Matika v Police - [2013] NZHC 2806

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-002-000126 [2013] NZHC 2806

BETWEEN TANE RAKANA MATIKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 24 October 2013

Appearances: S Turner for Appellant
R P Bates for Respondent

Judgment: 24 October 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TANE RAKANA MATIKA v NEW ZEALAND POLICE [2013] NZHC 2806 [24 October 2013]

[1] Mr Matika pleaded guilty in the District Court to charges of burglary, unlawfully taking a motor vehicle, assault with a weapon, assaulting his partner and threatening to cause grievous bodily harm. On 26 July 2013, Judge Coyle sentenced Mr Matika to two years two months imprisonment on the charges of burglary and unlawfully taking the motor vehicle. He sentenced Mr Matika to a
cumulative sentence of 14 months imprisonment on the remaining charges.1

[2] Given that the two sets of charges arose out of separate events, the Judge was required to have regard to totality principles in determining whether the end sentence of three years four months imprisonment was excessive. Having undertaken that exercise, the Judge was satisfied that the end sentence was appropriate. He therefore imposed the cumulative sentences to which I have referred.

[3] Mr Matika appeals against sentence. He contends that the Judge erred in principle in formulating the sentences imposed on the charges of burglary and unlawfully taking a motor vehicle. He does not cavil with the cumulative sentence the Judge imposed in relation to the remaining charges.

Facts

[4] The facts that led to the burglary and unlawful taking charges were contained in a summary of facts with which Mr Matika took no issue at sentencing. They record that Mr Matika and his cousin were drinking with associates during 24 and
25 November 2012. An argument developed, and they were asked to leave the address at which they had been drinking. They then left that address, and decided to walk to another friend’s house. En route, they decided to have a look at a new speedway track being built in the area. They crawled under a fence at the speedway, and approached several vehicles belonging to contractors that had been left on the site. They found a truck with the keys in the ignition, and climbed into it. Mr Matika and his cousin then took turns driving the vehicle around the speedway track.

[5] Whilst Mr Matika’s cousin was driving the vehicle, he rolled it onto its side.

Mr Matika and his cousin then poured petrol and diesel into the cab of the vehicle in

1 Police v Matika DC Alexandra CRI-2013-002-000126, 26 July 2013.

an effort to destroy any forensic evidence attaching them to the incident. They then left the speedway, and then went to a nearby house. Mr Matika’s cousin then burnt his clothing in order to destroy any evidence linking him to the offending.

The structure of the sentence

[6] The Judge classed Mr Matika as a recidivist offender in terms of the principles referred to in Senior v…

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.

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Details

Case: [2013] NZHC 2806
Decision Date: 24 October 2013

CaseChat Overview and Summary

Mr Matika appealed against the sentence imposed on him by the District Court Judge. He contended that the Judge erred in principle in formulating the sentences imposed on the charges of burglary and unlawfully taking a motor vehicle. The High Court considered the sentencing principles and the methodology used by the District Court Judge. The High Court found that the Judge erred in applying an uplift to the starting point once he had fixed it using the Senior methodology, effectively double-counting the existence of Mr Matika's previous convictions. The High Court considered the issue of sentence afresh, taking into account the nature of the offending and the aggravating and mitigating factors. The Court concluded that the sentence imposed by the Judge was manifestly excessive and reduced the sentence to one year nine months imprisonment on the unlawful taking and burglary charges. The appeal against sentence was allowed, and the sentences imposed by the Judge were quashed.

The final orders were that the sentences of two years two months imprisonment were quashed, and in their place, sentences of one year nine months imprisonment were imposed on the unlawful taking and burglary charges. These sentences were to be served concurrently with each other but cumulatively on the sentence imposed by the Judge on the remaining charges.

Orders