Matika-Marsh v Police

[2022] NZHC 1331

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-000008

[2022] NZHC 1331

BETWEEN

LEVI KOPAHI MATIKA-MARSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

30 May 2022

Counsel:

S G Vidal for the Appellant

W Chapman for the Respondent

Judgment:

7 June 2022

JUDGMENT OF NATION J

Introduction

[1]                  Levi Matika-Marsh appeals a sentence of 24 months’ imprisonment imposed by Judge Walker in the Gore District Court on three charges of driving with excess blood alcohol causing injury,1 one charge of dangerous driving,2 one charge of aggravated driving while disqualified3 and two charges of breaching release conditions4.

1      Land Transport Act 1998, ss 61(1)(b) and 61(3A); maximum penalty five years’ imprisonment. Mr Matika-Marsh had at least two previous convictions for offences against ss 56(1), 56(2), 57A(1), 60(1) or 61(2) of the Land Transport Act relating to driving with excess blood alcohol or refusing to supply a blood specimen.

2      Land Transport Act, s 35(1)(b); maximum penalty three months’ imprisonment.

3      Land Transport Act, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment.

4      Sentencing Act 2002, s 96(1); maximum penalty one years’ imprisonment.

MATIKA-MARSH v POLICE [2022] NZHC 1331 [7 June 2022]

Facts

[2]                  On 24 November 2020, Mr Matika-Marsh was aged 27. He had convictions for driving with excess breath alcohol on 29 March 2012, 5 September 2012 and 6 November 2016, and for driving while impaired with drugs for an offence on 2 September 2016. He had convictions for driving while disqualified on 10 November 2017 and 2 March 2019.

[3]                  On 24 November 2020, Mr Matika-Marsh was sentenced to two months’ imprisonment for common assault (family violence) and five months’ imprisonment for two charges of failing to stop when followed by red/blue flashing lights, driving at a dangerous speed and driving while disqualified. Those offences were committed on 15 September 2020. He was released from that sentence of imprisonment on 15 December 2020. He was to be subject to release conditions for a further 10 months and six days.

[4]                  On 16 June 2021, Mr Matika-Marsh appeared in the District Court charged with breach of release conditions. The summary of facts for that offence said he had failed to report to his probation officer as directed on 7 April 2021, 22 April 2021, 19 May 2021 and 2 June 2021. He was issued verbal warnings, written warnings and a final written warning. On 9 June 2021, he again failed to report to his probation officer as directed.

[5]                  At approximately 3.15 am on 8 August 2021, Mr Makita-Marsh was driving a vehicle on Huron Street, Gore. He was travelling north approaching the intersection of Huron Street and Anderson Place. As he approached Anderson place, he crossed the centre line of the road into the opposing lane. He narrowly missed a power pole on the side of the road. The driver’s side wheels of his vehicle mounted the footpath just south of the intersection and began to roll. The wheels on the passenger’s side hit the curb on the opposing corner of the intersection causing it to completely overturn. It crashed through a fence, entering a property at the corner of Anderson Place and Huron Street. The vehicle continued to move through that property, colliding with the wall of the dwelling. Inside that wall were two bedrooms where the three victims were sleeping. The vehicle broke through the brick wall of the house, causing bricks and

other housing material to hit the beds of all three victims. The beds of the three victims were shunted forward. Two of the victims were struck on the head by the bed headboards. Two of the beds were hit by a section of wall.

[6]                  A sample of blood obtained six hours later at Invercargill hospital showed Mr Matika-Marsh had a blood alcohol concentration of 157 +/- 8 milligrams of alcohol per 100 millilitres of blood. The analysis also showed the presence of cannabis.

[7]                  There was extensive structural damage to the dwelling. The cost of repairs, as calculated for reparation, was $24,176.81. The house was not insured. It was apparent from victim impact reports that, as at 12 February 2022, the occupants had been unable to repair the house. The roof leaked. An outside wall was missing. The house was cold and draughty, affecting the health of the occupants.

[8]                  The three victims of the offending were a 38 year old woman and two 14 year old girls. They had all been inside the dwelling asleep at the time of the incident. All three victims suffered severe pain to their backs or upper bodies. All were hospitalised. All had suffered significant and ongoing emotional trauma and distress.

District Court decision

[9]                  The Judge agreed with Mr Matika-Marsh’s counsel’s characterisation of his record of previous convictions as being “appalling”. He noted that, in addition to the offending in connection with the motor vehicle crash, Mr Matika-Marsh was being charged for two breaches of release conditions. As to that, the Judge noted seven breaches of community-based sentences and one previous breach of release conditions.

[10]              The Judge referred to what Mr Makita-Marsh had told the probation officer about the offending. Mr Matika-Marsh mentioned he had turned the steering wheel at the last minute. The Judge accepted, from what he had read on the Court file and what Mr Matika-Marsh said at the restorative justice meeting, that Mr Matika-Marsh was trying to harm himself. He referred to the differing statements Mr Matika-Marsh made as to remorse. He referred to Corrections’ assessment that he was at high risk of reoffending and their recommendation of a sentence of imprisonment with release

conditions. He said he was not overlooking the section in the report about Mr Matika- Marsh’s “abusive and chaotic upbringing”. He said he was not going to refer to that in more detail because it was in the report and he knew those paragraphs were “intensely personal” to Mr Matika-Marsh.

[11]              The Judge referred to the impact on the victims and the apology Mr Matika- Marsh made at a restorative justice meeting with the victim and her husband. He noted Mr Matika-Marsh’s offer of reparation and that he had made three payments of $500 each to the victims as at sentencing.

[12]              The Judge noted the aggravating features of the offending: driving while disqualified and driving in a dangerous manner, all with an excess blood alcohol level of around twice the legal level.

[13]The Judge told Mr Matika-Marsh:5

[27] You indicated at the restorative justice meeting that you  were  depressed and you intended … to do yourself harm, but your actions were selfish in that in trying to achieve your aim, you put others at risk of serious injury or death.

[14]              He said it had been luck that Mr Matika-Marsh’s actions did not bring about fatal consequence for the occupants of the house.

[15]              With reference to a number of cases, the Judge adopted a starting point for the excess blood alcohol causing injury offending of 30 months’ imprisonment.6 He uplifted that by six months for the driving while disqualified. The Judge considered that was generous given that uplifts of 12 months had been applied in like cases. He uplifted that starting point again by four months on account of Mr Matika-Marsh’s previous convictions, leading to a starting point of 40 months. From that he deducted 25 per cent for guilty pleas and a further 15 per cent for Mr Matrika-Marsh’s engagement in restorative justice, the offer to pay some of the reparation in a lump

5      Police v Matika-Marsh [2022] NZDC 3626.

6      R v Fallowfield [1996] 3 NZLR 657, (1996) 14 CRNZ 87; Arrow v Police [2016] NZHC 3069; McQuillan v Police [2018] NZHC 1247; May v Police [2012] NZHC 624; Matheson v Police HC Court Christchurch, 1 June 2007, CRI-2007-409-32; and Begg v Police [2016] NZHC 3069.

sum and the personal circumstances described in the report. That brought the sentence down to 24 months exactly.

[16]              The Judge said there would be standard and special release conditions until eight months after the sentence expiry date. The special conditions related to attendance at alcohol and drug counselling, and attendance at other programmes as directed by a probation officer. Mr Matika-Marsh was ordered to pay $858.85 for a medical and analyst fee and reparation of $22,676.81 which was the balance of the reparation after deducting the $1,500 already paid. He was disqualified from driving for two years. On the two breach of release conditions charges, Mr Matika-Marsh was convicted and discharged. Concurrent sentences of 12 months’ imprisonment were imposed on each of the driving while disqualified and dangerous driving charges.

[17]              The Judge said he had considered whether leave should be granted for home detention. He did not consider that appropriate because of the nature and seriousness of the charges, Mr Matika-Marsh’s previous driving record and his lack of compliance with community-based sentences. He doubted that, with Mr Matika-Marsh’s previous record of non-compliance, there would be compliance with such a sentence.

Principles on appeal

[18]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

7      Criminal Procedure Act 2011, ss 250(2) and 250(3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Ripia v R [2011] NZCA 101 at [15].

The appeal

Appellant’s submissions

[19]              Ms Vidal accepted that, on the information before him, it could not be said the Judge had made any error in the sentence imposed. She submitted that, with the s 27 report that had become available, there was now information which indicated such a report should have been obtained before sentencing and, had it been, the ultimate sentence imposed could have been different. She submitted the report provided information as to Mr Matika-Marsh’s mental health difficulties in ways that had not been drawn to the Judge’s attention. She suggested, with the information that had become available, the Judge might have considered calling for a psychiatric report, this might have opened up other potential sentencing options and might have opened up the possibility of a more rehabilitative approach to sentencing.

[20]              Ms Vidal submitted the report provides significant information about Mr Matika-Marsh’s cultural background and suggested the mental health issues referred to have been a significant contributing factor to his offending. She said he advised Police at the time of the crash that he was seeking to take his own life. She submitted the report obtained may have affected not only the discounts available to Mr Matika- Marsh but also the Court’s approach to sentencing. She emphasised Mr Matika- Marsh’s rehabilitative needs, including drug and alcohol treatment, mental health treatment and the assistance he needed through counselling. She submitted, without the full information contained in the cultural report, the Judge was unable to properly consider all available options including intensive supervision or home detention.

[21]              Ms Vidal accordingly contended the appeal should be allowed, the sentence of imprisonment quashed, and Mr Matika-Marsh be readmitted to bail for the District Court to then decide how the s 27 report should be taken into account as to all sentencing options.

Respondent’s submissions

[22]              Mr Chapman, for the Crown, filed written submissions holistically justifying the sentence imposed by the Judge. At the time of filing, Mr Chapman had not

received Ms Vidal’s submissions nor the cultural report. Instead he referred to the notice of appeal which challenged the sentence as manifestly excessive.

[23]              Relevantly, in both written and oral submissions, Mr Chapman emphasised the fact the Judge had regard to Mr Matika-Marsh’s personal circumstances as set out in the pre-sentence report. The 15 per cent discount afforded included credit for these circumstances. Mr Chapman submitted the overall 40 per cent discount (including 25 per cent for Mr Matika-Marsh’s guilty pleas) could not be described as inadequate in the circumstances.

[24]              Mr Chapman accepted there was considerable detail in the s 27 report as to the abusive background Mr Matika-Marsh had suffered. He submitted that the detail did not change the information before the Judge on sentencing which he submitted the Judge had adequately taken into account. He said, with that detail, there was still no suggestion that the Judge had made any error in imposing the sentence he did.

Analysis

[25]              I have carefully read the s 27 report. It provides considerable detail as to Mr Matika-Marsh’s upbringing. It is not based just on self-report. The report writer has obtained information from a number of people in Mr Matika-Marsh’s whānau who are able to corroborate what he said in summary about that upbringing and the way he suffered from it. With the report was a summary of the report writer’s qualifications and experience, also her acceptance that she was providing the report as an expert giving information to the Court for its assistance.

[26]              Ms Vidal described it as one of the most bleak accounts of a family background that she had seen. I would describe it the same way. Nevertheless, I do not consider that, ultimately, it materially altered the information before the Judge which he took into account on sentencing. The Judge referred to the relevant “paragraphs” in the pre-sentence report and the way they were intensely personal to Mr Matika-Marsh. The report referred to Mr Matika-Marsh having previously described to a report writer “a traumatic childhood”, the different forms of abuse he had suffered within “a chaotic and unstable upbringing”, the way he had suffered from this physically but also mentally and emotionally. It referred to the effects that upbringing has had on Mr

Matika-Marsh as an adult as triggers for “his anxiety and depression” and the way, in turn, that led to difficulties in how he regulates and manages his emotions.

[27]              The Judge accepted that, at the time Mr Matika-Marsh turned the steering wheel in his car and veered across to the other side of the road, he was intent on self- harm.

[28]              The Judge also showed how aware he was of Mr Matika-Marsh’s particular mental health challenges and the way his upbringing put him at risk of further offending through the special release conditions the Judge imposed as part of the sentence.

[29]              On all the information that was before the Judge and which is now before me with the s 27 report, I do not consider it likely that, if Mr Matika-Marsh’s sentence was quashed and the matter remitted back to the District Court, the sentencing Judge would come to any different assessment as to Mr Matika-Marsh’s culpability.

[30]              It was never suggested that, in driving as he did, Mr Matika-Marsh intended to harm the victims of the offending in the way that occurred. An intention to harm others is not required for someone to be guilty of causing injury when driving dangerously or with excess blood alcohol while disqualified.

[31]              Although the Judge sentenced Mr Matika-Marsh on the basis he had been attempting to self-harm when he deliberately drove onto the wrong side of the road and towards power poles, Mr Matika-Marsh did miss those poles.

[32]              According to the summary of facts, when spoken to by the Police about what had happened, Mr Matika-Marsh declined to make any comment. Mr Matika-Marsh told the report writer that he could “not fully remember why he got into the vehicle and drove”, only that he was “paranoid” about his partner’s whereabouts and who she was with. Mr Matika-Marsh told the report writer he could remember the journey, he remembers “feeling frustrated, angry and could not deal with everything and wanted to end the feeling” and turned the steering wheel at the last minute.

[33]              The pre-sentence report noted that his offending on 8 August 2021 was linked to his relationship in that he was allegedly driving to the location where his partner was then socialising with her friends.

[34]              While that was referred to as an allegation, the s 27 report refers to the partner telling the report writer that, at the time Mr Matika-Marsh was driving, he was out looking for her as he did not know where she was and was unable to locate her.

[35]              For the vehicle to have hit the curb and to have overturned as it did, Mr Matika- Marsh must have been driving at speed. In deliberately driving onto the wrong side of the road and towards the curb at speed, he risked losing control of the vehicle, it crashing, and then putting anyone nearby at risk. I do not consider there was any error in the Judge describing his actions as being selfish in ways that put others at risk of serious injury or death. The harm that resulted from his offending was serious.

[36]              Mr Matika-Marsh was not being sentenced just for his actions in deliberately veering onto the wrong side of the road. He was also being sentenced because he chose to drive at around 3.15 am, when seriously under the influence of alcohol and after also having used cannabis. He chose to drive while disqualified while on release from a prison sentence for the same offending.

[37]              Just two months earlier, Mr Matika-Marsh appeared in court charged with breach of release conditions.

[38]              The Judge gave Mr Matika-Marsh some credit for remorse and, in particular, his attendance at a restorative justice meeting with the woman who was a victim of his offending and her husband. They were sympathetic to him and he apologised for the damage he had done and the hurt he had caused.

[39]              The pre-sentence report said that, at his first interview with the report writer, Mr Matika-Marsh had displayed his frustrations when discussing the impact the incident could have had on the victims, showed little remorse towards them and, in the report writer’s opinion, “expressed little regard for their wellbeing”. He had questioned “their truth” around the injuries the victims had sustained.

[40]              The summary of facts for the breach of release conditions charges said Mr Matika-Marsh’s attitude towards his sentence and Community Corrections staff had been poor. He had displayed:

… challenging and difficult behaviour, being argumentative and extremely resistant with engaging in focused case work sessions with his probation officer to enable him to reflect and identify for himself how problematic his behaviour is.

…

[Mr Matika-Marsh] has a high sense of entitlement and previously stated he does not [need] to attend any counselling or programmes to address his offending behaviour. He displays a level of aggression in his personal relationship as well as towards Community Corrections staff has been very concerning given his poor ability to regulate his emotions and his problematic offending attitudes and behaviour.

[41]              The restorative justice meeting report said that Mr Matika-Marsh had said that he took full responsibility for what had happened and that he was sorry for the harm the victims had suffered. The restorative justice meeting was on 10 February 2022. Mr Matika-Marsh was sentenced on 2 March 2022.

[42]              On 31 March 2022, Mr Matika-Marsh filed a notice of appeal against conviction and sentence. The notice of appeal was signed by a solicitor but the grounds of his appeal were recorded as “the sentence was manifestly excessive. He disclosed to counsel that he did not wish to plead guilty and disputed the facts.”

[43]              The Judge adopted a total starting point for all the offending of 40 months. The way the Judge arrived at that starting point was not challenged. With reference to uplifts that had been imposed for driving while disqualified in other cases, the Judge considered his uplift of six months for driving while disqualified was generous. I agree the uplift could have been higher.

[44]              The Judge dealt with Mr Matika-Marsh’s previous offending through an uplift to arrive at the starting point for all the offending. There was then a discount of 25 per cent for guilty pleas and 15 per cent for the other matters against that starting point. With that approach, the end sentence was two months less than it would have been if, in accordance with the Moses approach to sentencing, the credits and uplifts had been

taken into account only at the second stage of the sentencing exercise.10 Given the alternative ways in which previous offending can be taken into account, there was no error in the Judge’s approach but, had he not dealt with matters in that way, the sentence could have been two months longer.

[45]              There was no criticism of the sentencing Judge’s refusal to sentence Mr Matika-Marsh to home detention on the information before him. That would have been a rehabilitative sentence and could have been associated with appropriate counselling programmes that might have assisted Mr Matika-Marsh to deal with all his personal issues which put him and others at risk of further serious offending.

[46]              Corrections had concerns about Mr Matika-Marsh serving such a sentence at the address of his partner because of safety and welfare questions arising out of previous domestic incidents and family harm reports received since 2019. Community Corrections’ concerns had increased with Corrections having to consider the wellbeing of the unborn child due on 8 July 2022. Community Corrections were aware of five family harm incidents since 2019 where Mr Matika-Marsh had been the prominent aggressor. They noted the link between his offending on 8 August 2021 and his relationship. Mr Matika-Marsh had also explained that he had driven because he was “paranoid” about where his partner was and who she was with. The partner was the victim of the assault committed on 11 April 2020.

[47]              Mr Matika-Marsh had seven convictions for breaches of community-based sentences and one conviction for breaching court release conditions before the offending for which he was sentenced on 2 March 2022.

[48]              There was some information that suggested there is potential for Mr Matika- Marsh to benefit from the rehabilitative aspects of a sentence. The pre-sentence report indicated that, after he had been charged with breaches of release conditions, he did engage with his probation officer in focused casework sessions and completed a safety plan with his partner to enable him to apply strategies he had learned. His partner is supportive of him and had indicated she was agreeable to his serving a sentence of home detention with her. The pre-sentence report said both she and Mr Matika-Marsh

10     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

are looking forward to having a family life together and focusing on their future together.

[49]              There is information in the s 27 report which would suggests Mr Matika- Marsh’s partner would likely provide pro-social support for him while he is subject to any sentence.

[50]              Nevertheless, there is no information in the s 27 report to suggest the Judge’s assessment of the risks of home detention were overstated because of the support that would likely now be available to Mr Matika-Marsh.

[51]              With the sentence of 24 months’ imprisonment, a short-term sentence, Mr Matika-Marsh will be released after he has served half that sentence. He will then be subject to post-release conditions. Through those post-release conditions, there will be potential for him to engage again with his probation officer and commit to programmes that might help him to reduce the risk of further offending, not just with driving but also family violence. These programmes will need to address the way Mr Matika-Marsh has been damaged by his upbringing.

[52]              It is to be hoped that, when he is released from his current sentence, Mr Matika- Marsh will be able to take advantage of the rehabilitative programmes which should be available to him through Corrections with the support of his probation officer. I direct that a copy of the s 27 report be provided to Corrections to assist with this.

[53]              I can allow the appeal and quash Mr Matika-Marsh’s sentence only if satisfied there was an error in the imposition of the sentence and that a different sentence should be imposed. Ms Vidal has urged me to conclude that, with the information in the s 27 report, I should be satisfied that an error occurred through a s 27 report not having been obtained earlier. She also submits that, with the report, I should be satisfied that a different sentence will be imposed if the matter is remitted to the District Court.

[54]              For all the reasons set out, I have not been satisfied either that there was an error or that a different sentence would be imposed if the appeal was allowed.

[55]Accordingly, Mr Matika-Marsh’s appeal is dismissed.

Solicitors:

Southern Law, Invercargill Crown Solicitor, Invercargill.