Matangi v Police
[2018] NZHC 1479
•20 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-128
[2018] NZHC 1479
BETWEEN PEBBLES MATANGI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 June 2018 Appearances:
R E V Slade for Appellant
A F Devathasan for Respondent
Judgment:
20 June 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 20 June 2018 at 3.45 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
MATANGI v POLICE [2018] NZHC 1479 [20 June 2018]
Introduction
[1] On 22 March 2018, Ms Pebbles Matangi was sentenced in the Papakura District Court on three sets of charges arising from offending in October, November and December 2017. Judge Ronayne imposed a total end sentence of 28 months’ imprisonment, as well as disqualification from driving for three and a half years.1
[2] Ms Matangi now appeals against her sentence on the grounds that the Judge erred in failing to give appropriate weight to her personal circumstances, particularly her youth, and in imposing cumulative sentences of imprisonment and disqualification without having regard to totality.
The offending
[3]Ms Matangi was sentenced on the following charges:
Group one: October 2017
Date of offending
Offence
Section
Maximum penalty
14 October
2017
Receiving stolen property (over
$1,000)
ss 246(1) and 247(a) of the Crimes Act 1961
seven years’ imprisonment
14 October
2017
Failing to stop when followed by police (x 2)
s 52A of the Land Transport Act 1998
$10,000 fine
14 October
2017
Possession of an offensive weapon
s 202A of the Crimes Act
three years’ imprisonment
14 October
2017
Possession of utensils for
methamphetamine use
s 13 of the Misuse of Drugs Act 1975
one year
imprisonment or
$500 fine or both
14 October
2017
Reckless driving
s 35 of the Land Transport Act
three months’ imprisonment or a
$4,500 fine;
mandatory
1 Police v Matangi [2018] NZDC 5613.
disqualification of six months or more 14 October
2017
Unlicensed driver failing to comply with prohibition
s 52 of the Land Transport Act
$10,000 fine
Group two: November 2017
5 November
2017
Burglary
s 231 of the Crimes Act
10 years’ imprisonment
5 November
2017
Dishonestly using a document
s 228 of the Crimes Act
seven years’ imprisonment
7 November
2017
Failing to answer bail
s 38 of the Bail Act 2000
one year
imprisonment or a
$2,000 fine
Group three: December 2017
2 December
2017
Unlawful
interference with a motor vehicle
s 226(2) of the Crimes Act
two years’ imprisonment
2 December
2017
Unlawful presence in a building (x 2)
s 29 of the Summary Offences Act 1981
three months’ imprisonment or
$2,000 fine
2 December
2017
Possession of a knife in public
s 13A of the Summary Offences Act
three months’ imprisonment or
$2,000 fine
Group one: the October 2017 offending
[4] On 14 October 2017, while prohibited from driving, Ms Matangi was the driver of a stolen Subaru motor vehicle in Manukau. Police activated their red and blue flashing lights and attempted to stop the vehicle. However, Ms Matangi failed to stop and accelerated away. An extended police chase followed, during which Ms Matangi exceeded speed limits, drove through red lights and made several dangerous manoeuvres in congested traffic. As she turned into Greenmount Drive she collided with the curb, causing severe damage to the front left suspension of the vehicle. She was then stopped by police and arrested. Police located a knife concealed in Ms Matangi’s trousers. It had a double-edged blade of approximately 12 centimetres in length. They also located two used glass methamphetamine pipes in the vehicle.
[5] Ms Matangi first appeared on these charges on 16 October 2017, and was remanded on bail. The subsequent offending was therefore committed while she was on bail.
Group two: the November 2017 offending
[6] On 5 November 2017, Ms Matangi entered a residential property in Papakura. The house was occupied by people who were known to her, and she entered their property while they were out. She took a number of their personal items, including
$2,250 in cash, two wallets, a laptop, cell phone, jewellery, power tools and a VISA card. The total value of the items, including the cash, was approximately $6,000.
[7] Later that same day, Ms Matangi used the stolen VISA card to purchase a drink and confectionery to the value of $8.00.
[8] On 7 November 2017, Ms Matangi was due to appear in the District Court in relation to the group one (October) offending. She failed to appear.
Group three: the December 2017 offending
[9] On the morning of 2 December 2017, Ms Matangi was at a residential address on Great South Road, Opaheke. The occupant, who was not known to Ms Matangi, returned home to find her rummaging through the glovebox of the occupant’s Nissan motor vehicle parked in the garage. The occupant shouted at Ms Matangi to get off her property.
[10] Ms Matangi left the property, and the police then chased her through several residential properties. She entered a property at Fairview Ave, Opaheke and began to walk up the internal staircase. Disturbed by the occupant, Ms Matangi left the property over a fence and entered a property at Callis Ave, Opaheke. She knocked on the door and asked the female occupant for a glass of water. When the occupant turned her back, Ms Matangi entered the house without permission. Realising the police were at the property, she ran out the back door but was apprehended on the back lawn.
[11] When police searched Ms Matangi, they located a stainless steel multi-tool, with a number of different blades, concealed in her trousers.
Ms Matangi’s personal circumstances
[12]At the time of the offending, Ms Matangi was 20 years old; she is now aged
21. She has two previous convictions arising out of a single incident in December 2014: driving with excess breath alcohol as a person under the age of 20, and giving false details as to her identity when stopped by police. She received a sentence of community work and three months’ disqualification from driving on those charges.
[13] The pre-sentence report states that factors contributing to Ms Matangi’s offending include her attitudes, lifestyle, friends and associates, and drugs. When interviewed, she displayed what is described as a “cavalier attitude” towards her offending, and showed no remorse for her victims or any regard for the consequences of her actions. Rather, the report writer considered her attention was more focused on her love of driving motor vehicles at high speeds.
[14] Ms Matangi admitted to using marijuana and methamphetamine over the past ten years. She also admitted to having self-harmed and attempted suicide recently, while in custody. The pre-sentence report states that she has no contact with her mother and father, and considers that her whānau do not like her.
[15] Ms Matangi was assessed as presenting a medium to high risk of re-offending. A sentence of imprisonment was recommended to give her the opportunity to address her rehabilitative needs in a structured environment.
District Court sentencing
[16] After setting out the charges, the facts of the offending and the contents of the pre-sentence report, Judge Ronayne identified the aggravating features of the first group of offending. He observed that it was a brazen series of offending, and that the driving was reckless in the extreme. It continued over a sustained period and created severe actual danger to others.
[17] Turning to the second group of offences, the Judge considered it a “serious aggravating factor” that it was a burglary of a dwelling house by day, noting that there was an inherent risk of confrontation with the occupant.2 He stated that “large unrecoverable losses” were caused by this offending, and the subsequent use of the victim’s VISA card to make a small purchase added “insult to injury”.3
[18] As for the third group of offences, the Judge considered the interference with the motor vehicle to be serious, describing it as “tantamount to burglary” and commenting that Ms Matangi was very fortunate not to have been charged with burglary.4 Further, it was an aggravating feature that an actual confrontation with the occupant occurred.
[19] Finally, the Judge considered it one of the most serious aggravating features of the offending that Ms Matangi was on bail for the earlier offending at the time of the November and December offending. In particular, the offending committed while on bail was similar to the kind of offending in relation to which Ms Matangi was on bail (for example, the possession of a knife on two occasions).
[20]The Judge then adopted the following starting points on each charge:
Group one: October 2017
Offence
Starting point
Receiving stolen property (over $1,000)
six months’ imprisonment (lead offence)
Failing to stop when followed by police (x 2)
convicted and discharged
Possession of an offensive weapon
one month imprisonment (concurrent)
Possession of utensils for methamphetamine use
three months’ imprisonment (concurrent)
Reckless driving
three months’ imprisonment (cumulative)
Unlicensed driver failing to comply with prohibition
convicted and discharged
2 At [21].
3 At [21].
4 At [22].
Group two: November 2017
Burglary
20 months’ imprisonment (lead offence)
Dishonestly using a document
six months’ imprisonment (concurrent)
Failing to answer bail
one month (cumulative)
Group three: December 2017
Unlawful interference with a motor vehicle
three months’ imprisonment (lead offence)
Unlawful presence in a building (x 2)
convicted and discharged
Possession of a knife in public
two months’ imprisonment (cumulative)
[21] The Judge then applied the following uplifts and discounts to the starting points:
(a)Group one:
(i)discount of one month for youth
(ii)discount of two months for guilty pleas (25 per cent)
(b)Group two:
(i)uplift of three months for offending while on bail
(ii)discount of six months for guilty pleas (25 per cent)
(c)Group three:
(i)discount of one month for guilty pleas (20 per cent)
[22]The total end sentence came to 28 months’ imprisonment.
[23] The Judge also imposed periods of disqualification from driving on the driving-related charges. The way in which the Judge structured the disqualification periods is not entirely clear from his sentencing notes. Counsel are agreed that the Judge appears to have intended to impose 18 months’ disqualification on the reckless driving charge, and a disqualification period of two years on all the other driving- related charges (to be served concurrently with one another, but cumulative on the
reckless driving disqualification period). This resulted in a total period of disqualification of 42 months, or three and a half years.
Submissions on appeal
The appellant
[24] Ms Matangi appeals against the sentence imposed on the grounds that the Judge erred in:
(a)giving insufficient weight to Ms Matangi’s personal circumstances, in particular her youth; and
(b)imposing cumulative sentences of imprisonment and disqualification and not adjusting for totality.
[25] In relation to the first ground, Mr Slade for Ms Matangi points out that the Judge did not give any youth discount in relation to the November and December offending, and only gave a discount of one month for youth in relation to the October offending. Mr Slade submits that youth discounts of between 20 and 40 per cent have been given in other comparable cases, and cites the comments of the Court of Appeal regarding youth discounts in Churchward v R.5 He emphasises that Ms Matangi was only 20 years old at the time of the offending, and submits that her offending consists of impulsive actions by a young person who is yet to fully mature and who is clearly susceptible to negative influences from her peers. He refers to her problems with drug use and her lack of connection to her whānau. He also relies on Te Whata v Police as a case in which a youth discount was given for an offender in a similar position to Ms Matangi.6
[26] Mr Slade submits that a youth discount of around 20 per cent (six months) should have been imposed in the present case, having regard to the crushing effect of a first-time sentence of imprisonment on Ms Matangi, at age 21, and her greater capacity for rehabilitation as a young person with limited prior convictions.
5 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
6 Te Whata v Police [2016] NZHC 1293.
[27] In relation to the second ground of appeal, Mr Slade does not take issue with how the Judge constructed the sentences. However, he submits that the Judge failed to consider the totality principle after imposing cumulative sentences. He contends that as a result, the end sentence was out of proportion to the gravity of the overall offending, particularly with regard to Ms Matangi’s age, the fact this was her first prison sentence, her lack of any relevant prior convictions, and her compliance with her previous community-based sentence. In making this submission he relies on the decision of this Court in Proctor v Police.7
[28] Mr Slade further submits that the disqualification periods should not have been cumulative, relying on Robarts v Police which he says involved more serious driving- related offending than the present case and in which a 16-month disqualification period was substituted on appeal.8 Mr Slade submits that the appropriate disqualification period in the present case is 16 to 20 months.
[29] In summary, Mr Slade says that the sentence is manifestly excessive and an end sentence of less than two years’ imprisonment and 16 to 20 months’ disqualification from driving would have been appropriate.
The respondent
[30] Ms Devathasan for the respondent submits that the offending, taken as a whole, was serious. The reckless driving was prolonged and extreme, creating severe actual danger to members of the public. The burglary targeted a dwelling house and items valued at $6,000 were stolen, and because the owner of the house was known to Ms Matangi the offending involved a breach of trust. Finally, the unlawful inference with a vehicle and unlawful presence on property involved intrusion into dwelling houses and actual confrontation with occupants.
[31] In relation to the youth discount given, Ms Devathasan submits that such a discount is always discretionary. She submits that there was no information before the Judge to indicate that any of the concerns in Churchward – immaturity, poor impulse
7 Proctor v Police [2018] NZHC 763.
8 Robarts v Police [2014] NZHC 666.
control or lack of neurological development – applied particularly to Ms Matangi. In any event, the Judge gave a modest youth discount and Ms Devathasan submits that he appropriately exercised his discretion in this regard. Although he gave no youth discount in relation to the November and December offending, Ms Devathasan submits that it was open to him to conclude that these formed part of a pattern of offending indicating that Ms Matangi had limited prospects of rehabilitation. She also notes that Ms Matangi expressed no remorse, and displayed a “cavalier attitude” to her offending.
[32] As regards the totality principle, Ms Devathasan submits that the Judge was correct to impose cumulative sentences for each group of offending, as they did not form a connected series and were largely different in kind. Within each group, the Judge specified cumulative or concurrent sentences for each offence, recognising where appropriate that some offences formed a connected series.
[33] With reference to case law, Ms Devathasan submits that the sentence imposed for each group was within the available range, and indeed that the sentence for the group three offending was below the applicable range for such offending. Although the Judge did not expressly make any reduction for totality, she submits that the low sentence imposed on the group three offending resulted in an end sentence that was proportionate to the gravity of the overall offending.
[34] In relation to the disqualification period, Ms Devathasan submits that the 18- month disqualification period on the reckless driving charge was justifiable and appropriate. However, she acknowledges that the Judge exceeded his jurisdiction in imposing a two-year cumulative sentence on all the other charges: she says that the total disqualification period available to the Judge was three years, which is the period she submits should have been imposed.
Approach on appeal against sentence
[35] I must allow Ms Matangi’s appeal if I am satisfied that, for any reason, there is an error in the sentence imposed by the District Court and if I am satisfied a different sentence should be imposed.9 In any other case, the appeal must be dismissed.10
[36] The Court of Appeal in Tutakangahau v R confirmed that the approach remains that of determining whether or not the end sentence is “manifestly excessive”.11 A sentence appeal therefore turns on a consideration of the final outcome: although the route by which the sentencing Judge reached that outcome is relevant, it is seldom pivotal.12
Did the Judge err in imposing cumulative sentences of imprisonment without regard to totality?
[37] The Judge effectively treated each set of offending (the October, November and December charges) as discrete and adopted a cumulative approach to sentencing, identifying a lead charge within each set of offending and uplifting where necessary to reflect the other charges within that set.
[38] Section 84 of the Sentencing Act 2002 provides guidance on the use of cumulative and concurrent sentences of imprisonment. It states that cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.13 On the other hand, concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.14 In determining whether two or more offences form a connected series, the Court may consider the time at which they occurred and the overall nature of the offending, as well as any other relationship between the factors that the Court considers relevant.15
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
12 Ripia v R [2011] NZCA 101 at [15].
13 Sentencing Act 2002, s 84(1).
14 Sentencing Act, s 84(2).
15 Sentencing Act, s 84(3).
[39] In the present case I consider that Judge Ronayne was entitled to adopt a cumulative approach to sentencing: the three sets of offending were separated by several weeks and despite some similarities in the offences committed, they did not form part of a connected series. As I recently observed in Proctor v Police:16
While there is scope for taking a different view on this point and for the adoption of a concurrent sentencing approach, I am not satisfied that the Judge erred in adopting a cumulative approach. However, having adopted a cumulative approach, he was required to consider and apply the totality principle: cumulative sentences of imprisonment must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[40] Judge Ronayne did not expressly refer to the totality principle in the course of sentencing Ms Matangi. Although s 85 of the Sentencing Act requires the sentencing Judge to consider totality when imposing concurrent sentences, such consideration may be implicit rather than explicit.17 The real question on appeal is whether the total period of imprisonment imposed was in fact wholly out of proportion to the gravity of the overall offending.
[41] In order to determine the answer to that question, it is necessary to consider whether the starting points adopted for each set of offending were within range, before assessing the cumulative effect of those starting points. For clarity and ease of comparison, I will refer only to the starting points adopted by the Judge in this case and other cases, leaving out consideration of personal factors at this stage.
Group one offending: October 2017
[42] The group one offending comprises seven charges. The most serious of these are the charges of receiving stolen property (the motor vehicle) and reckless driving. Receiving stolen property valued at over $1,000 carries a maximum sentence of seven years’ imprisonment.18 There is no tariff judgment for the offence of receiving, although factors such as the value of the goods, the duration of the offending, the existence of a commercial element and the closeness of the relationship between the
16 At [21] (footnotes omitted).
17 Knock v Police [2017] NZHC 910 at [17].
18 Crimes Act 1961, s 247(a).
burglar and receiver will be relevant.19 Very little information is available regarding these factors in the present case. The car was stolen overnight prior to Ms Matangi’s offending. Its value is unclear. There is no evidence of a commercial element to the offending.
[43] In light of the information available, I consider the Judge’s starting point of six months on the receiving charge was within range. In Ellis v R, Mr Ellis was found in possession of goods valued at around $5,000 some hours after the burglary of a residential property.20 The Court of Appeal held that the Judge’s starting point of 18 months was within the available range, although stern.21
[44] As regards the driving, I agree with the Judge’s description that it was reckless in the extreme. It continued over a prolonged period as Ms Matangi attempted to evade police, and her driving placed the lives of others at risk multiple times. Although it reflected the maximum sentence available on a charge of reckless driving,22 an uplift of three months’ imprisonment to reflect this charge was entirely appropriate. This is particularly so given that no further uplift was imposed to reflect the other charges within this set, which included possession of an offensive weapon and utensils for methamphetamine. I consider that there is no error in the effective starting point of nine months’ imprisonment adopted in respect of the group one offending.
Group two offending: November 2017
[45] The lead offence within this set was the burglary, which carries a maximum sentence of 10 years’ imprisonment.23 As Judge Ronayne observed, the fact that it was a burglary of a residential dwelling was a significant aggravating feature due to the heightened risk of confrontation with the occupants.24 Items with a total value of
$6,000 were stolen.
19 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].
20 Ellis v R [2012] NZCA 513.
21 At [9].
22 Land Transport act 1998, s 35(2)(a).
23 Crimes Act 1961, s 231(1).
24 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
[46] Judge Ronayne adopted a starting point of 20 months on the burglary charge. Mr Slade submitted that this starting point was stern, although he did not press the point. In Proctor v Police, I reviewed the sentences imposed for burglaries of broadly comparable seriousness to the present case.25 Those cases involved burglaries of residential dwellings where the items stolen ranged in value between $1,340 and
$15,000.26 Starting points of between 17 to 20 months were adopted. I therefore
consider that there was no error in the starting point of 20 months adopted by the Judge in the present case. The uplift of one month for failing to answer District Court bail was perhaps somewhat stern, but nevertheless available to the Judge.
Group three offending: December 2017
[47] Ms Devathasan relies on Kara-Newcombe v Police and McAlister v Police (and the cases cited therein) to support the argument that the sentence imposed for the December offending was below the available range.27
[48] In Kara-Newcombe v Police, the defendant was sentenced on a single charge of unlawfully getting into a motor vehicle. The defendant’s associate stole the keys to a vehicle parked outside a bar, and the defendant and his associate then drove the vehicle away. They were stopped by police some time later and fled the scene, but were apprehended and arrested. By comparison to a number of other cases involving brief “joyriding” in a stolen vehicle, the High Court held that the appropriate starting point should have been seven months’ imprisonment.
[49] The present case is somewhat different, in that Ms Matangi did not drive the vehicle away because she was chased off the property by the occupant. However, her offending has the aggravating feature of unlawful presence on a residential property, and there was actual confrontation with the occupant.
[50] In McAlister v Police, the defendant was sentenced in the District Court to 20 months’ imprisonment in respect of a series of car-related offences committed between
25 At [27]–[31].
26 See French v Police [2015] NZHC 2635; Blissett v Police [2013] NZHC 156; Bates v R [2016] NZCA 456; Hotene v Police [2014] NZHC 2081.
27 Kara-Newcombe v Police [2018] NZHC 25; McAlister v Police [2017] NZHC 2881.
May and September 2017. These included unlawfully entering a vehicle and causing damage, stealing a wheel from a car, unlawfully taking a vehicle, failing to stop when pursued by police, and dangerous driving. Simon France J converted the sentence of 20 months’ imprisonment to a sentence of nine months’ home detention. Because the question on appeal was whether a sentence of home detention should be substituted, this case is of limited relevance for present purposes.
[51] Comparing the present case to Kara-Newcombe v Police and McAlister, and noting that Ms Matangi unlawfully entered two further residential properties in her subsequent flight from police, the starting point of five months’ imprisonment adopted on the group three offending was within range. I accept the Crown submission that as a stand-alone sentence for this offending, it could be considered somewhat lenient.
Cumulative starting points and the totality principle
[52] I have accordingly determined that the starting points imposed in respect of each set of offending were within range. Adding them together, they come to a cumulative total of 35 months’ imprisonment before making allowance for personal factors. The question is whether the Judge should have made some reduction for totality rather than simply adding the cumulative periods together.
[53] Ms Devathasan relies on Knock v Police28 and Waenga v Police29 to support the submission that the sentence imposed for the offending as a whole was squarely within range.
[54] In Knock v Police, Mr Knock had been sentenced in the District Court to a total of 24 months’ imprisonment on five charges: burglary; driving while disqualified (third or subsequent); driving with excess breath alcohol (third or subsequent); dangerous driving; and shoplifting. In brief, he had stolen a car from a residential property and driven it at speed through residential streets, weaving across both sides of the road. He collided with a lamp post and the car was effectively written off.
28 Knock v Police [2017] NZHC 910.
29 Waenga v Police [2016] NZHC 1712.
Breath testing revealed he had been drinking, and he was also a disqualified driver at the time.
[55] The District Court Judge adopted a concurrent approach to sentencing, with a 20-month starting point for the burglary and a 12-month uplift for the driving offending (resulting in an effective starting point of 32 months). The decision was upheld on appeal.
[56] In Waenga v Police, Mr Waenga was sentenced on six charges: breach of home detention, burglary, dishonestly using a document, possessing instruments for conversion and two charges of unlawfully being in an enclosed yard. The incidents giving rise to the charges occurred in January, February and March 2015. Mr Waenga breached the conditions of his home detention sentence in January 2015. In February, he committed a burglary at business premises, stealing goods with an estimated value of around $20,000. In March, he used a stolen VISA card to make several purchases totalling around $100. The following day, he was found unlawfully in two residential properties in possession of screwdrivers, bolt cutters and pliers. The High Court upheld a starting point of 24 months for the burglary as the lead offence, with an uplift of four to five months to reflect the other charges (an end starting point of 29 to 30 months).
[57] Ms Devathasan submitted that Mr Waenga’s offending is broadly comparable to the group two and group three offending in the present case, leaving out group one. It is clear that, taken together, the three sets of offending committed by Ms Matangi are more serious than the offending in both Knock and Waenga.
[58] Having regard to the starting points adopted in Knock and Waenga, I do not consider that the Judge’s cumulative starting point of 35 months’ imprisonment was wholly out of proportion to the gravity of the overall offending in this case, and therefore no reduction for totality was required.
Did the Judge give an insufficient discount for Ms Matangi’s personal circumstances?
[59] Judge Ronayne discounted the sentence on the October offending by one month to reflect Ms Matangi’s youth. He expressly recorded:30
I give you off month off for your relative youth … I am saying right now that that is the only discount that you are getting for youth in this sentencing process.
[60] He did not state any reasons for taking this approach. The discount of one month amounted to a little over 10 per cent of the starting point on the October offending.
[61]The Crown cites the following passage from the Court of Appeal’s decision in
Pouwhare v R:31
… the fact [that] an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed.
[62] In the present case, Ms Matangi’s offending was certainly serious and the sentencing principles of denunciation and deterrence are engaged.32 Nevertheless, I also consider it a case where the factors stated in Churchward are relevant:
(a)young people are more prone to take risks and have a less developed ability to plan, consider, control impulses and make wise judgments;
(b)young people are susceptible to negative influences and outside pressures;
(c)a young person’s character is not yet fixed, and he or she therefore has greater prospects of rehabilitation; and
30 At [24].
31 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
32 Sentencing Act 2002, ss 7(1)(e) and 7(1)(f).
(d)long prison sentences can have a crushing effect on young people.
[63] Ms Matangi is 20 years old and prior to this offending, her criminal history was very limited. She has never before been sentenced to imprisonment. The negative influence of her friends and associates was identified in the pre-sentence report as a factor contributing to her offending. She is disconnected from her whānau. I consider this a case where a youth discount should have been applied across all the charges Ms Matangi faced, not just the October offending. In my view it was an error on the Judge’s part to isolate the October offending and apply a youth discount only to this subset.
[64] Ms Devathasan submits that the Judge’s approach was justified on the basis that the November and December offending were discrete sets of offending while Ms Matangi was on bail, and demonstrated that her rehabilitative prospects were limited as she was commencing a pattern of offending. I do not agree that this warrants the non-application of a youth discount on the later charges. While a lengthy criminal history may mean that some young offenders are entitled to a lesser discount for youth, in this case Ms Matangi had a very limited history before this offending. The October, November and December offending all occurred within a relatively short timeframe and is properly seen as being all within one category. At the time of the November and December offending, Ms Matangi had not yet been sentenced on the October charges. She had therefore not yet been reprimanded and given an opportunity to rehabilitate. The Churchward factors (immaturity, risk-taking, lack of consequential thinking and susceptibility to negative influences) would, in my view, still have been operative in relation to the November and December offending. I therefore consider a youth discount should have been applied across all three groups of offending, and that the Judge erred in this regard.
[65] Mr Slade submits that discounts of between 20 to 40 per cent have been given for youth in previous cases, relying on the Court of Appeal’s comment in BB (CA732/2012) v R.33 However, in that case the sentencing Judge had allowed a 40 per cent discount in relation to sexual offending when the defendant was between 14 and
33 BB (CA732/2012) v R [2013] NZCA 139 at [12].
17 years of age, and the Court of Appeal regarded this as “towards the upper reaches of the available range”.34 At the age of 20, Ms Matangi is not entitled to such a significant discount. Nevertheless, more modest discounts of around 10 per cent have been given to reflect youth in cases where the offender was 20 years old at the time of the offending.35 I consider that a discount of 10 per cent across all charges was appropriate in this case.
[66] In reaching this conclusion, I note that Mr Slade also relied on Te Whata v Police, where the Judge concluded that the end period of imprisonment was in all the circumstances wholly out of proportion to the gravity of the overall offending. Mander J commented:36
I am fortified in reaching that conclusion by the need to recognise the impact of such a lengthy sentence on a relatively young offender facing what appears to be her first sentence of imprisonment.
[67] In adjusting the sentence, however, Mander J awarded a discount of only a little over 11 per cent to account for Ms Te Whata’s personal circumstances. That discount reflected Ms Te Whata’s youth as well as her extremely difficult upbringing. I am therefore not persuaded that Ms Matangi should receive any greater discount than 10 per cent to account for her youth.
Conclusion as to sentence of imprisonment
[68] Having concluded that the Judge erred in failing to apply a youth discount across all the charges, I will carry out the sentencing exercise afresh to determine whether his error resulted in a sentence that was manifestly excessive.
[69] On the starting point of 35 months, the Judge was entitled to impose the uplift of three months for offending while on bail, which is an aggravating feature personal to the offender. Had he then applied a 10 per cent discount across all the charges, followed by a guilty plea discount of between 20 and 25 per cent,37 he would have
34 At [13].
35 See Reuben v R [2017] NZCA 138 at [30]–[34]; R v Rakich [2014] NZHC 3287 at [111] and [140].
36 At [31].
37 No issue was taken with the quantum of the guilty plea discounts applied by the Judge, and counsel were not able to explain why a 20 per cent guilty plea discount was awarded on one set of charges
reached an end sentence of 26 months’ imprisonment. The actual sentence imposed was 28 months’ imprisonment. Comparing the two, I am unable to say that the end sentence was manifestly excessive. The appellate Court on a sentence appeal should not “tinker” with the sentence imposed by making very slight adjustments.38
Did the Judge err in imposing cumulative disqualification periods?
Jurisdiction to impose periods of disqualification
[70] Ms Matangi was convicted of the following driving-related offences: two charges of failing to stop when followed by police; reckless driving; and failing to comply with a prohibition as an unlicensed driver.
[71] Beginning with the failure to comply with a prohibition as an unlicensed driver, there is no mandatory period of disqualification in respect of this charge. However, s 80 of the Land Transport Act allows the Court to order disqualification from driving for such period as the Court thinks fit if a person is convicted of an offence relating to road safety under the Land Transport Act. I consider there is a clear connection between an unlicensed driver failing to comply with a prohibition on driving and road safety, in the sense that one is affected by the other.39 In my view the Judge was entitled to impose a period of disqualification as he saw fit on that charge.
[72] As for reckless driving, s 35(2)(b) of the Land Transport Act requires the Court to order disqualification for six months or more in relation to that charge. Because six months’ disqualification is a mandatory minimum sentence on this charge, the Judge was entitled to impose a sentence of 18 months’ disqualification for Ms Matangi’s reckless driving.
[73] Turning then to failure to stop for police, s 52A(3) of the Land Transport Act states that if a person is convicted of a first offence of failing to stop and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, the Court must order disqualification for six months.
and 25 per cent on the others. However, it does not appear that Ms Matangi pleaded guilty to all charges immediately, indicating that the Judge’s discounts of 25 per cent were generous.
38 See Robinson v Police [2017] NZHC 2655 at [56].
39 See Husband v Napier City Council [1979] 1 NZLR 317 (CA) at 319.
It appears that six months is the only available period of disqualification on this charge where those circumstances exist. In other provisions of the Land Transport Act, the Court is required to order disqualification for six months “or more”.40 Six months operates as a mandatory minimum in those cases. However, the phrase “or more” is absent from s 52A(3), thereby signalling that it has been deliberately omitted, and that six months’ disqualification must be imposed. This means the Judge exceeded his jurisdiction in imposing two years’ disqualification on the first charge of failing to stop.
[74] As for the second charge of failing to stop, s 52A(4) provides that if a person is convicted of a second such offence, the Court must order the person to be disqualified from driving for one year. Again, this operates as a mandatory sentence. The Judge therefore also exceeded his jurisdiction in imposing two years’ disqualification on the second charge of failing to stop.
Cumulative or concurrent periods of disqualification?
[75] Section 52A(6) then provides that a disqualification ordered under s 52A(3) or s 52A(4) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the facts that gave rise to the person’s conviction for failing to stop for police. Section 52A(8) provides that subsection (6) does not apply to offending that occurs after the facts that gave rise to the person’s conviction for failing to stop for police.
[76] In my view, the two charges of failing to stop arose out of the same facts and the Judge was required to make the two disqualification periods (of six months and one year respectively) cumulative on one another (resulting in a total disqualification period of 18 months on those two charges). However, there was no requirement to make that 18-month disqualification period cumulative on the 18-month disqualification period imposed for the reckless driving, which arose out of separate facts occurring after the failures to stop.
40 See ss 32(3)(b), 56(3)(b) and 58(2)(b).
[77] I consider that the two disqualification periods (on the reckless driving and failing to stop charges, respectively) should have been imposed concurrently. In Nicol v Police, Heath J observed that although cumulative disqualification periods may be imposed, it is generally preferable for District Court Judges to impose concurrent periods.41 When determining whether to impose cumulative or concurrent disqualification periods, it is appropriate for the Court to have regard to the factors listed in s 84 of the Sentencing Act,42 namely whether the offences are similar in kind, the time at which they occurred and whether they formed part of a connected series. In the present case Ms Matangi’s driving-related offending all occurred as part of a connected “spree”: after she failed to stop, a police chase ensued during which she drove recklessly to avoid detection. Concurrent periods of disqualification were appropriate.
What was the total period of disqualification that should have been imposed?
[78] Mr Slade relies on Robarts v Police, which involved two sets of offending occurring in May 2012 and August 2012. In May 2012, Mr Robarts failed to stop for police and then drove away at speed, overtaking vehicles erratically on the wrong side of the road and crashing into a parked car. In August 2012, Mr Robarts again failed to stop for police and accelerated away at speed. At one point he stopped the car and deliberately reversed it into the police vehicle. He then sped away and crashed into a car parked on the side of the road. When he was eventually apprehended, his breath alcohol was found to be over the limit for a person under 20. He also did not have a driver’s license. Mr Robarts was convicted of eight driving-related charges as a result. He was just under the age of 20 at the time of the offending.
[79] The District Court Judge adopted a cumulative approach and imposed a total of 21 months’ disqualification. On appeal, Ellis J referred to the need to consider totality and to the comment of Panckhurst J in Dixon v Police that it “has long been recognised that lengthy periods of disqualification frequently prove so daunting for
41 Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [31], recently cited with approval in Robarts v Police [2014] NZHC 666 at [22].
42 See Nicol v Police HC Auckland CRI-2005-404-312, 3 October 2005 at [32], where Heath J adopts this approach.
offenders that further offending results”.43 Her Honour was satisfied that the 21-month period of disqualification was manifestly excessive and allowed the appeal, substituting a total disqualification period of 16 months.
[80] Mr Robarts’ driving-relating offending was more serious than that of Ms Matangi: he was involved in two police chases, and in the course of one of them he deliberately reversed into a police car causing damage. Comparing the two cases, it is clear that the total period of 42 months’ disqualification imposed in the present case was manifestly excessive.
[81] I consider that a total disqualification period of 18 months should have been imposed on all charges. As noted above, that should have been structured in the following way:
(a)18 months on the reckless driving charge;
(b)six months on the first charge of failing to stop (concurrent with (a)); and
(c)one year on the second charge of failing to stop (cumulative on (b), concurrent with (a)).
[82] I impose no further disqualification period in respect of the charge of unlicensed driver failing to comply with a prohibition.
[83] The disqualification period is to commence from the date of Ms Matangi’s release from prison.
Result
[84] The appeal is allowed in part. Ms Matangi’s sentence of 28 months’ imprisonment remains in place. However, the District Court Judge’s orders disqualifying Ms Matangi from driving are quashed and a disqualification period of
43 Dixon v Police HC Christchurch CRI-2006-409-244, 19 March 2007 at [42], cited in Robarts v Police [2014] NZHC 666 at [25].
18 months is imposed in its place, commencing from the date of Ms Matangi’s release from prison.
Paul Davison J
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