Matika v Police

[2017] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2017-463-25 [2017] NZHC 1819

BETWEEN

PETER EDWARD MATIKA

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 August 2017
Counsel:	R Vigor-Brown for Appellant A Gordon for Respondent
Judgment:	2 August 2017

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

R Vigor-Brown, Rotorua

MATIKA v NEW ZEALAND POLICE [2017] NZHC 1819 [2 August 2017]

Introduction

[1]      On 15 July 2016, in the District Court at Tokoroa, Mr Matika entered guilty pleas to one charge of wounding with intent to injure, one of threatening to do grievous bodily harm, one of male assaults female, one of accessing a computer for a dishonest purpose, one of wilful damage and two of breaching release conditions.

[2]      Before  entering  those  guilty  pleas,  Mr  Matika’s  counsel  had  asked  the presiding Judge to give a sentence indication.  That request arose in the context of an application for electronically monitored bail that was before the Judge at that time. The Judge gave an indication and, as a result, Mr Matika decided to enter his pleas.

[3]      Judge  MacKenzie,  in  sentencing  Mr  Matika,  imposed  an  effective  end sentence of two  years and two months imprisonment.1     In addition, Mr Matika received a First Strike warning.2

Application to extend time to appeal

[4]      Mr Matika seeks an extension of time to appeal against sentence.  The need for an extension of time springs from the fact that the sentencing took place on 15

July 2016 and the appeal was not filed until 25 July 2017.  That was well outside the period of 20 working days permitted by s 231(2) of the Criminal Procedure Act

2011. This Court has power to extend time by virtue of s 231(3).

Analysis

[5]      The lead charge for sentencing purposes involved events that occurred on 27

May 2016.   There were earlier offences to which guilty pleas were entered that occurred on 8 May and 22 June 2015; the latter involved accessing of the computer system for a bank account in order to change automatic payments being made by persons known to Mr Matika.   The events of 27 May 2016, involved domestic

violence.

1      New Zealand Police v Matika [2016] NZDC 13486, at para [21].

2      Ibid, at paras [26] and [27].

[6]      Mr Vigor-Brown, for Mr Matika, has drawn my attention to what he submits are  discrepancies  in  the  facts  on  which  the  District  Court  Judge  was  asked  to sentence and those arising out of statements given by the complainant at the time and other variations on what occurred that Mr Vigor-Brown has elicited from Mr Matika since he first obtained instructions in February 2017.

[7]      I propose to consider the nature of the issues raised by Mr Vigor Brown.  I do so because the length of time that has passed between sentencing and the filing of the appeal means that if an extension of time to appeal were to be granted, there would need to be a strong case on the merits for doing so.

[8]      The first factor concerns the nature of the altercation that occurred on 27 May

2016.   The summary of facts presented to the District Court Judge suggested that Mr Matika had been the aggressor throughout, and that at one stage, the complainant had attempted to talk to Mr Matika in a civil manner before he attacked her with a blunt object that rendered her unconscious.

[9]      The  new  position  advanced  by  Mr Vigor-Brown  is  that  the  complainant initially assaulted Mr Matika and provoked excessive self-defence on his behalf. Mr Vigor-Brown accepts that, on any view, the defence of self-defence would not have been available.

[10]     Secondly, Mr Vigor-Brown refers to the complainant’s statement, in which she says she went back to argue with Mr Matika.  In contrast, the summary of facts suggests that she spoke to him in a “civil” manner.  Finally, Mr Vigor-Brown refers to the complainant’s statement that she was “dazed,” as opposed to the unconscious state to which the summary refers.

[11]     Even accepting for the moment that there are sufficient discrepancies in those factual assertions to justify reconsideration of the starting point taken by the sentencing Judge, I do not consider that it is seriously arguable that the end sentence fell outside the range available to her.

[12]     I mention three aspects of the sentencing in relation to that:

(a)      The first is that the Judge provided a credit of 15% to reflect Mr Matika’s serious health condition at the time.  The Judge was aware that he was in “end stage heart failure”.  Correctly, in my view, the Judge described the credit given as something of an “outlier”.  Having regard to various authorities that deal with the circumstances in which a reduction of a prison sentence will be given due to an unusual or serious medical condition or through the exercise of mercy generally,

that was a fair assessment of the situation.3

(b)      The second concerns the credit given by the Judge for the guilty plea.

The Judge gave a full credit of 25%. As a number of the charges were historical in nature, it could not be said that pleas were entered promptly to all charges.   In that situation, a credit of 25% for the guilty pleas was generous.

(c)      The third concerns the likely impact of a view based on excessive self-defence if the appeal were allowed and the charges remitted for a disputed fact hearing.  On the best case available to Mr Matika, there may be some adjustment downward in the starting point taken.  But, given the issues I have raised in relation to the credits for mitigating factors, it is not seriously arguable that the end sentence imposed is

manifestly excessive.4

[13]     In  those  circumstances,  both  because  of  the  absence  of  any  detailed explanation for the delay in bringing the appeal and the unlikelihood that an appeal could succeed, I decline to extend time for the appeal to be brought.

[14]     I add that Mr Matika is now eligible for parole.  The circumstances to which I have referred will no doubt be taken into account by the Parole Board when it assesses risk (his or otherwise) to the community, in determining whether to grant or refuse  parole.     Mr Matika’s  current  state  of  health  will  also  be  a  relevant

consideration in assessing that risk.

3      For example, see R v Jarden [2008] 3 NZLR 612 (SC), R v Verschaffelt [2002] 3 NZLR 772 (CA) and R v Luce [2007] NZCA 476. See also, s 8(h) of the Sentencing Act 2002.

4      See, Tutakangahau v R [2014] 3 NZLR 482 (CA).

Result

[15]     For those reasons, I dismiss the application to extend time to appeal.

P R Heath J