Matchitt v The Queen
[2019] NZHC 409
•12 March 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-463-000097 [2019] NZHC 409
BETWEEN LEONARD JACKSON MATCHITT
Appellant
AND
THE QUEEN
Respondent
Hearing: 25 February 2019 Appearances:
G Tomlinson for the Appellant O Salt for the Respondent
Judgment:
12 March 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 12 March 2019 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Gowing & Co Lawyers, Whakatane Pollett Legal Ltd, Tauranga
LEONARD JACKSON MATCHITT v R [2019] NZHC 409 [12 March 2019]
[1] The appellant, Mr Matchitt, pleaded guilty to four charges in the District Court at Opotiki on 20 September 2018:
(a)possession of methamphetamine for supply (some 2 grams);1
(b)possession of a utensil used for the consumption of methamphetamine (a glass pipe);2
(c)unlawful possession of a firearm (a .22 pistol);3 and
(d)receiving stolen property (valued at $10,000).4
[2] That same day, Judge Coyle sentenced Mr Matchitt to two years and one month’s imprisonment in relation to these charges.5
[3] The Judge also made a forfeiture order in relation to $963 discovered by Police at Mr Matchitt’s address. The District Court accepted this cash to be proceeds of the appellant’s drug dealing.
[4] Mr Matchitt appeals against his sentence only. He submits that the sentence of imprisonment imposed was manifestly excessive. This occurred, he submits, primarily because the District Court Judge failed to give proper regard to the totality principle.6 He says the sentence should be under two years’ imprisonment and a residential rehabilitation penalty would be the least restrictive outcome.
Background
[5] On 28 June 2018, Police executed a search warrant at Mr Matchitt’s address in Te Kaha. He had lived there with his partner and three children in a caravan for ten months at the time of his arrest. Previously he had been a serving prisoner. His
1 Misuse of Drugs Act 1975, ss 6(1)(f) and (2). Maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, ss 13(1)(a) and (3). Maximum penalty one year’s imprisonment and a fine of $500.
3 Arms Act 1983, s 45(1). Maximum penalty 4 years’ imprisonment and a fine of $5,000.
4 Crimes Act 1961, ss 246-247. Maximum penalty 7 years’ imprisonment.
5 Police v Matchitt [2018] NZDC 20033.
6 Sentencing Act 2002, s 85(2).
children are understood to be now living with other whānau members because of Mr Matchitt’s prior family violence offending.
[6] As soon as the Police arrived, Mr Matchitt told them he had a firearm and methamphetamine on the premises. The methamphetamine, pistol, and glass pipe to which the charges relate were retrieved from the caravan by Police during their search. Police also retrieved the $963 in cash that has been forfeited to the Crown.
[7] Mr Matchitt freely admitted to Police at the time of the search that he uses methamphetamine and deals in small amounts of the drug to sustain his habit. Regarding the firearm, he told Police that he had recently obtained it for protection while drug dealing.
[8] The Police also found a Ford Courier Ute on the premises. It was parked immediately outside Mr Matchitt’s dwelling. The vehicle had been stolen from Hastings on the night of 27 April 2018. Mr Matchitt refused to tell Police how he had obtained the vehicle. He said only that, in the Mongrel Mob (of which he is a member) “things just come to you”.
[9] At the time of the present offending, Mr Matchitt had 57 previous convictions. Of these, 11 related to breach of bail or release conditions, 11 were for property offences, 10 for the possession or cultivation of cannabis, 16 for threatening or violent type behaviour, seven for driving offences, and two for weapons charges. These include charges for family violence and breach of protection orders. Offending while on bail included cultivation of cannabis. The present offending represents the appellant’s first convictions for methamphetamine supply and possession.
[10] By his own admission, Mr Matchitt has an expensive drug habit, which has escalated recently to involve the use and supply of methamphetamine. He is a long- standing member of the Mongrel Mob. He has expressed the sentiment that, now aged 45, he wishes to put offending behind him and concentrate on family life.
[11] Mr Matchitt reported to the probation officer that he accepts responsibility for his offending. He also apparently expresses willingness to seek drug and alcohol
counselling, including residential treatment, and identifies his drug and alcohol use as a factor in his other offending. Yet, he has declined to attend a Corrections Department programme while remanded in custody. The report-writer’s view is that Mr Matchitt’s current expressions of remorse are motivated only by a desire to avoid incarceration.
District Court decision
[12] Judge Coyle positioned Mr Matchitt’s offending firmly in the context of his drug dealing. Noting the wider “scourge of methamphetamine”7 in the New Zealand community, the Judge took the view that it was necessary to strongly denounce and deter dealing in methamphetamine because of the social harm caused by the drug and its highly addictive nature. Relatedly, the Judge regarded holding Mr Matchitt accountable and instilling in him a sense of responsibility as highly important.
[13] Judge Coyle placed the present offending in band one of R v Fatu, being a small supply not of a truly commercial nature undertaken principally to support the supplier’s own habit.8
[14] The Judge emphasised, however, that all drug dealing has a necessarily commercial nature, however small its scale.9 His Honour took the view that all drug dealers, including Mr Matchitt, are culpable for having decided to profit from “peddling this scourge on society”.10
[15] The Judge considered three cases involving methamphetamine possessed for supply. The Judge recorded that in one, R v Henare, a four-year starting point was adopted for possession of 18 grams,11 and in another, R v Waiti, two years for a slightly greater quantum than here.12 In the third, R v Singh, the Judge said that there was four grams of methamphetamine and a starting point of three years was upheld on appeal.13 These cases are not accurately recorded. I return to this later.
7 Police v Matchitt [2018] NZDC 20033 at [5].
8 R v Fatu [2006] 2 NZLR 72 (CA).
9 Applying Vesetalu v Police HC Auckland CRI-2009-404-213, 18 August 2009.
10 Police v Matchitt [2018] NZDC 20033 at [13].
11 R v Henare HC Dunedin CRI-2010-012-3510, CRI-2010-012-4217, 28 October 2010.
12 R v Waiti [2016] NZHC 1700.
13 R v Singh HC Rotorua CRI-20016-070-7259, 17 July 2008.
[16] Judge Coyle fixed a starting point of 20 months’ imprisonment in relation to the possession for supply charge.
[17] Regarding the firearm charge, the Judge noted a High Court decision that unlawful possession of firearms should inevitably result in imprisonment when coupled with other criminal offending.14 He also referred to the Court of Appeal approving an uplift of between 12 and 18 months for unlawful firearms possession where drugs offending is included, citing R v Fonotia.15 The Judge considered an uplift of twelve months’ imprisonment appropriate, producing a starting point of 32 months’ imprisonment.
[18] Judge Coyle considered the receiving charge to be distinct offending, in the absence of an explanation from Mr Matchitt as to how he obtained the vehicle, which may have placed the receiving in the context of his drug dealing. His Honour therefore considered a further uplift of six months’ imprisonment, to 38 months, to be appropriate.
[19] Judge Coyle did not accept Mr Matchitt’s statements that he is ready to put his offending behind him and was especially sceptical of his statements that he could best do so outside of prison. The Judge was of the view that Mr Matchitt’s best chance of rehabilitation is to have access to Corrections programmes. His Honour concluded that the best indicator of future behaviour is past actions,16 and that nothing had yet shown Mr Matchitt’s remorse or desire to reform to be genuine. No discount was allowed for remorse.
[20] The Judge gave a three-month discount for Mr Matchitt’s having co-operated with Police at the time of the search. This produced a sentence of 35 months’ imprisonment. He then applied a guilty plea discount of 25 per cent, which he rounded up to nine months. This produced an end sentence of two years and two months’ imprisonment. His Honour then imposed a sentence of two years and one month’s
14 Karetu v Police [2012] NZHC 2370, citing R v Corner CA291/87, 17 March 1988.
15 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.
16 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
imprisonment, which I assume to be an erroneous transposition, the previous paragraph having recorded his concluding sentence of two years, two months.
[21] The Judge imposed concurrent sentences of 12 months’ imprisonment for the unlawful possession of the pistol, one month’s imprisonment for possession of the pipe, and six months’ imprisonment for the receiving.
[22] Judge Coyle noted that the final sentence was just outside the home detention range. However, his Honour also concluded a community-based sentence would have been inappropriate in any case. This was because of Mr Matchitt’s extensive prior disregard for release and bail conditions and drug related offending while on bail.
Submissions for appellant
[23] Initially, the appeal was broader, but in oral submissions, Mr Nabney, for the appellant accepted that the starting point for the methamphetamine charges was within range. He also accepted that the receiving charge was properly taken as a separate event and the uplift in respect of that was appropriate.
[24] Mr Nabney submits that the uplift for the firearms charge was arguably excessive and, in any event, the final sentence is not proportionate to the overall gravity of the offending.
[25] Mr Nabney also says Judge Coyle focused too heavily on deterrence in identifying the applicable principles and purposes of sentencing.
[26] He submits that, if the above submissions are accepted, the appropriate end sentence is one that allows for home detention to be imposed,17 and that this is the least restrictive outcome appropriate to the overall offending.18
17 Sentencing Act 2002, s 15A(1)(b) and Parole Act 2002, s 4(1).
18 Sentencing Act 2002, ss 8(g), 10A and 15A(1)(a).
Approach on appeal
[27] Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.19
[28] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.20 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.21
[29] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.22 The focus is on the end result, rather than the process by which the sentence was reached.23
[30] In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).24 In any other case, the Court must dismiss the appeal.25
Analysis
[31] As I have already said, Mr Tomlinson accepted that the starting point for the drug offending was within the range of other cases. I have nonetheless turned my mind to this point, having appreciated since the hearing that Judge Coyle’s descriptions of the cases are in error and two of the cases he refers to are not at all comparable.
[32] In fact, Singh involved 42.9 grams of methamphetamine (found in three separate places) and fell firmly into band 2 of Fatu. Also, in Henare, although it involved only approximately three grams of methamphetamine26 and possession of
19 Criminal Procedure Act 2011, s 250(2).
20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
21 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].
22 Tutakangahau v R, at [36].
23 At [36].
24 At [36].
25 Criminal Procedure Act 2011, s 250(3).
26 The exact amount is not specified in the case; it seems to be slightly less than three grams.
methamphetamine utensils, the charge to which Mr Henare had pleaded guilty was manufacturing methamphetamine. The Judge accepted there was no evidence of any commercial purpose and adopted a starting point of three years. Waiti involved seven grams, which placed the offending just into band 2 (5 to 250 grams), but Fogarty J exercised his discretion to treat it as band one. Fogarty J said a starting point of two to two-and-a-half years’ imprisonment would be appropriate, but ultimately fixed a sentence of community detention, it seems largely out of concern for Ms Waiti’s children.
[33]Neither Singh nor Henare are at all comparable to the present.
[34] However, having considered Waiti and the cases cited by Fogarty J, which involve slightly worse offending than the present, but which all had markedly higher starting points, I am satisfied the starting point here was well within range.
[35] The uplift for the firearms charge is arguably too high. First, I do not read the Court of Appeal in R v Fonotia as approving an uplift of 12-18 months generally for firearms offending where drug offending is involved, as Judge Coyle puts it. The Court in R v Fonotia set a starting point for serious drug dealing of five years; noted that the starting point for “gun offending” on its own is two years relying on R v McDonald,27 and said the uplift could not be less than 15 months to reflect that offending. That case was further complicated by there being four weapons (a loaded shotgun, loaded Beretta pistol, tubular stun gun and Blizzard spray), but erroneously only one charge laid.
[36] I appreciate that the Court of Appeal has clearly said that the use of firearms in connection with drug dealing is to be strongly deterred.28 However, the uplift here is not much lower than in Fonotia. Also, the same uplift has been imposed here as in R v Singh, which involved significantly more dangerous unlawful possession and use of firearms in the context of drug dealing. The gravity of the offending is quite distinct.
27 R v McDonald [2000] BCL 862 (CA).
28 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40].
[37] I note that here, unlike in Fonotia and in Singh, there is no suggestion that the gun was loaded, nor is there evidence of ammunition being on the premises.
[38] In my view, the uplift for the arms offending could have been more in the realm of nine months’ imprisonment. That alone would not lead to a manifestly excessive sentence, but it would impact on the availability of home detention to which I return.
[39] For completeness, I note that the three-month discount afforded to Mr Matchitt by the Judge for his co-operation with the Police is reasonable and analogous to that given to Mr Henare for similar co-operation. In fact, given Mr Matchitt’s complete lack of co-operation regarding the receiving charge, the discount was generous.
[40] As to totality, the Judge did not refer to this principle at the end of his judgment, but he did not need to. I accept the Crown submission that he applied it throughout the sentencing. In other words, he was mindful of the overall impact of the various steps in his sentencing. The Judge makes a number of statements that might suggest he is taking an overly-harsh and punitive view, given this is band one drug offending, but in terms of his actual sentencing, I consider, subject only to the point regarding the firearms uplift, each of his allowances is fair and the end result is fair.
[41] If I were to deduct three months from the final sentence to provide for a lower uplift for the firearms offending, it would bring Mr Matchitt within the short-term sentence range and would allow for the substitution of a sentence of home detention. Although the difference in sentence is relatively minor, where that difference opens up the realistic possibility of home detention, it can lead to the sentence being found to be manifestly excessive.29
[42] However, I agree with Judge Coyle’s assessment with regard to the suitability of home detention. I consider he was correct to accept Correction’s assessment of Mr Matchitt as having low prospects of rehabilitation and a high risk of recidivism. Mr Nabney points to a low risk of recidivism regarding the receiving charge, as Mr Matchitt has not had previous dishonesty offences, or at least not in the last six years. Mr Matchitt was convicted of a receiving charge in 2012 and of shoplifting
29 Kane v Police [2012] NZHC 209 at [43].
in 2003. However, even that argument is countered by Mr Matchitt’s own statement as to the way things “just come to” Mongrel Mob members.
[43] While I agree that Mr Matchitt’s refusal to engage with Corrections programmes while previously in custody is also relevant in that it belies his expressed desire to address the causes of his offending, I would have some caution around that. People like Mr Matchitt often do struggle with the form or format of drug rehabilitation courses. More significantly though, as the Judge said, Mr Matchitt has previously and repeatedly disregarded release conditions and Court orders, including shortly before the present convictions were entered. He has a history of family violence related, by his own admission, to his drug and alcohol use.
[44] It is also very material that associated with his drug offending is possession of the firearm. I agree with the Court of Appeal that would not generally be a case where home detention would be appropriate.
[45] I therefore accept the force in Judge Coyle’s reasoning that the rehabilitative purposes of sentencing can best be promoted here by imposing a custodial sentence and affording Mr Matchitt the opportunities Corrections programmes can provide. Hopefully a programme can be found, or adapted, to which he can relate.
[46] For these reasons, I am persuaded Judge Coyle was correct to find that Mr Matchitt would not be a suitable candidate for the imposition of home detention as opposed to a custodial sentence.
[47] The difference of three months alone in the uplift for the firearms charge would not lead to the sentence imposed being manifestly excessive.
Result
[48]The appeal is therefore dismissed.
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Hinton J
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