Mathias v Police - [2016] NZHC 959

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000121 [2016] NZHC 959

BETWEEN
PAUL ALURED MATHIAS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 May 2016

Appearances:

R W Maze for Appellant
H F McKenzie for Crown

Judgment:

12 May 2016

JUDGMENT OF DUNNINGHAM J

[1] Mr Mathias appeals his sentence of 22 months’ imprisonment, along with an order disqualifying him from holding or obtaining a driver’s licence for two years and confiscating his 16 year old Audi motorcar, which was imposed on a charge of burglary.

[2] The initial notice of appeal was prepared by Mr Mathias himself. It alleged counsel incompetence leading to a miscarriage of justice and that the overall sentence was excessive because “mitigating factors in this case [were] not presented”.

[3] In due course, new counsel was appointed for the appellant and, after receipt of the transcript of the District Court hearing, the allegation of counsel incompetence
has been abandoned. The grounds of appeal which were advanced at hearing are:

MATHIAS v NEW ZEALAND POLICE [2016] NZHC 959 [12 May 2016]

(a) the Judge failed to apply the principle of parity, because the sentencing indication given to his co-offender started with a sentence of 18 months’ imprisonment, whereas his starting point was
20 months’ imprisonment;

(b)the Judge failed to expressly consider or acknowledge the mitigating factors of remorse;

(c) the Judge wrongly disqualified the appellant from holding or

obtaining a driver’s licence;

(d) the Judge wrongly ordered confiscation of his vehicle;

(e) in the alternative to (c) and (d) above, the Judge failed to apply the totality principle in respect of the combination of the term of imprisonment and the punitive orders made pursuant to ss 124 and
128 of the Sentencing Act 2000.

[4] As a consequence of any one or more of the above grounds being established, this resulted in a sentence that was manifestly excessive or wrong in principle, and a new sentence ought to be imposed.

The background facts

[5] At about 4.00 pm on 11 August 2015, Mr Mathias and his associate burgled a Christchurch house. Mr Mathias gained entry to the house through a kitchen window and let his associate in through the door. The two of them then rummaged through drawers and cupboards and took various items of value including jewellery and electronics. They packed the items into bags and left the property on foot carrying the stolen items. The items were then placed into the boot of Mr Mathias’ car, which was parked a short distance away and they drove away. The two offenders were stopped nearby by police and the stolen items were recovered from the boot of the car. Mr Mathias admitted his role in the burglary saying he did it because he needed money.

The appellant’s circumstances

[6] Mr Mathias has a number of previous convictions, including four drug related convictions, two violent offences and 15 dishonesty offences, including 13 previous burglary by day convictions. He was also subject to an order of…

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.

Continue reading Mathias v Police

Details

AGLC: Mathias v Police [2016] NZHC 959
Case: [2016] NZHC 959
Decision Date: 12 May 2016

CaseChat Overview and Summary

Paul Alured Mathias appeals against his sentence of 22 months' imprisonment and two years' disqualification from holding or obtaining a driver's licence, and confiscation of his motor vehicle, imposed by the District Court on a charge of burglary. The High Court heard grounds of appeal relating to the sentence's parity with that of his co-offender, the Judge's failure to take into account evidence of remorse, the Judge's failure to exercise his discretion properly in making disqualification and confiscation orders, and the Judge's failure to apply the principle of totality in sentencing. The Judge's failure to exercise his discretion properly in making disqualification and confiscation orders was upheld, and the appeal was allowed in part. The orders for disqualification under s 124, and for confiscation of the appellant's motor vehicle under s 128, were quashed. The balance of the sentence was upheld and was unaffected by this appeal.

Orders