Matiu v Police
[2018] NZHC 96
•9 February 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000154 [2018] NZHC 96
BETWEEN MARIE NAWA MATIU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 February 2018 Appearances:
R Wood for the Appellant
S Bicknell Young for the Respondent
Judgment:
9 February 2018
JUDGMENT OF NATION J
[1] Ms Matiu was the volunteer manager of a Māori land trust in the Bay of Plenty. She managed the trust’s accounts and made payments. Between July 2011 and January 2015, she presented cash cheques 31 times, spending most of the money obtained on herself. She used some of the money to help others but this was also for her own benefit in that it was done to increase her mana with the people who benefited from those funds. She was sentenced to 10 months’ home detention on 13 November 2017. She appeals against that sentence.
Principles on appeal
[2] 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 only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
MATIU v POLICE [2018] NZHC 96 [9 February 2018]
be imposed.1 As the Court of Appeal accepted in Tutakangahau v R, an appellate court “will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”, except where there has been an express arithmetical error.2 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3 The focus on an appeal is on the end sentence.4
District Court decision
[3] The Judge began his sentencing with a summary of the nature of the offending mentioning that it involved a breach of trust. He referred to her list of previous convictions and the way they had intensified over the last four years, and that she had a problem with alcohol. He referred to the way she had betrayed her own people, difficulties that she had in her relationship but that she and her husband were now working together and anticipated making reparation payments at the rate of $50 per week.
[4]Against that background, the Judge said:
[5] I do think that a starting point of 18 months’ imprisonment is an initial starting place for me to commence the assessment of what is a suitable penalty but I take into account your plea of guilty and all the other circumstances that have been referred to in the submissions file. I am of the view that a home detention sentence is the most appropriate one and that this should be for a period of 10 months.
Appellant’s submissions
[5] Ms Wood submitted there was an error in calculating the period of home detention in that it was out of step with the general practice of halving the end sentence of imprisonment when making a conversion from an appropriate sentence of imprisonment to home detention. She also submitted that there was an error in that there was no effective credit for guilty pleas for which Ms Mathiu should have received a 25 per cent discount. She also submitted there should have been some
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 Ripia v R, above n 3, at [10].
credit for matters relating to Ms Matiu personally, including the particular remorse she had demonstrated.
Respondent’s submissions
[6] In her submissions, Ms Bicknell Young appeared to accept the Judge had adopted a starting point of 18 months’ imprisonment for the offending. She submitted that there was no requirement for the end sentence of imprisonment to be halved when substituting a period of home detention. That adjustment was not to be made automatically as a requirement of law.
[7] By reference to various cases, she submitted the starting point for the offending could have been two to two and a half years’ imprisonment. She submitted that any credit for personal matters, including such remorse as was shown, and the commitment to pay reparation of $50 per week would be modest. She submitted that, given what could have been an appropriate starting point for the offending, with appropriate credits for guilty pleas and other matters, the end sentence that could have properly been imposed was in the range of 17 to 21 months’ imprisonment. Even if that was halved because of the substitution of a sentence of home detention, the sentence could have properly been within the range of eight and a half to 10 and a half months’ home detention. On that basis, she said Ms Matiu could not demonstrate that the sentence imposed was manifestly excessive.
Discussion
[8] It is not clear that, when the Judge referred to a starting point of 18 months’ imprisonment, he was referring to a starting point sentence having regard to the seriousness of the offending as a first step in the Taueki approach to sentencing.5 It may also have been the starting point he arrived at after allowing for both aggravating and mitigating factors relating to Ms Matiu personally, her previous convictions, particularly over the previous four years, and her offer to pay reparation at the rate of
$50 per week.
5 R v Taueki [2005] 3 NZLR 372 (CA).
[9] That latter approach would have been more consistent with the submission made by the Police prosecutor on sentencing. He had suggested a starting point of 18 months’ imprisonment for the offending, consistent with the High Court judgment of Vea v R,6 but that submission was not entirely consistent with the first step consideration in the Taueki approach. He concluded with a submission that a sentence of 24 months’ imprisonment would have been appropriate allowing for an uplift for Ms Matiu’s previous offending and the submitted gross breach of trust.
[10] For Ms Matiu, Ms Wood had however submitted that a starting point in the range of 18 months was appropriate with full credit for guilty plea but that an electronically monitored end sentence would be appropriate.
[11] Given the way in which the Judge arrived at the sentence, it seems likely that he considered, in the circumstances, a sentence of 10 months’ home detention was appropriate. It is however difficult to relate the sentence to his reference to a starting point sentence of 18 months’ imprisonment.
[12] There is no guideline judgment for fraud-based offending of this sort. In R v Varjan, the Court of Appeal stated:7
Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[13] I have considered the various factors referred to by the Crown and the cases referred to me by both the Crown8 and Ms Matiu’s counsel. In Ashby, Woolford J carefully referred to the circumstances and sentence imposed in a number of relevant cases.
[14] Because on an appeal the focus is on the end sentence and whether it is manifestly excessive, it is appropriate to consider what might have been the range and
6 Vea v R [2014] NZHC 1959.
7 R v Varjan CA97/03, 26 June 2003 at [22].
8 Luoni v Police [2016] NZHC 695; Rako v R [2015] NZCA 463; Ashby v Police [2015] NZHC 1900; Vea v R, above n 6.
a starting point for Ms Matiu’s offending, given her culpability with regard to that offending. Significantly, the offending here involved 31 different incidents of fraud over a period of approximately three and a half years between July 2011 and January 2015. The offending involved a gross breach of trust and a loss to those defrauded to the extent of the $23,691.30 which was taken.
[15] The offending was not sophisticated. As in Vea, it did not have to be because of the trust that the victims had bestowed upon her. Because the offending occurred on a repetitive basis over a significant period of time, a degree of premeditation was involved.
[16] I consider an appropriate starting point sentence for the offending, having regard to its seriousness, would have been in the range of 18 to 22 months.
[17] The sentencing Judge then had to consider whether there should be any uplift or credit for mitigating and aggravating features relating to Ms Matiu personally. Although Ms Matiu had offered to attend a restorative justice meeting with a representative of those who were the victims of her offending, there was nothing before the District Court Judge to indicate she had demonstrated, in a tangible way, true remorse for her offending. She did admit the offending when confronted with it by the Police but this was after the offending had been established through a Court ordered audit of the trust’s affairs. The Police advised the sentencing Judge that Ms Matiu had failed to attend a judicial conference held on 10 October 2016 in relation to the outcome of that audit. The pre-sentence report indicated Ms Matiu was willing to pay reparation but said that she was unable to pay the money in full and could pay the money back in instalments at only $50 per week. She was however ordered to pay reparation of $23,691 at that rate for which she was entitled to some credit, although that had to be modest given that, at that rate, it would take approximately 9 years to repay the total amount she had stolen.
[18] Ms Matiu had taken some steps to address the alcohol problems which were a major factor in her offending, for which she was entitled to some credit. Against that, her offending had continued for a time in 2015, after being involved in alcohol and drug rehabilitation programmes. In 2013 she had convictions for antisocial conduct,
from 2015 for offences of possessing a knife in a public place, assault and wilful damage. She had a third conviction for driving with excess blood alcohol from 2015. She was convicted on separate charges relating to domestic assaults that occurred on 17 September 2016 and had benefited from being sentenced to come up for sentence if called upon. At the time she was sentenced on the theft charges, she was coming to the end of a sentence of two years’ intensive supervision imposed on 25 November 2015.
[19] In all these circumstances, I consider there would have been no error if the sentencing Judge had made no adjustment by way of either uplift or discount for matters relating to Ms Matiu personally.
[20] There was no disagreement between counsel, either at the time of sentencing or on appeal, that Ms Matiu was entitled to a discount of 25 per cent for her timely guilty pleas.
[21] With a starting point sentence between 18 and 22 months’ imprisonment, with a discount of 25 per cent for guilty pleas, the sentence could then have been between 13 and a half and 16 and a half months.
[22] There was no dispute that it was appropriate to substitute a sentence of home detention or that there is a rule of thumb that a sentence of home detention will normally be about one half of what would otherwise have been a prison sentence. On that basis, an appropriate sentence of home detention would have been between approximately six and a half months and eight months. An adjustment to one half of the prison sentence does not have to be exactly half nor should it be automatic.
[23] The Courts have, however, recognised that a sentence of home detention is a custodial sentence. It is a sentence that carries with it real constraints and stresses. There is a significant difference between the sentence imposed here of 10 months’ home detention and what might have been a reasonably available sentence of around eight months.
[24] That difference has been sufficient to persuade me that there was an error in the sentence that was imposed in the District Court and that a different sentence ought to have been imposed. I accordingly allow the appeal, quash the sentence of 10 months’ home detention which was imposed in the District Court and substitute a sentence of eight months’ home detention on all the same conditions as were imposed with the original District Court sentencing.
Solicitors:
Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch.
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