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Matara v R

Matara v R

Case [2021] NZCA 692 16 December 2021

Sentencing

Mens Rea & Intention

Proportionality

Constitutional Validity

Separation of Powers

Statutory Construction

Criminal Law

Sentencing Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA560/2019
[2021] NZCA 692

BETWEEN	BILLY MARK MATARA Appellant
AND	THE QUEEN Respondent

Hearing:	8 November 2021
Court:	Miller, Goddard and Katz JJ
Counsel:	A J Ellis for Appellant J E Mildenhall for Respondent
Judgment:	16 December 2021 at 2.00 pm

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal is allowed.
CThe sentence imposed in the High Court is set aside.
DMr Matara is sentenced to imprisonment for a term of 10 years and two months with a minimum period of imprisonment of 40 per cent.

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Table of contents

Para no

Introduction

Background

The offending
Mr Matara’s mental health at the time of the offending
Previous offending

High Court sentencing

Extension of time to appeal

Submissions for Mr Matara on appeal

Submissions for Crown on appeal

Discussion

The three strikes sentencing regime
Parole where three strikes regime does not apply
Previous decisions of this Court in relation to second strike sentencing
The Supreme Court decision in Fitzgerald
Implications of Fitzgerald for second strike sentencing
Is the sentence imposed on Mr Matara disproportionately severe?
Barnes adjustment not appropriate

The appropriate sentence in this case

Result

REASONS OF THE COURT

(Given by Goddard J)

Introduction

Mr Matara was convicted of attempted murder following trial at the Auckland High Court.[1] On 11 September 2017 he was sentenced by Courtney J to 10 years and two months’ imprisonment.[2] This was a “second strike” offence for the purposes of s 86C of the Sentencing Act 2002: in March 2012 Mr Matara had received a first warning under s 86B of the Sentencing Act following a conviction for aggravated robbery. Section 86C(4) of the Sentencing Act required the Judge to order that Mr Matara serve the full term of the sentence, and that he serve the sentence without parole.
[1]Crimes Act 1961, s 173(1): maximum sentence of 14 years’ imprisonment.
[2]R v Matara [2017] NZHC 2198 [Sentencing notes] at [18]–[19] and [22].
The Judge recorded, as required by s 86C(6), that but for the application of s 86C she would have ordered that Mr Matara serve a minimum period of imprisonment (MPI) of 40 per cent of the sentence imposed: that is, an MPI of four years and 24 days.[3]
[3]At [21].
Mr Matara sought leave to appeal to this Court out of time against both his conviction and his sentence. He subsequently abandoned his conviction appeal. The sentence appeal turns on the implications of the recent decision of the Supreme Court in relation to sentencing of third strike offenders in Fitzgerald v R for the sentencing of second strike offenders.[4]
[4]Fitzgerald v R [2021] NZSC 131.
As the Crown accepted, the Supreme Court decision in Fitzgerald establishes that the three strikes regime is not intended to prevail over s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). It follows that second strike sentencing must not be…

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 R

Details

AGLC: Matara v R [2021] NZCA 692
Case: [2021] NZCA 692
Decision Date: 16 December 2021 at 2.00 pm

CaseChat Overview and Summary

In Matara v R, the Court of Appeal of New Zealand granted an extension of time for Billy Mark Matara to appeal his conviction and sentence for attempted murder. Matara was convicted in the Auckland High Court and sentenced to 10 years and two months’ imprisonment, to be served without parole as a second strike offence under the Sentencing Act 2002. The appeal centred on the implications of the Supreme Court's decision in Fitzgerald v R for second strike sentencing. The Supreme Court had held that the three strikes sentencing regime must not prevail over the New Zealand Bill of Rights Act 1990 (NZBORA), particularly s 9, which protects against disproportionately severe punishment.

The Court of Appeal concluded that s 86C(4) of the Sentencing Act, which mandates that second strike sentences be served without parole, must be read subject to an unexpressed qualification that it is subject to s 9 of NZBORA. A non-parole order should not be made if it would result in a sentence inconsistent with s 9. The Court found that Matara’s sentence of 10 years and two months’ imprisonment to be served without parole was disproportionately severe and inconsistent with s 9, particularly given Matara’s mental illness and psychosis at the time of the offending. The Court set aside the sentence imposed in the High Court and sentenced Matara to 10 years and two months’ imprisonment with a minimum period of imprisonment of 40 per cent.

The Court granted an extension of time to appeal, allowed the appeal, and set aside the sentence imposed in the High Court. Matara was sentenced to imprisonment for a term of 10 years and two months with a minimum period of imprisonment of 40 per cent. The Court emphasised that it was not appropriate to set aside Matara’s conviction or impose a sentence equal to time served, as Matara was properly convicted of a serious offence and it could not be assumed that he would have qualified for parole when first eligible. The Court left the decision on parole to the Parole Board, ensuring the focus on community safety.

Orders