Mataiti v Police - [2014] NZHC 1675

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-16 [2014] NZHC 1675

BETWEEN
TAMAINE MATANGARO MATAITI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 July 2014 (by audio-visual link)

Counsel:

L G Penney for Appellant
C A Anderson for Respondent

Judgment:

17 July 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 17 July 2014 at 2.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Whangarei
Counsel:
L G Penney, Kerikeri

MATAITI v NEW ZEALAND POLICE [2014] NZHC 1675 [17 July 2014]

Introduction

[1] Mr Mataiti was charged with two breaches of a protection order and one of wilful damage. They arose out of two distinct events, on 10 October 2013 and 20
March 2014 respectively. Pleas of guilty were entered to both charges and

Mr Mataiti was subsequently sentenced in the District Court at Whangarei on 2 May

2014.

[2] Judge McDonald imposed a term of imprisonment of 12 months on each of the two breach offences. Those sentences were to be served concurrently. On the wilful damage charge, Mr Mataiti was convicted and ordered to pay $120 in reparation. A direction was made that standard and special release conditions would
continue for six months after the sentence end date.1

[3] Mr Mataiti appeals against the sentences of imprisonment imposed on the two charges of breaching a protection order, on the grounds that the effective end sentence is manifestly excessive. The other orders are not challenged.

Appellate principles

[4] As the charges arose out of incidents that occurred after 1 July 2013, Mr Mataiti’s right of appeal against the sentence is governed by ss 244(1), 250 and
251 of the Criminal Procedure Act 2011 (the Act):

244 Convicted person's right of appeal against sentence

(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.

...

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

251 Orders, etc, on successful first appeal

(1) This section applies if a first appeal court allows an appeal under this subpart.

(2) The first appeal court must, within the limits allowed by law,—

(a) set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or

(b) vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c) remit the sentence to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1675
Decision Date: 17 July 2014

CaseChat Overview and Summary

Mr Mataiti was charged with breaching a protection order and wilful damage, to which he pleaded guilty. He was sentenced to 12 months' imprisonment on each of the two breach offences, to be served concurrently, and ordered to pay $120 in reparation for the wilful damage. He appeals against the sentences of imprisonment, arguing they are manifestly excessive. The court must determine whether there is an error in the sentence imposed and whether a different sentence should be imposed. The court considered the nature of the offending, which included two breaches of a protection order and wilful damage, and the aggravating factors, including Mr Mataiti's extensive criminal history and failure to gain insight from an anti-violence program. The court found that the starting point for the sentence was appropriate and that there was no basis to interfere with the sentence on grounds of manifest excess. The appeal was dismissed.

The court noted that the concept of a "manifestly excessive" sentence is well-engrained and consistent with the statutory language. The court also noted that sentencing is not a science and that the approach is consistent with the fact that sentencing is not a science. The court found that the sentence imposed was not manifestly excessive and dismissed the appeal. The court did not make any orders varying the sentence or remitting it to the sentencing court.

Orders