Matiu v Police - [2018] NZHC 96

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…

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.

Continue reading Matiu v Police

Details

AGLC: Matiu v Police [2018] NZHC 96
Case: [2018] NZHC 96
Decision Date: 9 February 2018

CaseChat Overview and Summary

The appellant, Marie Nawa Matiu, was the volunteer manager of a Māori land trust in the Bay of Plenty. Between July 2011 and January 2015, she embezzled funds from the trust's accounts, spending the majority of the stolen money on herself. She was sentenced to 10 months' home detention by the District Court on 13 November 2017, and she appeals against that sentence. The appeal raises questions about the appropriate sentence for the appellant's offending, including whether the District Court made an error in imposing a sentence of 10 months' home detention. The appeal also considers whether the District Court properly applied the principles of sentencing and whether the sentence imposed was manifestly excessive.

The Court considered the principles of sentencing, including the starting point sentence for the offending, and the appropriate discount for the appellant's guilty pleas. The Court also considered the mitigating and aggravating factors relating to the appellant personally, including her remorse and her offer to pay reparation at the rate of $50 per week. The Court found that the starting point sentence for the offending was between 18 and 22 months' imprisonment, and that the discount for guilty pleas was 25 per cent. The Court also found that there was no error in the District Court's decision not to make any adjustment for mitigating and aggravating factors relating to the appellant personally. The Court concluded that an appropriate sentence of home detention would have been between approximately six and a half months and eight months, and that the difference between the sentence imposed and what might have been a reasonably available sentence of around eight months was sufficient to persuade the Court that there was an error in the sentence that was imposed in the District Court.

The Court allowed the appeal, quashed the sentence of 10 months' home detention which was imposed in the District Court, and substituted a sentence of eight months' home detention on all the same conditions as were imposed with the original District Court sentencing.

Orders