| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA791/2018 [2019] NZCA 406 |
| BETWEEN | WARREN DAVID MATHIESON |
| AND | NEW ZEALAND POLICE |
| Hearing: | 19 August 2019 |
Court: | Brown, Simon France and Dunningham JJ |
Counsel: | D H P Schellenberg and K Petrie for Appellant |
Judgment: | 3 September 2019 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence is allowed.
BThe convictions for male assaults female and threatening to kill are quashed. The appellant is discharged without conviction on both charges.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
This appeal against a refusal to discharge without conviction proceeds pursuant to a grant of leave to bring a second appeal.[1]
Mr Mathieson pleaded guilty to charges of male assaults female and threatening to kill. His first appearance was recorded as 8 August 2017 in the District Court. From thereon in the charges were managed in the Family Violence Court. His first appearance in the Family Violence Court was on 12 September 2017. Prior to that appearance Mr Mathieson, who had alcohol issues, had started on courses offered by Community Alcohol and Drugs Services. He had also made inquiries about anger management and non-violence courses.
Mr Mathieson’s rehabilitative efforts were monitored by the Family Violence Court for a period of 10 months prior to his actual sentencing. During that time, he completed 12 weeks of alcohol and drugs courses, and a 20-week Living Without Violence course. His monitoring sessions in the Family Violence Court were largely positive and supportive events.
The primary point on appeal is that the decisions of the District Court and High Court, particularly as regards the assessment of the gravity of the offending, give too little weight to those positive rehabilitative endeavours.[2] It is submitted this is due to an error in approach which has relegated these efforts to the question of penalty rather than factored them into the application of s 106 of the Sentencing Act 2002.
Facts
[2]Police v Mathieson [2018] NZDC 20147 [District Court decision]; and Mathieson v Police [2018] NZHC 3153 [High Court decision].
Mr Mathieson and the complainant had been in a relationship for three years. On an occasion in August 2017, there was an argument over an alleged infidelity. Mr Mathieson grabbed the complainant by the jaw with both hands. He desisted but then shortly after, as the argument continued, repeated the gesture. He also threatened to kill her. The complainant suffered a sore head and neck, with visible bruising to the front of her neck under her chin.
Mr Mathieson’s charges were referred to the Family Violence Court. After an initial not guilty plea, and then a change in the charges, six weeks after his 12 September appearance in the Family Violence Court he entered guilty pleas. By the time of that appearance he had commenced the Community Alcohol and Drug Services programme and had…
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- Mathieson v Police [2019] NZCA 406
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- [2019] NZCA 406
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