Matenga v Police HC Gisborne CRI-2011-416-024
[2011] NZHC 1203
•7 October 2011
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2011-416-024
TYSON MAXWELL MATENGA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 October 2011
(Heard at Wellington)
Counsel: A M Simperingham for Appellant
S A McClean for Respondent
Judgment: 7 October 2011 at 11:00 AM
In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 11 am on the 7th day of October 2011.
RESERVED JUDGMENT OF MACKENZIE J
[1] The appellant appeals against a sentence of two years nine months imprisonment imposed in the District Court at Gisborne on 15 July 2011 on one charge of burglary and one charge of receiving property valued at greater than
$1,000.
[2] The facts are that on 17 February 2011 the appellant drove an associate to, and dropped him near, an address in Gisborne. The associate took from the address
several laptops, a camera, a hard drive, and a vehicle. In payment for doing that,
MATENGA V NEW ZEALAND POLICE HC GIS CRI-2011-416-024 7 October 2011
Mr Matenga received two laptops, a digital camera, and a computer hard drive. That was the subject of the receiving charge. On 21 February 2011 the appellant drove an associate to a different property in Gisborne. The purpose was for the associate to beat up the occupant of the property. When it was found that the occupant was not there, the associate entered the house and took a TV. The appellant allowed the associate to put it in his vehicle and the associate entered the house and removed more items. That was the subject of the burglary charge.
[3] The appellant is 22 years of age and has 37 convictions. These include eight for burglary, nine for other dishonesty offending, and one for being in an enclosed yard, so there are in essence 18 previous relevant convictions. The appellant was assessed by the pre-sentence report writer as having a high risk of reoffending. The appellant is expecting his first child in November and his girlfriend’s maternal grandmother had offered her house as a location for an electronically monitored sentence. Because of previous non compliance and reoffending while on home detention and the high risk of further offending, the appellant was not assessed as suitable for an electronically monitored sentence.
[4] In sentencing, Judge Adeane referred to the guideline judgments of the Court of Appeal in R v Columbus,[1] and of this Court in Senior v Police.[2] He considered the appellant should be classified as a recidivist burglar. He said that the time for sympathetic treatment or wishful thinking about reforming the appellant has long passed and that his personal circumstances have limited weight. He noted the principal purposes of sentencing as denunciation and deterrence both of the appellant
and others. The judge referred to some evidence which had been given before him recently concerning the rate of burglaries in the Eastern Police District and noted that the rate of burglary offending relative to population was second only to central Auckland and three times the level of that occurring in the Southern and Tasman districts. He said there is something seriously wrong in the East Coast and it is
something which needs to be addressed.
[1] R v Columbus [2008] NZCA 192.
[2] Senior v Police (2000) 18 CRNZ 340 (Full HC).
[5] The judge adopted a starting point of two years imprisonment for the burglary and nine months imprisonment for the receiving, which he imposed concurrently. He uplifted that two year starting point by 12 months to recognise the recidivist nature of the offending. He noted that the appellant had pleaded guilty at an early stage but said that the appellant had rather spoilt his discount by breaching bail repeatedly so that the matter had been delayed in coming to sentencing. He allowed a reduction of three months, or about 10 per cent, resulting in an end sentence of two years and nine months.
[6] The grounds of appeal are that:
(a) The sentence was manifestly excessive;
(b)The sentencing judge misdirected himself by reducing the discount that the appellant was to receive on account of bail breaches; and
(c) The discount that the appellant received for his early guilty pleas was insufficient.
[7] An additional ground initially raised, that the sentencing judge took into account crime statistics from Hawke’s Bay and that those were irrelevant to the appellant’s Gisborne offending, was not pursued, in the light of production of the affidavit on which the judge’s comments had been based, which indicates that the figures given were for the Eastern region, which includes Gisborne.
[8] In support of his submission that the sentence is manifestly excessive, Mr Simperingham submits that Mr Matenga fits Senior v Police’s category 2 as a recidivist burglar and that sentencing in this category is dependent on the number of previous convictions and current offences. He notes as aggravating factors in this case the eight previous convictions for burglary, and that the victims of the burglary may have felt targeted in the light of the appellant’s comment that his associate was carrying out an act of retribution. He submits as mitigating factors that the role in relation to the burglary was confined to that of driver and that on the receiving charge all the property was returned to the victim. He submits that the appellant has
good family support. He has recently developed an involvement with the Destiny
Church and plays senior rugby. He submits that the appellant is still young at
22 years and has struggled to free himself from relationships with gang associations that he formed during his teenage years. He submits that the Court should acknowledge that he is still at the immature stage of life. He submits that the guilty pleas were entered at the first reasonably opportunity and a 25 per cent discount is appropriate.
[9] Counsel for the respondent notes that in relation to recidivist burglary, the starting point usually includes consideration of an offender’s previous convictions for burglary, as in Senior v Police and R v Southon.[3] Counsel notes that Courts in
[3] R v Southon (2003) 20 CRNZ 104.
more recent burglary sentencing cases following Columbus[4] have adopted starting
[4] R v Columbus, above n 1.
points which do not include consideration of previous convictions and that that was the approach adopted by the sentencing judge. Counsel notes as aggravating factors that the burglary of a dwelling house, the victim may have felt targeted, the items were of high monetary value and in high demand and easy to resell, and that the receiving was an aggravating feature. The respondent accepts that it is mitigating that the stolen property was returned but does not accept as a mitigating factor that
the appellant’s co-accused instigated the burglary. Counsel refers to Curry v R,[5]
[5] Curry v R [2010] NZCA 491.
Taylor v Police[6] and submits that the starting point of two years imprisonment was in the available range. Counsel submits that the uplift of one year for the appellant’s previous criminal history was warranted to deter the appellant and to protect the community. Counsel submits that, when the end sentence is considered, it could not be said to be manifestly excessive for burglary and receiving charges involving high value goods committed by a recidivist burglar in an area where the prevalence of this offending requires a deterrent response.
[6] Taylor, Petersen & Ngarino v Police HC Whangarei CRI-2006-488-37, 29 August 2006.
[10] I begin by considering the starting point for the burglary and receiving charges, having regard to the circumstances of the offending. In Columbus, the Court of Appeal held that for burglary which was described as “at the minor end of
the scale”, a starting point of one years imprisonment was appropriate, which was
uplifted by six months to reflect multiple offending shortly after the burglary. In Taylor, there were burglaries of three dwelling houses on the same day each involving forced entry and relatively minor thefts, with total property taken being around $4,000. This Court, on appeal, considered a starting point of two years nine months to be appropriate. In Curry v R,[7] which involved one burglary of a residential property in which a plasma television and two stereo speakers valued at approximately $2,500 were taken, the Court of Appeal held that a starting point of
[7] Curry v R [2010] NZCA 491
15 months was within the available range. Other relevant cases to which I have had regard are R v Povey,[8] where a starting point of two years was adopted, for a burglary at night of a woman’s apartment, by two offenders, armed with a spear gun. In Tukaki v Police,[9] this Court, on appeal, adopted a starting point of two years for a single charge of burglary involving property valued at $20,000. In Thompson v Police,[10] this Court, on appeal, held that a starting point of two years for burglaries and two residential premises involving $7,000 worth of property by an offender with
[8] R v Povey [2009] NZCA 362.
[9] Tukaki v Police HC Hamilton CRI-2010-419-71, 24 November 2010.
[10] Thompson v Police HC Hamilton CRI-2010-419-56, 17 November 2010.
24 years of prior offending (taken into account in the starting point) could have been higher.
[11] In this case, the culpability of the appellant is slightly reduced by his having been the driver only and not having initiated the offending. I am not aware of the sentence imposed on his co-offender.
[12] Having regard to all the circumstances, I consider that a starting point of two years for the totality of the offending, involving two residential properties, and property totalling approximately $2,500, was at the top of, but not above, the available range.
[13] In reaching that view, I give weight to the judge’s view that there was a special need for deterrence because of the extent of the burglary problem in the Eastern Police District. That was an assessment which the judge was best placed to
make. Considerations of deterrence are properly to be taken into account in
assessing the starting point. The special need for deterrence in the Eastern Police
District justified a sentence at the top of the available range.
[14] The next issue is the extent of the uplift for previous convictions. Having regard to the eight previous convictions for burglary, and the comparatively young age of the appellant, I do not consider that he ought properly to be categorised as a recidivist burglar. I do not consider that there is a sufficiently established pattern of consistent offending to lead to that categorisation. I consider that an uplift of
12 months to reflect his previous offending, and the fact that the offending occurred while he was subject to release conditions, is too high. I consider that an additional uplift of nine months is justified.
[15] The final issue is the discount for guilty plea. Counsel for the respondent submits that the maximum available discount for a guilty plea should not have been given because of the strength of the prosecution case. The respondent accepts that the three breaches of bail did not cause any delay to the sentencing date and that it was wrong for the judge to take the bail breaches into account. Counsel submits that the discount for the guilty pleas should have been not more than 15 per cent. I do not consider that the discount ought to have been affected by the breaches of bail. Those breaches had been dealt with, and had resulted in the appellant spending further time in custody. They did not, as counsel for the respondent accepts, lead to a delay in sentencing as the judge had thought. The Crown case was strong, but the saving in resources and the avoidance of a trial are significant factors. I do not consider that a departure from the full 25 per cent discount is appropriate. I allow a discount of eight months, to an end sentence of two years and one month.
[16] The appeal is allowed. The sentence is quashed and a sentence of two years and one month is substituted.
Solicitors: Woodward Chrisp, Gisborne, for Appellant
Luke Cunningham & Clere, Wellington, for Respondent
“A D MacKenzie J”
0
5
0