Matekuare v The King

[2023] NZHC 3706

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-91

[2023] NZHC 3706

BETWEEN

QUINTIN MATEKUARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 December 2023
Appearances:	A Burns for Appellant T Afoa for Respondent
Judgment:	14 December 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 14 December 2023 at 2.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

A Burns, Rotorua

Gordon Pilditch, Rotorua

MATEKUARE v NEW ZEALAND POLICE [2023] NZHC 3706 [14 December 2023]

[1]        Mr Matekuare pleaded guilty to numerous charges in the District Court involving allegations of trespass, theft and dishonestly using a document to obtain a pecuniary advantage. He also pleaded guilty to a charge of breaching a sentence of community work.

[2]        On 1 August 2023, Judge D J McDonald sentenced Mr Matekuare to an effective term of 18 months imprisonment.1 Mr Matekuare appeals against the Judge’s decision. He contends that mathematical errors coupled with errors of fact and sentencing principle led the Judge to impose a sentence that was manifestly excessive.

The offending

[3]        Several of the charges related to incidents that occurred between 27 March and 19 May 2023 when Mr Matekuare stole items from a food store situated in central Rotorua. He had been trespassed from the premises prior to March 2023 because of racial abuse he had directed towards the owners of the premises. This did not dissuade Mr Matekuare from returning to the store on several occasions and brazenly stealing small food items such as potato chips and chocolate bars. On each occasion he stole in full view of the owners of the business. Consistent with his earlier conduct he also directed verbal abuse of a racist nature towards the owners when they attempted to stop him leaving the premises with the stolen goods. He also threatened the occupants by saying he would smash and stab the tyres of their vehicles if they called the police.

[4]        On 6 March 2023, Mr Matekuare was also issued with a trespass notice prohibiting him from entering the Rotorua Central Mall for a period of two years. This did not dissuade him from entering a supermarket in the mall on 30 April 2023 and walking out without paying for confectionary.

[5]        Subsequently, on 21 May 2023, Mr Matekuare was in possession of a credit card that had gone missing on 21 May 2023 when the owner of a restaurant in Rotorua had his backpack stolen. Mr Matekuare then used the credit card to purchase items having a total value of approximately $860 using the paywave function on the card.

[6]        During the period when the offending occurred Mr Matekuare was subject to a sentence of community work imposed on other charges of shoplifting, wilful trespass

1      New Zealand Police v Matekuare [2023] NZDC 20296.

and failing to answer District Court bail. He had failed to carry out all but a very small portion of this sentence.

The sentence

[7]        In some respects it is difficult to discern from the Judge’s sentencing remarks exactly how he structured the sentence. It appears that he selected a sentence of six months imprisonment on the lead charge of dishonestly using a document to obtain a pecuniary advantage.2 This related to the use of the stolen credit card. The Judge then imposed a series of cumulative and concurrent sentences on each of the remaining charges. At the end of this process he indicated that the starting point on all charges was 20 months imprisonment.3 He then applied an uplift of two months to reflect the fact that Mr Matekuare has numerous previous convictions for offending involving dishonesty.4

[8]        Turning to mitigating factors, the Judge said he would apply a discount of   25 per cent on the resulting sentence of 22 months imprisonment.5 However, he did not articulate the extent to which this would reduce the sentence he had arrived at. The Judge then declined to make any further adjustments to reflect matters identified in a cultural report Mr Matekuare’s counsel tendered under s 27 of the Sentencing Act 2002.6

[9]        At the end of this exercise, the Judge stated that the effective end sentence was one of 18 months imprisonment.7 He imposed that sentence by imposing a sentence of six months imprisonment on the charge of dishonestly using the credit card and imposing cumulative sentences of two months each on six of the remaining charges. The Judge then imposed concurrent sentences of two months imprisonment on all remaining charges.

2 At [19].

3 At [20].

4 At [22].

5 At [23].

6      At [24]–[27].

7      At [29(p)].

The appeal

[10]      Mr Burns advances several grounds of appeal on Mr Matekuare’s behalf. He acknowledges that the starting point adopted on the lead charge of dishonestly using the credit card was appropriate. However, he contends that an uplift of no more than six months was warranted for the remaining charges. He accepts that an uplift of one to two months was appropriate to reflect the fact that Mr Matekuare has numerous previous convictions for similar offending.

[11]      Mr Burns also points out that the Judge committed an arithmetical error because he concluded an end sentence of 18 months imprisonment was appropriate. Mr Burns submits that the discount for guilty pleas alone ought to have reduced the sentence from 22 months to 16.5 months imprisonment.

Decision

[12]      I agree with Mr Burns that a starting point of six months imprisonment was appropriate on the charge relating to the dishonest use of the credit card. I also accept, as does Ms Afoa on behalf of the respondent, that an uplift totalling 14 months to reflect the remaining charges was outside the available range.

[13]      The offending that involved the repeated trespass and theft of small food items from the food store was aggravated significantly by the brazen way in which it was committed and the fact that it was accompanied by hurtful racial abuse directed at the owners of the store. However, given the low value of the items stolen and having regard to totality principles, I do not consider these charges justified an uplift of more than six months.

[14]      The trespass and theft of confectionery from the supermarket in the Rotorua Central Mall justified a further uplift of two months, as did the breach of the sentence of community work. This results in a sentence of 16 months imprisonment rather than 20 months before taking into account aggravating and mitigating factors personal to Mr Matekuare.

[15]      The starting points I have adopted in relation to the trespass and dishonesty charges already reflect the fact that Mr Matekuare has previous convictions for similar

offending. They would not have attracted a starting point of imprisonment but for his previous convictions for similar offending.

[16]      However, Mr Matekuare was serving (or more accurately was supposed to be serving) a sentence of community work imposed for similar offending at the time he committed the present offences. I consider an uplift of two months was justified to reflect this fact

[17]      A discount of 25 per cent was appropriate to reflect guilty pleas. This would be applied to the sentence of 16 months imprisonment before taking into account the uplift to which I have referred. This reduces the sentence to one of 14 months imprisonment.

[18]      Like the Judge, I do not see any material connection between the matters referred to in the s 27 report and the present offending. In particular, self-reported drug addiction issues do not appear to have played any role in the present offending because he does not appear to have been stealing items to fund his drug habit. Nor do alleged issues relating to Mr Matekuare’s disconnection from his whānau and culture. I therefore consider the Judge was correct not to apply a further discount to reflect matters identified in the cultural report.

Result

[19]The appeal against sentence is allowed.

[20]      In order to reduce the effective end sentence by four months I first reduce the sentence imposed on the charge of dishonestly using a credit card by two months. The sentence imposed on that charge is now four months imprisonment. I also direct that the sentence of two months imprisonment imposed on the charge with the CRN ending 2272 be served concurrently with other sentences rather than cumulatively on the sentence imposed on the charge with the CRN ending 2274. I also make the sentence imposed on charge 2268 cumulative on the charge with the CRN ending 2274 rather than that with the CRN ending 2272.

Lang J