Mate v The King
[2023] NZHC 2575
•22 September 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-063
CRI-2023-412-064 [2023] NZHC 2575
BETWEEN HIRINI SIDNEY MATE
Appellant
AND
THE KING
Respondent
Hearing: 14 September 2023 Appearances:
A L Pinnock for Appellant R D Smith for Respondent
Judgment:
22 September 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 22 September 2023 at 3.00 pm
Registrar/Deputy Registrar Date:
Solicitors:
Crown Solicitor, Dunedin
HIRINI SIDNEY MATE v R [2023] NZHC 2575 [22 September 2023]
[1] The appellant, Hirini Mate, appeals his sentence of four years 10 months’ imprisonment imposed by Judge Turner on 20 July 20231 in respect of charges arising from two separate incidents; namely charges of injuring with intent to cause grievous bodily harm2 and of threatening to kill3 which arose on 16 November 2022, and further charges of assault on a person in a family relationship4 and wilful damage5 which arose previously on 26 September 2022.
[2] Under s 250(2) of the Criminal Procedure Act 2011, this Court must allow the appeal if satisfied that there was an error in the sentence imposed and a different sentence should be imposed, otherwise the appeal must be dismissed.
[3] It is well settled that an appeal court should not intervene when a sentence is within the available range that can properly be justified by accepted sentencing principles.6 The appeal court should, however, substitute its own view if the sentence under appeal is “manifestly excessive” or one that cannot be justified on the application of relevant sentencing principles.7
[4] The appellant contends that the sentence is manifestly excessive because the Judge identified a starting point which was too high and inadequate discounts were allowed for mitigating factors.
Facts
[5] Mr Mate and the victim had been in a relationship but separated towards the end of October 2022, after he had been charged with the September 2022 offending.
[6] On 16 November 2022, Mr Mate called and messaged the victim asking to come to her home. She refused permission which resulted in his messages turning abusive and threatening. At about 2 pm, while she was having a shower, Mr Mate
1 R v Mate [2023] NZDC 14920.
2 Crimes Act 1961, s 189(1); maximum sentence 10 years’ imprisonment.
3 Crimes Act, s 306; maximum penalty seven years’ imprisonment.
4 Crimes Act, s 194A; maximum penalty two years’ imprisonment.
5 Summary Offences Act 1981, s 11; maximum penalty three months’ imprisonment.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
entered her home and then the bathroom. Another person at the address had allowed him entry.
[7] When the victim saw him, Mr Mate was told to leave immediately. He refused, became angered by the presence of a male in the house and verbally abused both the victim and the visitor. He grabbed a boning knife from the kitchen bench and held it towards the victim, repeatedly stating he would kill her. The visitor was able to escape, leaving the victim alone with Mr Mate. After dropping the knife, Mr Mate approached the victim and punched her in the face. This knocked her onto a couch. He then leant over the prone victim and repeatedly punched her to the head and face. He also kicked her four to five times to her head. When the attack ceased, he fled from the address.
[8] The victim called police and was taken to hospital. While in hospital, Mr Mate attempted to contact her on multiple occasions. During one call he said, “oh you are still alive, shall I come and finish you off?”.
[9] The victim suffered a fracture to her left eye socket, multiple fractures to her nose, and required stitches around her left eye and cheek. She had multiple cuts, grazes and bruises. Surgery is required to repair the damage to her nose. In the victim impact statement, the victim refers to the psychological impact of the offending on her.
[10] Prior to the November 2022 offending, on 26 September 2022, a police safety order was issued against Mr Mate in favour of the victim. Later that day, at about 4 pm and in breach of the police safety order, Mr Mate went to the victim’s address. She refused to allow him entry. While at the address Mr Mate saw an unknown male at the property and became agitated. He smashed a large kitchen window and broke a ranch-slider window before entering the home. On doing so, he threw a pot-plant into the lounge and punched the victim at least once to the face, causing her to fall to the floor. He then left the address. The victim received a split lip but declined medical attention.
[11] When spoken to, Mr Mate said that he had “screwed up” and had become angry and emotional on seeing another man at the address. He acknowledged breaking the windows and pushing the victim but denied punching her.
Decision under appeal
[12] The sentencing on 20 July 2023 by Judge Turner was based on his sentence indication on 5 April 2023.8 He treated the charge of injuring with intent to cause grievous bodily harm as the lead offence and identified five, possibly six, aggravating features: extreme violence, serious injury, attack to the head, vulnerability, home invasion, and (potentially) vigilante action.
[13] The Judge considered the offending fell into band three of R v Taueki, involving a serious family harm assault in the victim’s home.9 He placed the offending at the lower end of band three and adopted a starting point of five years six months for the lead charge, to which he added six months for the threatening to kill charge, highlighting the use of a knife and the threat later made to the victim that the appellant would come back and “finish her off”. The Judge then added a further three months for the September 2022 charges.
[14] From an overall starting point of six years three months’ imprisonment, the Judge imposed an uplift of 10 per cent for aggravating features because the police charges were in breach of a police safety order issued earlier in the day and the Crown charges were in breach of bail on the police charges.
[15] The Judge allowed a discount of 20 per cent for the guilty plea, as he had previously indicated. He said seeking a sentence indication after being offered reduced charges “moves you further away from accepting guilt/responsibility at the earliest opportunity”.10 The Judge considered 20 per cent was generous given the strong case against Mr Mate and the agreed reduction in charges which, in his view, were open for the Crown to proceed upon.11
8 R v Mate DC Dunedin CRI-2022-012-1530, CRI-2023-012-000149, 5 April 2023 [Sentence
indication].
9 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
10 Sentence indication, above n 8, at [30].
11 At [30]–[33].
[16] The Judge also allowed a discount of 12 per cent for remorse and rehabilitation. As to the former, he said that additional remorse over and above that inherent in Mr Mate’s guilty plea:12
… has been shown in this case, through participation in the restorative justice process; a direct apology to the victim, which she has accepted; through statements to the Probation Service and in his letters to the Court, which I take into account. I am prepared to accept that he has shown additional remorse, which warrants further credit.
As to rehabilitation, the Judge said:13
I consider those steps [a medium intensity rehabilitation programme and a Stopping Violence programme] to be genuine and, in that regard, place weight on what the victim has said, expanded on by Crown counsel today, that she has seen a change in the defendant since his remand in custody, that he is capable of change and has potential. To use the defendant’s own words: “I’m not what I’ve done.” As I said to him during the course of submissions, he is not to take that to mean he is a bad person but what he has done is bad. I accept he is capable of change and his history demonstrates that.
[17] The Judge declined to allow any discount for the matters raised in the s 27 report. He said he first observed it was largely based on self-reporting and no qualifications had been set out by the report writer.
[18] The Judge next noted that after interviewing Mr Mate and speaking “for an unspecified period”,14 with Mr Mate’s whāngai sister by phone, the report writer identified that cultural deprivation, childhood trauma, gang affiliation, alcohol and relationship dysfunction were factors that were a historical and proximate cause of the offending.
[19] The Judge disagreed, saying that Mr Mate was raised by his grandparents, had a good upbringing, was involved in cultural activities and had instilled in him appropriate moral values. He had remained at school until the end of the sixth form year, and on leaving school immediately taken up employment and had subsequently been employed in a variety of jobs. He had moved from Whakatāne to Auckland for
12 Mate, above n 1, at [15].
13 At [17].
14 At [19].
work and in more recent years to Dunedin with his partner, the victim, to live and work there.
[20] The Judge considered there was no specific evidence that Mr Mate had suffered cultural deprivation and no causative connection had been demonstrated between his background and the offending. He noted in particular that Mr Mate had not been placed in State care.
[21] The Judge accepted Mr Mate was potentially at greater risk of developing substance abuse disorders. However, substance abuse was not a feature of the offending given Mr Mate maintained he was not affected by substances at the time.
Discussion
Starting point
[22] Ms Pinnock, for Mr Mate, submits that an appropriate starting point should be between three years and six months and five years’ imprisonment, rather than the starting point fixed by the Judge of five years six months’ imprisonment.
[23] First, Ms Pinnock maintains that the Judge failed to make a discernible adjustment to account for the fact that the bands set out in Taueki concerned the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm, an offence that carries a maximum penalty of 14 years’ imprisonment.15
[24] Secondly, Ms Pinnock submits that the offending should have been regarded as band two offending amongst other things on the basis that the more serious injuries afflicted in Taueki, described as “extremely vicious”, were assessed as category two offending.16
[25] On the second point, however, as the Crown points out, the actual sentences of Mr Taueki and of defendants in the other cases referred to by Ms Pinnock, were subject
15 Crimes Act 1961, s 188.
16 Taueki, above n 9 at [131].
to earlier guideline decisions and are therefore not helpful for comparisons concerning the three bands.
[26] It is well-established that the sentencing bands set out in Taueki are applicable to sentencing for injuring with intent to cause grievous bodily harm, provided that “appropriate adjustments are made to reflect the lesser maximum penalty”.17 However the bands are not bright lines, and there is no strict guidance on the various bands’ boundaries under the lesser charge of injuring with intent to cause grievous bodily harm.
[27] In Aitken v R, the Court of Appeal recently held the sentencing Judge was correct to adopt a starting point of seven years’ imprisonment on a charge of injuring with intent to cause grievous bodily harm where the offending was placed between bands two and three. The case involved an unprovoked attack on a stranger who the offender believed had been responsible for an earlier assault. The victim sustained around 10 punches to the head and body, before being further kicked and punched while unconscious on the ground.18 In Aitken, the sentencing Judge had identified many of the aggravating factors considered engaged by Judge Turner in the present appeal, including, an attack to the head, the victim suffering serious injuries and a vulnerable victim.
[28] Judge Turner’s conclusion that five of the aggravating factors identified in Taueki were present in the offending cannot be disputed. It was therefore appropriate for the Judge to conclude that Mr Mate’s offending fell within band three or, in any event, within the range where bands two and three overlap. Second, in light of that conclusion, and the Court of Appeal’s decision in Aitken, the Judge’s starting point fell within an appropriate range when taking into account the seriousness of Mr Mate’s offending. Moreover, an appropriate adjustment was clearly made to reflect the lower maximum sentence under the lead offence, given that band three in Taueki contemplates a sentence of between nine and 14 years.
17 Aitken v R [2022] NZCA 593 at [20]. See also R v Taueki, above n 4, at [9]; R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39 at [37]; and, Solicitor-General v Milne [2020] NZCA 134 at [34].
18 Aitken, above, at [7].
Guilty plea
[29] Ms Pinnock says Mr Mate should have been allowed the full 25 per cent discount for his guilty pleas. He pleaded guilty immediately to the September 2022 charges and within a reasonable time after negotiations on the November 2022 charges.
[30] The Crown says a credit of 20 per cent was well within range for a guilty plea “entered so late in the piece”. Mr Mate was initially charged in November 2022 with causing grievous bodily harm with intent to cause grievous bodily harm. He also faced two additional charges of aggravated burglary and threatening to kill. In late January 2023, the Crown offered to reduce the lead charge to a charge of injuring with intent to cause grievous bodily harm and to drop the charge of aggravated burglary. Mr Mate still disputed that he intended to cause grievous bodily harm, and other facts. Those matters were not resolved in his favour. He then sought the sentence indication and accepted it, pleading guilty in early April 2023 before the first callover. Mr Smith says Mr Mate failed to plead at the first reasonable opportunity, which was in late January 2023.
[31] I do not consider that Mr Mate should be penalised for entering guilty pleas to the November 2022 charges only about two months after the charges had been reduced. This is not a long delay, particularly given the pleas were still before the first callover. Nor is this a case where Mr Mate had been offered very beneficial concessions, such that he would receive a double benefit if given a full guilty plea discount.19 I consider the negotiations were fair and that previously he may have been subject to overcharging. Even if there was a strong case on the charges as they stood after negotiation, that is true in many instances. As the Court of Appeal said in Rowles v R, there is still benefit to the State and the victim in a guilty plea even where the case is overwhelming against the defendant.20 In that case, the Court on appeal was prepared to allow a guilty plea discount of 25 per cent.
19 Hessell v R [2010] NZSC 135 [2011], 1 NZLR 607 at [62].
20 Rowles v R [2016] NZCA 208 at [24].
[32] Finally, asking for a sentence indication before entering a plea should not be viewed, at least in this context, as a move away from accepting guilt.21 Rather, a sentence indication is part of a process embarked upon with the Crown aimed towards accepting guilt. It does not preclude a full discount. Indeed, it is common for a sentence indication to allow for a discount of 25 per cent.
[33] For the above reasons, I consider the Judge was in error in reducing the guilty plea discount and assess the discount at 25 per cent. Guilty pleas are to be encouraged, particularly in family violence cases.
Global discount for remorse and rehabilitation
[34] Ms Pinnock contends that the Judge should not have aggregated remorse, restorative justice and rehabilitation into one discount, and that had they been treated separately the discount would have been demonstrably greater.
[35] Ms Pinnock also says the Judge declined to take account of Mr Mate’s offer to give the victim his car because, as it transpired, the car was repossessed. That offer should nonetheless have been factored in.
[36] I disagree with the latter point. I agree that the offer reinforces Mr Mate’s desire to make amends and I have no doubt the offer was genuine, which indeed the Judge said. But no more can be made of it than that.
[37] There is a significant overlap between Mr Mate’s remorse, participation in restorative justice and efforts at rehabilitation. I consider the Judge appropriately viewed those in the round. The discount of 12 per cent is a fair one.
Section 27 report
[38] Ms Pinnock says the Judge erred in not taking proper account of the s 27 report and a discount of 10 per cent should have been allowed.
21 Sentence indication, above n 8, at [30].
[39] In oral submissions, Mr Smith acknowledges the Judge could have allowed a small discount but only with regard to his exposure at a young age to family violence.
[40]I agree with Ms Pinnock that a discount of 10 per cent was appropriate.
[41] While I understand the Judge’s concern about reports that are largely based on self-reporting, as the Supreme Court said in Berkland v R, that does not mean the report is incapable of establishing the relevant facts.22 Further, in my view Mr Mate’s account and the report generally rang true. Mr Mate made statements that were unhelpful to his case. Indeed, if any statements were incorrect it is probably these.
[42] In any event, the s 27 report is not based solely on self-reporting. As the Judge notes, there is a record of a discussion with Mr Mate’s whāngai sister, which I also found helpful, regardless of its unknown length.
[43] It is quite common for qualifications and experience of the report writer to not be referenced. Ms Pinnock says these could have been readily gleaned from the website of the company providing the report. While it might be preferable for qualifications and, at least, experience to be set out, again, in the absence of material to the contrary it has to be assumed that the writer has appropriate credentials. As Ms Pinnock says, s 27 of the Sentencing Act 2002 does not require any formal qualifications or particular expertise on the part of the writer. The same of course applies to PAC reports where the writer’s experience and qualifications are not provided.
[44] In addition, it is not necessary to show that the factors referred to are a proximate cause of the offending; a causative contribution is sufficient.23 In this regard, I consider the Judge focused too heavily on the positives of the report and over- analysed the many negative factors that were still omnipresent for Mr Mate.
[45] In my view, Mr Mate’s early separation from his parents, his exposure at a very young age to family violence, alcohol and drugs when he stayed with his parents in
22 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [129].
23 At [109].
the school holidays, the loss of his koro/grandfather when he was still a teenager, and his grandmother a few years later, his gang affiliation and later cultural isolation are all factors that call for recognition as causative contributors of his offending.
[46] Mr Mate was taken away from his parents as a young child by his grandparents because of their volatile and violent relationship. Mr Mate’s sister describes his father as a “very violent man”. His parents separated subsequent to Mr Mate’s formal adoption, but they “still had stuff going on between them and other family members”, as Mr Mate put it. He spent school holidays with his parents and was exposed to violence, drinking and drugs. At an early age he remembers his mother and her brothers drinking and fighting. The report writer says the holidays were traumatic for him. The Judge entirely discounts this factor because Mr Mate told the report writer he later disassociated from violence. Clearly Mr Mate did not. 24 An example had been set for him.
[47] Even if alcohol was not a direct factor in the offending, it is very clear from the material that Mr Mate has a significant problem with alcohol abuse which would have affected his behaviour at the relevant time. He was exposed to alcohol as a boy. That led on to Mr Mate in his intermediate years dabbling with alcohol and drugs and attaching to a negative peer group. Alcohol became pervasive in his lifestyle. Mr Mate’s prior history of offending consists largely of excess blood alcohol charges. He may or may not have been drinking at the precise time of the offending but he clearly was abusing alcohol at that time and for some years leading up to it. As noted, that would have affected his behaviour, along with the dire financial circumstances he was in at the time of his offending. These factors caused him to spiral downwards. He had nowhere to live. He said he had been financially supporting both himself and his partner but that his partner, who he says had a drug habit, was taking money from him. Whether that is true or not, he clearly was homeless at the time of the offending. He was at rock bottom.
[48] It is similarly very clear from the materials and Mr Mate’s sister’s account that he was traumatised by the early loss of his grandparents and has not recovered from
24 As the Judge also points out Mr Mate had several earlier convictions for violent offending, albeit not attracting prison sentences.
that. She said he struggled to cope after his grandparents died. That is no surprise in the circumstances. I found her account particularly convincing, including the fact that while strongly supportive of Mr Mate, she stressed that the primary concern of the whānau was for the victim for whom they felt real mamae.
[49] After his koro died, Mr Mate turned to gang membership for support. Again, he witnessed violence.
[50] And although it was his “choice”, as the Judge says, to move away from his tūrangawaewae in Whakatāne, the point of these reports is that they demonstrate some people have much less real choice than others. I accept Mr Mate was also affected by the disconnect from his wider whānau when it comes to this offending.
[51] None of this is to depart from the viciousness of the crime Mr Mate committed but it is all relevant by way of personal mitigating circumstances. If these background factors had not all been part of Mr Mate’s life, stemming from an early age, it is doubtful he would have committed the present offending.
[52] For these reasons, I consider Mr Mate should have been allowed a discount of 10 per cent, being approximately eight months.
[53] The effect of not having allowed that discount and a full guilty plea discount of 25 per cent renders the sentence manifestly excessive.
Orders
[54] The appeal is allowed. Mr Mate’s sentence of four years 10 months’ imprisonment is quashed and substituted with a sentence of three years and ten months’ imprisonment.
Hinton J
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