Matchitt v Police
[2023] NZHC 1745
•5 July 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2023-443-15
[2023] NZHC 1745
BETWEEN KINGI FLOYD MATCHITT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 July 2023 Counsel:
N Bourke for the Appellant
H Bullock for the Respondent
Judgment:
5 July 2023
JUDGMENT OF GWYN J
Introduction
[1] The appellant, Kingi Matchitt, appeals his sentence1 of 25 months’ imprisonment in respect of two charges of burglary2 and one charge of theft3 against three victims in three separate incidents.
[2]Mr Matchitt pleaded guilty to all charges.
[3] The appellant has 35 previous convictions, the most serious being a burglary conviction for which he was sentenced to three years’ imprisonment. He has 15 previous convictions for burglary, seven previous convictions for shoplifting and three previous convictions for theft, although I note they are not recent convictions.
1 New Zealand Police v Matchitt [2023] NZDC 102320.
2 Crimes Act 1961, s 231(1)(a). The maximum sentence is 10 years’ imprisonment.
3 Sections 219 and 223(d). The maximum sentence is three months’ imprisonment.
MATCHITT v NEW ZEALAND POLICE [2023] NZHC 1745 [5 July 2023]
The offending
27 September 2022
[4] The offending leading to the theft charge and the first burglary charge occurred on 27 September 2022, at two separate addresses.
[5] At approximately 9.16 am the first victim was operating his business from his home in Murrays Bay, Auckland. The appellant drove onto the victim’s driveway and entered the victim’s shop. The appellant asked whether the victim sold jewellery or any other luxury items and the victim responded no, explaining that he only sells products relating to pets. The appellant asked for 15 dog harnesses. When the victim was retrieving the harnesses from the back of his shop, the appellant went to the front of the house and peered through a window before returning to the shop to check that the victim was still occupied, and then running to the front door. At the front door, the defendant grabbed a pair of Adidas Yeezy shoes, valued at $370, and put the shoes in his pants before walking back to his vehicle and driving away. The appellant was under the influence of cannabis at the time.
[6] Between 11.15 am and 11.41 am on the same day, the second victims’ address in Sunnynook, Auckland was burgled. The couple who lived in the house arrived home at 12.25 pm to find their property scattered around the house and a high-vis jacket in the lounge that neither victim owned. The appellant’s DNA was identified on the jacket. The appellant was identified on CCTV footage moving to and from the victims’ property, carrying several items out of the property on each occasion. The footage showed the appellant arriving in a high-vis vest and then leaving without one. The items stolen from the victims’ property had a combined value of $62,080. They included nine designer handbags, 10 pairs of designer shoes and one designer scarf. The appellant traded the stolen goods for cash and cannabis.
[7] The victims of the Sunnynook burglary provided victim impact statements to the Police on 22 May 2023. One of the victims said she has suffered extremely serious financial loss and trauma as a result of the burglary, culminating in suicidal thoughts.
28 January 2023
[8]The second burglary occurred on 28 January 2023.
[9] The appellant entered the Cinema Express Bar and Café in New Plymouth at 9 pm. The appellant went into the staff-only area and removed a package containing
$20,000 of cash from an open safe in the victim’s office before leaving the premises with the package. The appellant had not smoked cannabis on this day. He explained that when he was looking for a bathroom, he happened across the staff-only area, found the safe which was unlocked, and a demon told him to take the cash.
[10] The victim provided a victim impact statement on 2 May 2023. He explained that the burglary has caused him profound stress and anxiety and as a result of the burglary he has been unable to pay his tax bill, which is now accruing interest.
Procedural history
[11] On 23 March 2023 the District Court granted Mr Matchitt electronically monitored (EM) bail. He has remained on EM bail since this date.
[12] On 23 May 2023 Judge Harrison in the New Plymouth District Court sentenced Mr Matchitt to 25 months’ imprisonment in respect of the two charges of burglary and one charge of theft.
[13] The Judge adopted a starting point of three years and seven months’ imprisonment, comprising three years and six months for the two burglary charges with a one-month uplift for the theft charge. The starting point reflected Mr Matchitt’s previous convictions for burglary and other offending involving dishonesty.
[14] The Judge applied a 25 per cent discount for Mr Matchitt pleading guilty to all charges and a 10 per cent discount for his remorse, successful participation in restorative justice and for cooperation with the Police. The Judge gave a further discount of one month for Mr Matchitt’s $5,000 reparation payment and one month for the time he spent on electronically monitored (EM) bail pending sentencing.
[15] The Judge did not apply any discount for background factors as detailed in the cultural report filed under s 27 of the Sentencing Act 2002 and the Department of Corrections’ Provision of Advice to Courts (PAC) report. The Judge considered the background factors did not provide a causative contribution to the appellant stealing the goods and cash.
[16]The end sentence was 25 months’ imprisonment.
[17] The Judge said, obiter, that she would not have converted the sentence to home detention even if the end sentence had been 24 months, saying “… it is inconceivable that you would be granted home detention in these circumstances.”4 The Judge formed this view because of her assessment that the appellant’s employment, health condition and support from his partner and her family had not been protective factors against the offending. The Court also had regard to the negative impact of the offending on the victims.
Submissions
For the appellant
[18] Mr Bourke, for the appellant, accepts the starting point, but submits that the District Court should have arrived at an end sentence of two years’ imprisonment or less and then converted the sentence to one of home detention.
[19] The 25 per cent discount applied for the appellant’s guilty plea, was the maximum discount available. The appellant accepts the 10 per cent discount for his remorse, although counsel notes this discount was the very least available when reflecting on the additional fact that the appellant handed himself into the Police and confessed to his offending.
[20] The appellant submits the Judge largely dismissed the background factors raised in the cultural report and declined to discount the sentence in response to the report. The matters raised in the report include parental incarceration, family violence, exposure to and normalisation of crime from an early age, and drug dependence from
4 New Zealand Police v Matchitt, above n 1, at [37].
a young age. In the appellant’s submission, relying on Berkland v R,5 his background factors made a causative contribution to his offending as they explain how he came to offend. Therefore, the Judge erred in declining to discount the sentence in respect of the cultural report.
[21]The appellant further submits that the one-month discount —approximately
2.3 per cent of the sentence — that the Judge applied for the appellant paying reparation6 was manifestly inadequate. The appellant offered to pay $5,000 as a lump sum (Mr Bourke advised that Mr Matchitt has now accumulated $6,000) and undertook to pay an additional $200 per week if he worked while serving a sentence of home detention. With the orthodox limit of five years on such reparation payments, the appellant would pay a total of $57,000 as reparation. As Mr Bourke emphasised, that is a very significant amount for a person in manual work. Counsel refers to Manukailea v Police where a $10,000 reparation payment resulted in a 15 per cent discount.7
[22] The appellant accepts the one-month discount that the Judge applied to recognise the appellant had been on EM bail for approximately two months. However, while awaiting the determination of this appeal, the appellant has spent a further six weeks on EM bail without incident. Counsel submits a further one-month discount should be applied to reflect this additional time spent on bail.
[23] Counsel submits the Judge erred by failing to have regard to the need to impose the least restrictive outcome appropriate in the circumstances. Counsel notes imprisonment is the most restrictive outcome in sentencing and refers to the obiter comments of the Judge that she would not have entered a sentence of home detention even if the eligibility threshold was reached.
[24] Counsel refers to four previous similar cases where the High Court converted sentences for burglary to home detention on appeal.8
5 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
6 Sentencing Act 2002, ss 9(2)(f), 10 and 7(1)(d).
7 Manukailea v Police [2014] NZHC 2647.
8 Barbour v New Zealand Police [2020] NZHC 2707; Tafere v New Zealand Police [2020] NZHC 3303; Taukiri v New Zealand Police [2021] NZHC 3103; and Ware v New Zealand Police [2021] NZHC 3320.
For the respondent
[25] Ms Bullock, for the respondent, submits the Court should dismiss the appeal because the sentence was not manifestly excessive and home detention would not be appropriate, irrespective of the length of the end sentence.
[26] Counsel draws the Court’s attention to a mathematical error in the end sentence. The Judge adopted a starting point of three years and six months’ imprisonment for the burglary charges, uplifted by one month for the theft: a total of 43 months’ imprisonment. The Judge applied discounts totalling 35 per cent, bringing the sentence down to 28 months. Then the Judge discounted a further two months, giving an end sentence of 25 months’ imprisonment. The respondent submits the end sentence should have been 26 months if the discounts were correctly applied.
[27] The respondent submits the Judge correctly found that the appellant’s background factors as described in the s 27 report are not proximate causes of the offending in this case. Rather, the respondent notes that the cultural report says the appellant met his partner after his last release from prison and this relationship has helped him to turn his life around.
[28] The respondent notes the total discount applied for remorse, the offer to pay reparation and the participation in restorative justice amounted to about 12 per cent. There is no discernible error, in the respondent’s view, with this discount.
[29] The respondent further submits that the Judge correctly considered the principles of sentencing and correctly reached a conclusion that she would not have converted the sentence to home detention even if the end sentence was a short sentence of imprisonment.
[30] The one-month discount for time spent on EM bail is within range. Discounts of this nature tend to fall within 30 and 50 per cent of the time spent on EM bail.9 Therefore the respondent submits that a further one-month discount would be too high
9 Paora (CA319/2020) v R [2021] NZCA 559 at [53]; and Parata (CA344/2016) v R [2017] NZCA
48 at [12] and [15].
because a total two-month discount is more than 50 per cent of the three-and-a-half months on EM bail.
Relevant law
[31] An appeal against sentence is an appeal against the Judge’s discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[32] Despite the statute making no express reference to “manifestly excessive”, this principle is well-established in the court’s approach to sentence appeals.10 An appeal court must not tinker with the end sentence if the end sentence is within range.11 The focus is more upon the end sentence than the process by which the Judge reached that end sentence.
[33] In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing.12
[34] The first step requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency with similar offending.
[35] At the second step the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount. The end sentence should reflect the totality of the offending and, barring other considerations, be the least restrictive outcome that is appropriate in the circumstances.
10 Ripia v R [2011] NZCA 101 at [15].
11 At [15].
12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
Analysis
Sentencing test: stage one
[36] Both parties accept the starting point of three years and seven months’ imprisonment. This starting point reflects the recidivist nature of the burglaries,13 the location of one of the burglaries being a residential property14 and the value of the stolen goods.15
Sentencing test: stage two
[37]In my view, there are no aggravating factors. There are mitigating features.
Cultural report
[38] The first mitigating factor is the appellant’s background. In my view, the Judge erred in declining to discount the appellant’s sentence in respect of the background factors detailed in his cultural report and PAC reports. These reports say Mr Matchitt was born to a 15-year-old mother and was predominantly raised by his mother as his father regularly spent time incarcerated. His father was a member of the Mongrel Mob but Mr Matchitt himself is not a gang member. He experienced an impoverished childhood, one of five children, and started stealing from shops when he was in primary school. During his teenage years he regularly drank alcohol, smoked cannabis and committed burglaries. He stopped smoking cannabis and drinking alcohol with the help of his partner who he met shortly after an imprisonment sentence, in 2014. His job at the Hāwera meatworks has also provided stability in his life and helped him to avoid antisocial influences. However, in 2022, the appellant relapsed into the behaviours from his lifestyle he had changed approximately eight years earlier. The present offending occurred when Mr Matchitt met with former associates in Auckland and slipped back into the patterns from his earlier years.
13 The District Court cited Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; and Senior v Police
(2000) 18 CRNZ 340 (HC).
14 The District Court cited Wardle v R [2015] NZHC 915; Harrison v R [2011] NZCA 80; and Marsh v R [2010] NZCA 445.
15 The District Court cited R v McAllister (2001) 18 CRNZ 606 (CA); Burton v R [2018] NZCA 355; Wishnowsky v Police HC Palmerston North CRI-2009-454-000026, 4 August 2009; and Hamilton v Police [2016] NZHC 938.
[39] The Supreme Court in Berkland v R said that where background was an “operative” or proximate” cause of the offending it is likely to be a “potent” sentencing factor.16 The Court went on to say however that requiring operative or proximate cause in every case sets the bar too high:17
[40]The Court said:18
… We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.
[41] As the Supreme Court made clear, although “causative contribution” is a lower standard than operative or proximate cause, it must still be satisfied.19
[42] I therefore go on to consider whether the background factors as set out in the cultural and PAC reports do provide logical explanation, at least in part, for Mr Matchitt’s offending. In my view, the appellant’s offending cannot be divorced from his history of economic deprivation and substance addictions. As the cultural report observes, many studies suggest that parental incarceration during childhood increases the child’s risk of adult criminality and parental detachment is linked to criminal behaviour during childhood and adolescence. The report suggests Mr Matchitt’s offending is linked to intergenerational offending, given his father’s incarceration and the limited attachment he had to his mother. He grew up in an environment where crime was normalised and normal in response to hardship. He
16 Berkland v R, above n 5, at [108].
17 At [109].
18 At [109] (footnotes and citations omitted).
19 At [110]
learned to offend as a survival skill. As the report notes, research indicates that substance use is greater among people whose family members have histories of drug abuse.
[43] Mr Matchitt’s impoverished upbringing made a causative contribution to his early offending — financial instability provides a logical explanation for Mr Matchitt stealing. Moreover, the appellant had exposure to substance abuse and dependence at a young age, which continued throughout his formative years. Consumption of cannabis and alcohol are common features in his offending.
The appellant had demonstrated a commitment to living a sober and law-abiding life, supported by his partner and her family, for some years before the present offending. However, it goes without saying that recovery and rehabilitation is not a linear path. The present offending appears to have occurred during the appellant relapsing into the substance abuse patterns of his past, and this relapse finds a logical explanation in the substance abuse and early substance exposures, which the cultural and PAC reports address.
Rehabilitation
[44] Before the District Court hearing, the appellant was referred to Four Waitara, a Taranaki-based service under the Te Whatu Ora umbrella, for treatment of his drug and alcohol addictions. At the time of the District Court proceeding, he was receiving ongoing counselling.20
[45] In my view, a 10 per cent discount is appropriate to apply in respect of the background factors addressed in the s 27 report and Mr Matchitt’s steps towards rehabilitation.
Reparation
[46] I agree with Mr Matchitt’s counsel that the one-month discount for reparation is a niggardly figure, given his health and earning capacity and the significant amount
20 New Zealand Police v Matchitt, above n 1, at [17].
proposed to be paid. But having regard to the other discounts, and the totality of the sentence, I do not propose to increase that discount.
Error in calculation
[47] I note the Crown’s submission that the Judge made a mathematical error in calculating the sentence, applying a one-month discount to 28 months and arriving at 26 months. The further one-month discount took the sentence down to 25 months. Mathematical errors that favour the defendant cannot be corrected on appeal unless that error has resulted in a manifestly inadequate sentence. The error here does not meet that standard. I would not increase the appellant’s sentence on appeal in these circumstances.
Time on EM bail
[48] I accept the respondent’s submission that the one-month discount for the time spent on EM bail pending sentencing is within range. I will not apply an additional discount for time spent on EM bail pending the disposition of this appeal.
Sentence calculation
[49] I accept the starting point, three years and seven months’ imprisonment, applied in the District Court.21
[50] I accept all existing discounts the District Court applied. Namely, 35 per cent and two months.
[51] As I found above, I will not correct the minor mathematical error made in the sentence calculation in the District Court. Those discounts lead to a term of 25 months’ imprisonment.
[52] I then apply a further 10 per cent discount, having considered the mitigating background factors and the prospects of rehabilitation. The end sentence is then 21 months imprisonment, rounded to the nearest whole month. One month of the 21
21 At [30].
months’ imprisonment applies in respect of the theft charge; 10 months’ imprisonment apply in respect of each of the two burglary charges
Suitability for home detention
[53] The eligibility threshold for home detention is 24 months’ imprisonment. Therefore, with the adjusted sentence, Mr Matchitt is eligible to have his sentence converted to home detention. I go on to consider Mr Matchitt’s suitability for home detention.
[54] The critical factor in this assessment is that the Court must not impose a sentence of imprisonment unless the purposes of sentencing22 could only be achieved by that custodial sentence.23 The High Court summarised the additional factors relevant to the Court’s assessment when deciding between a sentence of imprisonment or home detention in Brittin v New Zealand Police:24
(a)Imprisonment is a measure of last resort.
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)When considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.
22 Sentencing Act, s 7.
23 Section 16(2)(b).
24 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).
(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[55] With respect to Mr Matchitt’s appeal, my assessment of the balance of the s 16 factors supports a sentence of home detention. Mr Matchitt’s rehabilitation will be best served in a prosocial environment. At home he has the prosocial support and influence of his partner and her family. I do not consider that imprisonment would provide comparable, prosocial support. Whilst serving a sentence of home detention, Mr Matchitt has access to substance abuse counselling, which will better meet his rehabilitation needs and keep him in the community. I have received a letter from the alcohol and drug counselling service which has been working with Mr Matchitt. That letter expresses the opinion that, if Mr Matchett continues to engage with the service and implement the strategies he is learning there, his prognosis for the future will be very positive.
[56] The PAC report notes that Mr Matchitt has health issues which would receive the best treatment if he served a non-custodial sentence. Mr Matchitt has previously had a bleed on his brain stem which increases his risk of haemorrhage in his brain by two per cent each year. I agree that a sentence of home detention would better assist in managing Mr Matchitt’s health.
[57] I am conscious of the need to protect public safety, but I note the offending was not violent and, in any event, I consider the conditions of home detention will sufficiently mitigate any risk to the community that Mr Matchitt might reoffend. Although home detention is the least restrictive sentencing option available in this case, there is no doubt that home detention is itself a severe sentence which, in my view, will contribute to the deterrence and denunciation purposes of sentencing.
[58] Also relevant is the Supreme Court’s comment in R v Berkland, where it said “… background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community-based sentence.”25 In Mr Matchitt’s
25 Berkland v R, above n 5, at [112].
case, the District Court imposed a sentence just one month over the eligibility threshold for a non-custodial sentence of home detention. This case is plainly one which can be characterised as being at the margin between imprisonment and a community-based sentence.
[59] At the time of this sentence appeal, Mr Matchitt has been on bail for approximately three-and-a-half months. The Court is not aware of any compliance issues during this time, which gives me confidence that Mr Matchitt would comply with the conditions of a home detention sentence. Further, the appellant’s Hāwera address is an approximately six-hour drive away from his antisocial associates in Auckland. I consider this distance will help to mitigate the risk of the appellant reoffending.
[60] The PAC report recommended that Mr Matchitt receive a non-custodial sentence due to the gap in his offending, the supportive prosocial environment that his partner and her family provide, stable employment and upcoming medical appointments. The report assessed the appellant’s risk of reoffending as medium to high. The report recommended home detention to be served at his Hāwera address, which was assessed as technically suitable.
[61] I consider the purposes of sentencing can be met by a sentence of home detention and it is not necessary to impose the measure of last resort, imprisonment.
[62] The PAC report recommended the following conditions if a sentence of home detention were imposed:
(a)Not to possess, consume or use any alcohol or drugs not prescribed to you.
(b)To attend an assessment for Short Rehabilitative Programme or equivalent as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(c)Not to communicate in any way or associate with previous co-offenders or antisocial peers, without the prior written approval of a Probation Officer.
(d)To attend and complete an appropriate Alcohol and Drug Education or Counselling to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
[63] The appellant has offered to pay $200 per week as reparation. Although Mr Matchitt offered to pay this amount until the debt of his burglaries is repaid, it would take seven years to repay26 the debt and the Court is limited to ordering ongoing reparation payments for five years.
[64] Having regard to the amount of the loss to the victims and Mr Matchitt’s health and earning capacity, I would impose a condition that (subject to his health and continued employment) he repay to the victims a total of $25,000. As I have already indicated Mr Matchitt has accumulated $6,000 which he can pay immediately.
[65] The duration of a home detention sentence is generally half of the custodial sentence that otherwise would have been imposed.27 Although this general proposition does not apply to every case,28 I consider it appropriate to apply it to the appellant’s sentence. Half of 21 months and two weeks is 10.5 months, which is 11 months rounded to the nearest whole month.
[66] Mr Matchitt will spend a total of 11 months on home detention, in respect of all three charges.
Conclusion
[67]The appeal is allowed.
26 New Zealand Police v Matchitt, above n 1, at [20].
27 Brittin v New Zealand Police, above n 24, at [59].
28 Metua v R [2018] NZHC 246 at [27].
Result
[68] The appellant’s sentence is substituted for a sentence of 11 months’ home detention to be served at his Hāwera address. The sentence of home detention is to commence on 6 July 2023.
[69] The conditions listed in [62] above apply, together with an additional condition that he pay a total of $25,000 in reparation to the Sunnynook and New Plymouth burglary victims, pro-rated across the value of the goods and the cash. That sum is to be paid by way of initial lump sum of $6,000 and then at the rate of $200 per week, subject to Mr Matchitt’s health and continuing employment.
Gwyn J
Solicitors:
Crown Solicitor, New Plymouth
16
0