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Mathieson v Police

Mathieson v Police

Case [2019] NZCA 406 3 September 2019

Criminal Liability

Rehabilitation

Sentencing

Aggravating and Mitigating Factors

Mens Rea & Intention

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA791/2018
[2019] NZCA 406

BETWEEN	WARREN DAVID MATHIESON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 August 2019
Court:	Brown, Simon France and Dunningham JJ
Counsel:	D H P Schellenberg and K Petrie for Appellant E J Hoskin for Respondent
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]
[1]Mathieson v Police [2019] NZCA 97.
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…

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 Mathieson v Police

Details

AGLC: Mathieson v Police [2019] NZCA 406
Case: [2019] NZCA 406
Decision Date: 3 September 2019 at 11.30 am

CaseChat Overview and Summary

In the appeal of Mathieson v Police, the appellant, Warren David Mathieson, appealed against his conviction and sentence. Mathieson had pleaded guilty to charges of male assaults female and threatening to kill. The case was managed in the Family Violence Court, where Mathieson undertook rehabilitative courses. The appeal focused on the lower courts' failure to adequately consider Mathieson's positive rehabilitative efforts in assessing the gravity of his offending. The appellant argued that the District Court and High Court had given insufficient weight to these efforts when assessing the seriousness of the offending. The appeal was allowed, and the convictions were quashed. The court held that the District Court did not apply the correct approach when assessing the gravity of the offending, as it did not take into account the positive mitigating factors. The overall assessment of the gravity of the offending should have been low seriousness. The court also considered the consequences of a conviction and found that there was a real and appreciable risk that a conviction would impact Mathieson's employment status. Finally, the court concluded that a discharge without conviction was appropriate, as the impact of a conviction on Mathieson would be out of all proportion given his low level of culpability and rehabilitative efforts.

Orders