Matika v Police
[2013] NZHC 2806
•24 October 2013
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 Police.2 He did so because Mr Matika has several previous convictions for burglary. He was convicted of burglary on three occasions in 2003. During that year he was also convicted of unlawfully taking a motor vehicle. Earlier, he had been convicted in the District Court on charges of burglary and unlawfully taking motor vehicles in 2000. He was then convicted of burglary on
14 March 2011, and received a sentence of six months imprisonment on that occasion. He was also sentenced to ten months imprisonment on a charge of burglary on 30 July 2010.
[7] The Judge considered that Mr Matika’s previous convictions meant that he fell within category 2 identified in Senior.3 Starting points for offending in this band will generally be between one and three years imprisonment. The Judge selected a starting point of two years imprisonment to reflect Mr Matika’s present offending and his previous convictions.
[8] The Judge then added an uplift of nine months to reflect Mr Matika’s previous convictions for burglary and unlawfully taking motor vehicles. This left him with an end starting point of 33 months imprisonment. He applied a discount of seven months, or approximately 20 per cent, to reflect Mr Matika’s guilty pleas. This produced the end sentence of two years two months imprisonment. As already noted, the Judge imposed that sentence cumulatively on the 14 month sentence
imposed on the remaining charges.
2 Senior v Police (2000) 18 CRNZ 340 (HC).
The argument
[9] Counsel for Mr Matika contends that the Judge erred in the manner in which he applied the principles referred to in Senior v Police. He points out that Senior permits the Court fix a starting point having regard to previous convictions. Given that previous convictions are taken into account at this stage of the sentencing exercise, he contends that the Judge erred in applying a further uplift of nine months having fixed on a starting point of two years imprisonment.
Decision
[10] The issue raised in this appeal is not without some difficulty. This arises as a result of the fact that in some cases the District Court and High Court continue to employ the approach referred to in Senior in relation to sentencing of offenders who are charged with burglary. In other cases, however, the courts use the approach to sentencing taken by the Court of Appeal in R v Taueki.4 This requires the Court to fix a starting point that relates to the culpability of the offending, and does not take into account factors personal to the offender. The existence of previous convictions may then be reflected in an uplift applied to the starting point to reflect that factor.
[11] Duffy J discussed the issue that the two approaches produce in Blissett v
Police,5 where she said:
[35] There are appellate decisions in this Court that still apply the approach taken in Senior, whereas others prefer a Taueki approach. Provided the offending is offending of a type that would attract a sentence of imprisonment, irrespective of the offender’s past record for burglaries, and provided there is no double counting of that record, the outcome is likely to be the same, whichever approach is adopted. On a Senior approach, the starting point will be higher than with a Taueki approach, but the latter would then require an adjustment to take into account past burglaries as an aggravating feature of the offender. So by the time the Judge comes to turn his or her mind to other relevant considerations, the point from which he or she will undertake this exercise will be much the same. However, the difficulty with a Taueki approach comes when the Judge is faced with a burglary which, when looked at without regard to the offender, might not lead to a sentence of imprisonment. The methodology of Taueki does not allow for starting points that are something less than a sentence of imprisonment, with a move to imprisonment only coming once aggravating features of the offender such as criminal history are taken into account. To
4 R v Taueki [2005] 3 NZLR 372 (CA).
attempt something like that starts to look as if the offender is being penalised for his or her past offences. There is no easy solution to this problem.
[12] In the present case, I consider that the Judge erred in applying an uplift once he had fixed the starting point using the Senior methodology. In doing so, he effectively double-counted the existence of Mr Matika’s previous convictions. That must be the case, given that his previous convictions were a factor necessarily taken into account when the Judge fixed the starting point of two years imprisonment.
[13] The Court of Appeal discussed this issue in Columbus v Police.6 In that case the Court did not disapprove of the approach taken in Senior. It emphasised, however, that sentencing courts need to take care not place undue emphasis on previous convictions when fixing the starting point to be imposed on offenders convicted of burglary.
[14] The Court said that the principal enquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[15] Given the error inherent in the Judge’s approach, I propose to consider the
issue of sentence afresh.
The sentence revisited
[16] The burglary was opportunistic and involved no premeditation. It did not involve forcible entry into an address. Rather, Mr Matika and his cousin climbed under a fence. They were not required to break into the truck because it was open and the keys were in the ignition. The property in question was not removed from the premises.
[17] Mr Matika’s offending did not involve forcible entry into a commercial or residential address. Rather, Mr Matika and his cousin climbed under a fence. They were not required to break into the truck, because it was unlocked and the keys were
in the ignition. The truck was not removed from the premises.
6 R v Columbus [2008] NZCA 192.
[18] In those circumstances, many of the aggravating factors present in the burglary of residential and commercial premises are absent. For that reason, I consider that a starting point of no more than 12 months imprisonment would ordinarily have been warranted on the charges of burglary and unlawfully taking the vehice.
[19] There is, however, an added factor to be taken into consideration. The offending caused significant damage to the truck. Although the prosecution only sought reparation in the sum of $500, the value of the damage to the vehicle has been estimated as being between $9000 and $14,000. That factor obviously aggravates the offending, and warrants discrete recognition. I consider that an uplift of nine months would be appropriate to reflect that fact. This would leave an end starting point of 21 months imprisonment before taking into account the aggravating factor of Mr Matika’s previous convictions.
[20] Mr Matika now has a reasonably significant number of previous convictions, although I accept that many of them can be regarded as relatively historic. Important for present purposes, however, are the convictions in 2010 and 2011 for which Mr Matika received sentences of imprisonment. His present offending is made more serious by the fact that he has ignored the lesson to be learned from these two convictions. I consider that an uplift of around six months would be appropriate to reflect previous convictions. This would leave an end starting point of 27 months imprisonment before taking into account the mitigating effect of Mr Matika’s guilty pleas.
[21] Counsel for Mr Matika urged the Judge to apply a discount of 25 per cent to reflect Mr Matika’s guilty pleas. Mr Matika was charged in November 2012, and ultimately pleaded guilty in February 2013. His counsel points out that the Court only sat in Alexandra on two occasions between November 2012 and February 2013. In addition, negotiations between Mr Matika and his counsel for the prosecution were ongoing. This resulted in one charge being withdrawn when Mr Matika entered his guilty pleas. Notwithstanding these factors, the Judge considered that Mr Matika had not entered his guilty pleas at the earliest opportunity and was not prepared to apply a discount of more than 20 per cent to reflect the guilty pleas.
[22] I do not propose to differ from the Judge’s approach in this respect. Mr Matika and his cousin were apprehended shortly after the incident, and readily acknowledged their involvement in it. For that reason Mr Matika could not therefore realistically claim full credit for his guilty pleas. Applying the same factor as the Judge, I would reduce the sentence of 27 months imprisonment by six months to reflect Mr Matika’s guilty pleas. This produces an end sentence of 21 months imprisonment.
[23] Given the fact that this is five months less than the sentence ultimately imposed by the Judge, I reach the view that the sentence he imposed was manifestly excessive. It was produced, as I have already indicated, by the application of a further uplift to reflect previous convictions notwithstanding the fact that the Judge had employed the Senior approach in fixing the starting point.
Result
[24] The appeal against sentence is allowed. The sentences of two years two months imprisonment are quashed. In their place I impose sentences of one year nine months imprisonment on the unlawful taking and burglary charges. Those sentences are to be served concurrently with each other, but cumulatively on the
sentence imposed by the Judge on the remaining charges.
Lang J
Solicitors:
Crown Solicitor, Dunedin
Counsel:S Turner, Dunedin
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