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Matara v Attorney-General

Matara v Attorney-General

Case [2023] NZHC 2888 16 October 2023

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-80

[2023] NZHC 2888

UNDER the New Zealand Bill of Rights Act 1990

IN THE MATTER

of an application for Declarations of Inconsistency and Declarations of Compensation under the NZBORA

BETWEEN

BILLY MARK MATARA

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 7 August 2023

Appearances:

A J Ellis for the Applicant

K Laurenson and A J Vincent for the Respondent

Judgment:

16 October 2023

JUDGMENT OF COOKE J

[1] On 11 September 2017 the plaintiff was sentenced to 10 years and two months’ imprisonment for attempted murder.1 The Judge found that she was required to impose this sentence without parole in accordance with s 86C(4) of the Sentencing Act 2002, an aspect of the three strikes regime then in effect.2 She further indicated that she would otherwise have imposed a minimum period of imprisonment of 40 per cent of the sentence.3

1 R v Matara [2017] NZHC 2198.
2 At [20].
3 At [21].

MATARA v ATTORNEY-GENERAL [2023] NZHC 2888 [16 October 2023]

[2] On 7 October 2021 the Supreme Court released its decision in Fitzgerald v R which reinterpreted some of the statutory provisions that formed part of the three strikes regime in light of the right in s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).4 Subsequently, on 16 December 2021, the Court of Appeal allowed the plaintiff’s sentence appeal. The Court held that it followed inexorably from Fitzgerald that s 86C(4) of the Sentencing Act was to be read as subject to the unexpressed qualification that it was subject to s 9 of the Bill of Rights, and that the requirement to serve a sentence of 10 years and two months’ imprisonment without parole was disproportionately severe punishment.5 It substituted the order that the sentence was to be served without parole with the 40 per cent minimum period of imprisonment that the High Court had assessed. The Supreme Court subsequently declined leave to further appeal.6 The Three Strikes Legislation Repeal Act 2022 then repealed the relevant provisions with effect from 15 August 2022.

[3] The plaintiff’s new minimum term of imprisonment expired on 2 June 2020, prior to the Court of Appeal’s decision on 16 December 2021. The plaintiff was then promptly seen by the Parole Board on 14 January 2022, some 18 months after the end of his minimum term of imprisonment. He has since been seen again by the Parole Board on 19 January 2023 and 18 July 2023 but he has not been released on parole. He is next scheduled to be seen by the Board in December.

[4] In this proceeding he seeks declarations of inconsistency and an order that he be released from imprisonment or subject to a lesser sentence, or that he be awarded damages as a result of the infringement of his fundamental rights.

[5] For the reasons set out below I have reached the following conclusions…

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.

Continue reading Matara v Attorney-General

Details

AGLC: Matara v Attorney-General [2023] NZHC 2888
Case: [2023] NZHC 2888
Decision Date: 16 October 2023

CaseChat Overview and Summary

Billy Mark Matara, the applicant, initiated proceedings against the Attorney-General, the respondent, seeking declarations of inconsistency and compensation under the New Zealand Bill of Rights Act 1990 (NZBORA). Matara was sentenced to 10 years and two months' imprisonment without parole for attempted murder, a decision made under the three strikes regime. This regime, later reinterpreted by the Supreme Court in Fitzgerald v R, led to the Court of Appeal allowing Matara's sentence appeal, substituting the original sentence with a 40 per cent minimum period of imprisonment. The applicant sought declarations of inconsistency and orders for his release or lesser sentencing, or damages for infringement of his fundamental rights.

The court had to decide whether Matara's rights under the NZBORA were infringed, specifically under sections 9, 22, 25(a), and 19. Section 9 protects against cruel, degrading, or disproportionately severe treatment or punishment, while section 22 safeguards against arbitrary detention. Section 25(a) guarantees the right to a fair and public hearing by an independent and impartial court, and section 19 protects against discrimination. The court also considered whether declarations of inconsistency were relevant, given the reinterpretation of the relevant statutory provisions in light of the NZBORA.

The court dismissed Matara's claims, finding that no relevant question of inconsistency remained following the Supreme Court's reinterpretation of the relevant provisions in Fitzgerald. The court held that Matara's rights under section 9 of the NZBORA were not breached because the delay in considering parole did not cause a detention, and the delay was not sufficiently serious to infringe section 9. The court also found no breach of section 22, as the detention was not arbitrary. Regarding section 25(a), the court accepted that the initial sentence imposed without parole breached the right to sentencing by an independent court, but the breach was remedied on appeal. Finally, the court dismissed the claim under section 19, as the sentence was corrected on appeal, and no remaining breach was established.

In conclusion, the court dismissed Matara's claims, finding that his rights under the NZBORA were not infringed, and no further relief was required. The court emphasised the importance of ensuring that fundamental rights are respected and noted that awarding costs against the applicant might inhibit the bringing of such proceedings.

Orders