Mathews v Police - [2012] NZHC 1261

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-448-000026 [2012] NZHC 1261

EUGENE MATHEWS
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 6 June 2012

Counsel: R Bowden for appellant
M Jarman-Taylor for Respondent

Judgment: 6 June 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

-

EUGENE MATHEWS V NEW ZEALAND POLICE HC WHA CRI-2012-448-000026 [6 June 2012]

[1] Mr Mathews pleaded guilty in the District Court to charges of burglary, being in possession of a jemmy, breaching his parole in two respects, breaching District Court bail on two separate occasions, breaching a protection order by physical abuse and stealing petrol.

[2] On 24 April 2012 Judge Maude sentenced Mr Mathews to an effective term of 29 months imprisonment.[1] He now appeals to this Court against the sentence that the Judge imposed on the ground that it was manifestly excessive.

Facts

[1] Police v Mathews DC Whangarei CRI-2011-090-010091, 24 April 2012.

[3] In order to understand the issues that the appeal raises, it is necessary to have some regard to the facts of the offending.

[4] The burglary charge arose as a result of an incident on the morning of Sunday, 6 March 2011. On that date Mr Mathews was the passenger in a motor vehicle that stopped outside a cycle store in Whangarei. He approached the front doors of the store and looked into the store through the window. He then went to a side door, where he used a jemmy to pry open a locked aluminium door. He then entered the store, thereby setting off a motion sensor alarm. He walked over to the counter, and used the jemmy to pry open the till. He discovered that this was empty and then rummaged through doors, shelves, cupboards and bags in the vicinity of the counter. He did so notwithstanding the fact that the store alarm was activated and in motion. He then left the store by the side door, but was arrested a short time later. The jemmy was still in his possession when he was searched following his arrest.

[5] Mr Mathews entered no plea to the charge of burglary, and was remanded to appear in the District Court at Whangarei on 28 March 2011.

[6] Two days prior to his scheduled appearance, namely on 26 March 2011, he became involved in an incident that led to the charge of breaching the terms of a protection order. On the morning of 26 March 2011, Mr Mathews went to the house
of his former partner. He then became involved in an argument with her about

access issues. He refused to allow his former partner to leave the address and then picked her up and carried her to the back door. Fortunately, her sister was present and pulled Mr Mathews away from his former partner. He then left the house and his former partner and her sister then called the police.

[7] It appears that this incident prompted Mr Mathews to elect not to honour the terms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 1261
Decision Date: 6 June 2012

CaseChat Overview and Summary

Eugene Mathews appealed against the sentence imposed by Judge Maude in the District Court on the ground that it was manifestly excessive. Mathews pleaded guilty to charges of burglary, possession of a jemmy, breaching his parole in two respects, breaching District Court bail on two separate occasions, breaching a protection order by physical abuse and stealing petrol. The District Court imposed a sentence of 29 months imprisonment. The High Court found that the starting point on the burglary charge should have been 18 months imprisonment, rather than the three years imprisonment that the District Court had selected. An uplift of 12 months imprisonment should have been applied to reflect Mathews' previous convictions and a further uplift of six months imprisonment was appropriate to reflect the remaining charges. The Judge had applied an appropriate discount for remorse and rehabilitative efforts, but an increased discount of six months imprisonment was appropriate to reflect Mathews' guilty pleas. This left an end sentence of two years one month imprisonment on the burglary charge. The appeal against sentence was allowed and the sentence of two years five months imprisonment was quashed. In its place, the High Court imposed a sentence of two years one month imprisonment on the burglary charge. The sentences on the remaining charges would remain as imposed in the District Court.

Orders