Mataiti v Police
[2014] NZHC 1675
•17 July 2014
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 RespondentJudgment:
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 the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
(3) In remitting a sentence under subsection (2)(c), the first appeal court may give the sentencing court any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court.
[5] There is no specific mention in s 250(2) of the Act of a manifestly excessive sentence being a ground of appeal.2 The Court of Appeal has recently taken the opportunity to consider whether that orthodox ground survives. In Tutakangahau v R,3 the Court held there was no reason to suggest that that ground of appeal had fallen away with the passage of the 2011 statute. For the Court, Ellen France J said:
[33] ... [The concept of a “manifestly excessive” sentence] has been part and parcel of the approach to sentencing appeals for a considerable time and we can discern no intention to change the approach in the way contended for by the appellant. To illustrate the longevity of the concept, this Court in The King v Brooks in 1950 endorsed the statement in Archbold’s Criminal Pleading, Evidence and Practice to this effect:
In exercising its jurisdiction to review sentences the Court of Criminal Appeal does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence. The sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before the Court will interfere.
2 Compare with s 121(3)(b) of the Summary Proceedings Act 1957, which used the synonymous
phrase “clearly excessive”.
3 Tutakangahau v R [2014] NCA 279.
[34] The Court noted that the statement in Archbold’s was based on the judgments of the English Court of Appeal in Rex v Shershewsky and R v Gumbs which date back, respectively, to 1912 and 1926. Similarly, in R v Radich, this Court observed that before reducing a sentence, the court must be satisfied that the sentence was manifestly excessive, or wrong in principle (citing Brooks), or additionally, there must be exceptional circumstances.
[35] The concept of manifestly excessive is accordingly well-engrained and we see no reason not to utilise it when considering s 250(2). Indeed, the approach is consistent with the statutory language. Further, the concept is a helpful one and is consistent with the fact that sentencing is not a science.
(footnotes omitted)
The facts
[6] A temporary protection order was issued in favour of the complainant in the Family Court at Whangarei on 3 April 2013. It was designed to prevent objectionable forms of contact between Mr Mataiti and the complainant, with whom he had been living. There were children of their relationship.
[7] The first incident occurred at 4pm on 10 October 2013. That afternoon, the complainant and the children had been doing grocery shopping. Mr Mataiti saw them return to the complainant’s home. The complainant went outside to have a cigarette. Mr Mataiti followed her and demanded that she give him one as well. She
refused. The District Court Judge described what happened in these terms:4
[2] ... You started to argue; you were swearing and yelling at her, calling her a bitch and a whore. She told you to leave. You went back inside the house and slammed the door. She went inside and began to cook dinner. You continued to yell abuse at her. She told you to leave. Again you did not.
[3] She picked up her phone and went upstairs to call the police. She went into the bathroom and put her foot against the door to prevent you from getting in after her. You followed her upstairs, continued to yell at her and began to hit the closed bathroom door with your hands, causing a hole in it. She could hear the door creaking and did not want it to break, so opened it. When you realised she was on the phone to the police you left. You walked towards New World. You had your and the victim’s three year old son with you. You were located a short time later by police. In explanation you said that you did not think it was fair that she could buy cigarettes with your money and not let you have any of them.
[8] It is clear that the conduct described frightened the complainant to the point that she felt sufficiently concerned for her safety to telephone the police. As a result of police intervention, Mr Mataiti was charged with breaching the protection order and wilful damage. He was released on bail on terms forbidding contact between the complainant and himself, unless that were initiated by the complainant. Sentencing
was adjourned while Mr Mataiti underwent counselling.5
[9] The second incident occurred at about 3pm on 20 March 2014. At that time Mr Mataiti remained on bail in respect of the October 2013 charge. He arrived at the complainant’s home address. She agreed to allow him to accompany her to watch their son play rugby. However, when they returned to her home a heated argument ensued. Mr Mataiti declined to leave, despite having been requested to do so a number of times. Mr Mataiti’s refusal to leave resulted in him pushing the complainant and her returning that gesture. The argument was sufficiently troubling for neighbours to call the Police.
Sentencing in the District Court
[10] Having heard and considered submissions on relevant aggravating and mitigating circumstances, Judge McDonald said:6
[7] The aggravating factors are your previous convictions. There are some many, many years ago such as aggravated robbery that you were sentenced to two years, eight months for; 1998, male assaults female, driving matters, wilful trespass, possession of an offensive weapon; 2002, breach of protection order, male assaults female that you got community work and supervision for; 31 March 2011, common assault, two breaches of a protection order which you were sent to jail for, for eight months and 14 days. Then on 6 August 2013 domestic assault that you got community work and further supervision for nine months.
...
[9] I have a letter from the victim who has now moved [to another town] to be closer to her whanau. She wants you back. She has spoken with a victim advisor today. Through a report from the victim advisor, she wants you back. She wants you to be present for the birth of her and your third child, which is due on 21 June. Sitting as I often do in the Family Violence Court this is yet another treadmill one can see. The person thinks that she is
5 See paras [12] and [17] below.
6 Police v Mataiti DC Whangarei CRI-2013-088-2825, 2 May 2014, at paras [7], [9], [10] and
so much in danger from her partner that she needs a protection order and goes and gets one. Then when the man walks through the protection order time and again she phones the police, he is arrested, there is an enforced separation and she wants the man back, for a whole variety of reasons. The Courts take that into account, impose a lenient sentence, the person goes back and all of a sudden problems, and the cycle starts again. This is not a prosecution on behalf of the victim. This is a prosecution on behalf of the community. While her views are always taken into account by sentencing Judges they are not paramount. It is not her wishes, what she thinks.
[10] I have read the pre-sentence report. It is a reasonable favourable document to you. Some of the comments I read in it I find difficult to follow. You are first of all assessed at being at a moderate to high risk of re- offending as you appear to lack insight into your offending. You are assessed as being at a moderate to high risk of harm towards her for the same reasons. You downplay what happened in relation to both of these breaches. You have previously completed a 10 week Men Without Violence programme, which was completed on 26 November 2013. You now say because you have some sort of – well one wonders what to say because you now say that if it happens again you will walk away when you are told to. Then the report writer recommends intensive supervision and community work, which is less, and far less down the scale of penalties, than what was imposed on you as recently as March 2011 for similar offending. On that occasion you went to jail. In my view the need to be consistent, the need to give some force to protection orders, the fact you have had a huge amount of assistance from Community Probation over the years, in my view mitigates against the recommendation.
[11] The starting point for both of these offences – there needs to be a cumulative aspect for the sentence – in my view is eight months’ imprisonment. You are entitled to a 25 percent discount from that meaning that on each of these charges you will be convicted and sentenced to 12 months’ imprisonment. You will be released on the standard and special release conditions as contained in the pre-sentence report which will continue for six months past your sentence end date. On the wilful damage you are convicted and ordered to pay $120 in reparation.
Analysis
[11] Mr Penney, for Mr Mataiti, accepts that imprisonment was an appropriate sentence. The issue is whether the sentence was too long.
[12] Mr Penney submits that the sentencing Judge placed too much emphasis on Mr Mataiti’s previous convictions and failed to take account adequately of a positive pre-sentence report. He emphasised that Mr Mataiti had completed an anti violence programme of some 10 weeks. Mr Penney contended that the starting point for each charge ought to have been four months imprisonment, with a 25% credit being
calculated on that. That would have left an end sentence of three months imprisonment.
[13] For the Police, Ms Anderson submits that the sentence was constructed in an orthodox manner and that the effective term of imprisonment was not out of range, given the circumstances of the particular case.
[14] There is no tariff authority for sentences imposed for breach of protection orders. Each case must be considered on its own facts. However, sentencing must take proper account of the purpose of a protection order and the need for a condign response to breaches. In R v Nathan,7 John Hansen J, for the Court of Appeal, said:8
[25] The Domestic Violence Act 1995 put in place a statutory scheme for the protection of women. We accept the Crown’s submission that repeated breaches of protection orders calls for a condign sentencing response. In cases where there have been repeat offending over a brief period of time a short term of imprisonment is the proper response. While the messages conveyed in breach of the order in this case were not threatening in themselves, we agree with the sentencing Judge that “The threat is the actual writing and the texting, never mind the content”. It is the very sort of harassment that the Act was designed to protect women from. There were the significant aggravating features present that the Crown identified. In the light of those features, Mr Nathan’s statements from the dock and the lack of any substantive mitigating features the sentence Judge should have imposed a short custodial sentence.
[15] The circumstances in which protection orders may be breached vary significantly. There may be very minor breaches that do not necessarily evidence a likelihood of violence or psychological abuse. They may range from the type of communication to which Nathan refers to, for example, offending of the type illustrated in Burton v R.9 In that case, following pleas of guilty, Mr Burton was sentenced on “two sets of charges, involving one count each of threatening to kill and breaching a protection order”.10 The offending involved deliberate attempts by Mr Burton to threaten the protected person, one of which involved confrontation with a sawn-off shotgun. The Court of Appeal found that a starting point of 30
months imprisonment “was well within range”.11
7 R v Nathan CA 209/96, 29 November 2006.
8 Ibid, at para [25]. See also R v D(CA253/2008) [2008] NZCA 254 at para [47].
9 Burton v R [2014] NZCA 221.
10 Ibid, at para [1].
11 Ibid, at para [15].
[16] The present case falls between the circumstances described in Nathan and Burton. Mr Penney pointed to Tutbury v Police12 as an appropriate comparator. In that case, Mr Tutbury had pleaded guilty to three charges: doing a threatening act, contravening a protection order and male assaults female. The District Court Judge had taken a starting point of 13 months imprisonment. On appeal, it was submitted that the starting point should have been lower, in the range of six to nine months imprisonment.13 In this Court, Asher J emphasised the need to consider the starting point in the context of “a continuum of intimidation which [had] an overlay of violence and defiance of Police or Court directions”. He considered a starting point of 13 months, while severe, to be “not necessarily out of the [available] range”.
[17] In this case, the first incident was one in which the complainant was so fearful of her safety that she telephoned the Police while Mr Mataiti was in her house. Mr Mataiti acknowledged that he had done wrong by entering his guilty pleas. He was released on bail to undergo counselling before being sentenced. Yet, the second offence occurred while he was on bail and in circumstances where the complainant’s neighbours were sufficiently concerned to call the Police. Although Mr Mataiti had undergone a course of some 10 weeks, Men Against Violence, the counselling he received could only be regarded, as Judge McDonald said, as “wholly
unsuccessful”.14 The lack of insight apparent in Mr Mataiti’s actions on the second
occasion is highlighted in the pre-sentence report.
[18] Although the offending in this case could be said to be different in kind from that of Mr Tutbury, the nature of the aggravating circumstances (previous convictions and a failure to gain insight from the anti violence programme, coupled with offending on bail and while subject to a sentence of supervision) are such as to justify the starting point taken by the District Court Judge. There is no basis to challenge the credit given for mitigating factors.
[19] Further, it was appropriate for the Judge to regard the victim’s desires for
Mr Mataiti to return to her with a degree of cynicism. I agree with the Judge’s view
that a prosecution is brought on behalf of the community and that while the victim’s
12 Tutbury v Police [2013] NZHC 2960.
13 Ibid, at paras [2] and [3].
14 Police v Mataiti DC Whangarei CRI-2003-088-2825, 2 May 2014 at para [5].
views must be taken into account they do not, in a case such as this, mandate a more lenient sentence.15
Result
[20] Having regard to the nature of Mr Mataiti’s offending and the aggravating factors to which I have referred, I am satisfied that while Judge McDonald’s sentence may be seen as stern, there is no basis to interfere with it on grounds of manifest excess.
[21] The appeal is dismissed.
P R Heath J
Delivered at 2.30pm on 17 July 2014
15 Ibid, at para [9], set out at para [10] above.
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