilty plea.7

[17]   I do not think there was any ambiguity at all in what Judge Fitzgerald said, and I do not accept that Mr Mataia was misled into believing that he had a reasonable expectation of home detention. Of course, he took steps to maximise the possibility that that sentence might be imposed but the real issue is whether or not Judge Jelas erred in deciding that imprisonment was the only appropriate sentence.

[18]   Home detention is regarded by the courts as a deterrent sentence8 and it is an alternative to imprisonment. It carries with it the obvious benefits of rehabilitation or rehabilitative prospects.9 But society's intolerance of violence against children by people who are meant to protect them and nurture them should generally be met, in my view and in the view of the courts generally, by sentences of imprisonment which are designed to deter the individual offender, to deter others from this type of offending, and to denounce on behalf of society the use of violence of this kind to discipline children.10 This emphasis is reflected in s 9A of the Sentencing Act 2002, which provides that aggravating features for violent offending against children include the defencelessness of the victims, the resulting harm, and the magnitude of the breach of relationship of trust. This indicates, as Judge Jelas no doubt intended should be

7      Taylor v R [2013] NZCA 55 at [23]; Boyce v R [2014] NZCA 295 at [24]-[26].

8      R v Iosefa [2008] NZCA 453 at [41].

9      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].

10     R v Bishop [2008] NZCA 97 at [13]; Tuhua v R [2014] NZCA 558 at [14].

indicated in this case, that tougher sentences are required for violent offending against children.11

[19]   Assaults against children which involve weapons over a significant period of time, with severe blows and multiple instances of cruelty, are likely to be dealt with by terms  of  imprisonment.12  These  assaults  were  serious.  They  occurred  over 14 months and they were carried out on a number of victims using weapons, including a broom handle, a wooden spoon and a belt. There were attacks to the head; blood was drawn on occasions; and one assault involved strangulation. That is a particularly concerning feature of the offending.

[20]   I am satisfied that not only was Judge Jelas entitled to come to the view that imprisonment was the appropriate sentence, she was entirely right in doing so.

Result

[21]   In those circumstances, there is no basis for me to hold that Judge Jelas acted in error. I agree with her decision and dismiss the appeal.

.........................................

Toogood J

11     R  v Pene [2010] NZCA 387 at [13]; R v Hall  [2012] NZCA 518 at [18]; See Rooney v Police

[2014] NZHC 1033.

12 Solomon v Police HC Wanganui CRI-2010-483-063, 3 December 2010 at [22]-[23]. See the cases cited by the Crown: Leota v Police HC Christchurch CRI-2008-409-89, 26 June 2008, R v P (CA429/2008) [2008] NZCA 476; Teilauea v R [2014] NZCA 391. And see SM v Police [2016] NZHC 960.