Matkovich v Police
[2021] NZHC 1660
•7 July 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-33
[2021] NZHC 1660
BETWEEN RUEBEN MATKOVICH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 July 2021 Appearances:
K Snelgar for the Appellant K Whyte for the Respondent
Judgment:
7 July 2021
JUDGMENT OF GAULT J
Solicitors / Counsel:
Mr K Snelgar, Barrister, Manukau City
Mr K Whyte and Mr J Williams, Hamilton Legal, Office of the Crown Solicitor, Hamilton
MATKOVICH v POLICE [2021] NZHC 1660 [7 July 2021]
Introduction
[1] Mr Matkovich appeals his sentence of four years’ imprisonment imposed by Judge N D Cocurullo on 1 December 2020,1 following guilty pleas on the following charges:
(a)two charges of aggravated robbery;2
(b)one charge of assault with a weapon;3 and
(c)six charges of unlawfully taking a motor vehicle.4
[2] Mr Matkovich appeals on the basis that the sentence was manifestly excessive as the Judge erred by:
(a)adopting a starting point that was too high, including by imposing an impermissible uplift for the vehicle related offending;
(b)imposing uplifts for Mr Matkovich’s prior Youth Court notations and for offending while subject to a Youth Court order; and
(c)applying a youth discount that was too low.
The offending
Unlawfully taking a motor vehicle – Mazda MPV GCS900
[3] On 13 July 2020, Mr Matkovich and three co-offenders stole a Mazda MPV station wagon from a street in Rototuna. The vehicle was subsequently located on another street in Rototuna.
1 R v Matkovich [2020] NZDC 25070.
2 Crimes Act 1961, s 235(b). Maximum penalty of 14 years’ imprisonment.
3 Crimes Act 1961, s 202C. Maximum penalty of five years’ imprisonment.
4 Crimes Act 1961, ss 226(1) and 66(1). Maximum penalty of seven years’ imprisonment.
Unlawfully taking a motor vehicle – Nissan Tiida KWS3
[4] Later that same day, Mr Matkovich went with the same group to a different street in Rotutuna. They stole a Nissan Tiida that was parked on the street and drove it to the Rototuna Food Mart.
Aggravated robbery – Rototuna Food Mart
[5] At around 8:15 pm, the group entered the Rototuna Food Mart. The shop was open for customers and the shop owner was standing behind the counter. The group had their faces covered to hide their identity. One of the members of the group was wielding a hockey stick. Members of the group tried to jump over the shop counter to get to the cigarette cabinet. Other members of the group grabbed the cash register and ripped it from the counter. The shop owner tried to prevent the cash register from being taken. One member of the group swung the hockey stick at the shop owner, but missed. The group exited the shop with the cash register and $800 in cash. They drove away to a nearby street in the stolen Nissan Tiida.
Unlawfully taking a motor vehicle – Subaru Impreza EMY24
[6] The group discarded the Nissan Tiida on a street in Huntington. They then broke into a Subaru Impreza that was parked on the side of the road. The ignition of the vehicle was damaged in the process of starting the engine. They drove to Hillcrest. They were captured on CCTV footage entering the Cambridge Road Dairy. None of the group had their faces covered, nor carried weapons. The group walked in as the shopkeeper was closing the dairy. They observed him putting the cash register drawer in the Lotto cabinet. One member of the group pulled the cash drawer out of the cabinet and gestured to the shop attendant that he could easily take it. He then returned the till to the cabinet. The group then left without further incident.
Unlawfully taking a motor vehicle – Subaru Impreza FKA853
[7] At about 5:00 pm the following day, 14 July 2020, Mr Matkovich and all five of his co-offenders abandoned the Subaru Impreza at the Melville Skate Park car park. The group found another Subaru Impreza in the car park and broke into it. They then drove to The Base shopping centre.
Unlawfully taking a motor vehicle – Honda Civic GHY565
[8] The group abandoned the second Subaru Impreza in the underground car park of the shopping centre. They then broke into a Honda Civic and used it to drive to the Hamilton Lake area. At the lake, one member of the group tried to use a screwdriver to break into a Mazda MX5. The owner of the car was inside it at the time. Upon realising this, the group left the area in the Honda Civic.
Unlawfully taking a motor vehicle – Mazda Familia DUA126
[9] The group drove to the Hillcrest area, where they broke into a Mazda Familia. Some members of the group damaged the ignition and drove the vehicle from the area. The rest of the group remained in the Honda Civic.
Aggravated robbery – Cambridge Road Dairy
[10] Then travelling in both the Mazda Familia and Honda Civic, the group returned to the Cambridge Road Dairy. Both vehicles arrived outside the store at the same time. Mr Matkovich and two co-offenders entered the dairy with their faces covered. Mr Matkovich was armed with a hockey stick. He swung the hockey stick and hit the staff member behind the counter on the wrist. The staff member ran from the area. He later required medical treatment for his arm. The group jumped over the counter and took cigarettes and tobacco from the cigarette cabinet. They then ran from the store.
Aggravated Robbery – Thirsty Liquor
[11] While Mr Matkovich and the two co-offenders were robbing the dairy, the other three members of the group robbed a nearby Thirsty Liquor store. Mr Matkovich was not directly involved in this aggravated robbery and was not charged for it.
Assault with a weapon
[12] The owner of a nearby fish and chip shop came outside holding a plastic chair and challenged the group. The offender wielding the screwdriver attacked the fish and chip shop owner, knocking him to the ground. While the victim was on the ground,
Mr Matkovich approached the victim from his blind side and swung the hockey stick at him. He narrowly missed the victim’s head. The victim was hospitalised for the injuries caused by the co-offender. The group got into the two vehicles and left the area. A short time later both vehicles were located by police in Bader. Alcohol and cigarettes were located in one of the vehicles.
[13] At around 10:30 pm that night, a police patrol saw two males matching the description of two of the offenders walking down a street in Bader. The offenders ran away, and a police dog tracked them to one of the offender’s home address. A search of that address located cigarettes and tobacco matching what was taken from the Cambridge Road Dairy, cash drawer, and clothing matching that worn by some of the offenders during the robberies.
District Court sentencing
[14] Judge Cocurullo identified the lead offence as the aggravated robbery of the Cambridge Road Dairy. The Judge considered that the aggravating features were the number of participants, a degree of planning and premeditation, the wearing of disguises, the actual violence and the use of weapons. The Judge adopted a starting point of five years’ imprisonment with reference to R v Mako,5 treating the charge of assault with a weapon as an aggravating feature of the aggravated robbery.
[15] The Judge applied uplifts of 14 months for the second aggravated robbery, and six months for one of the charges of unlawfully taking a motor vehicle. Mr Matkovich was convicted and discharged of the remaining charges of unlawfully taking a motor vehicle, and on the charge of assault with a weapon. The total starting point was therefore six years and eight months’ imprisonment.
[16] The Judge then turned to the factors personal to Mr Matkovich. The Judge applied uplifts of five per cent for Mr Matkovich’s offending while subject to a Youth Court order, and 10 per cent for prior Youth Court notations for similar offending. The Judge applied discounts of 15 per cent for Mr Matkovich’s youth (cancelling out the uplifts), 25 per cent for his early guilty plea, and 15 per cent for his personal
5 R v Mako [2000] 2 NZLR 170 (CA).
circumstances – including his diagnosis of foetal alcohol spectrum disorder (FASD) and personal care and protection issues. This produced a net discount of 40 per cent. The Judge therefore sentenced Mr Matkovich to four years’ imprisonment.
Leave to appeal out of time
[17] Mr Snelgar, for Mr Matkovich, applied for leave to file this appeal out of time. He stated that the main reason for the delay in filing the notice of appeal was that the sentencing for one of Mr Matkovich’s co-offenders (Mr Kaweroa) occurred in March this year. The result of that sentencing gave rise to Mr Matkovich’s desire to appeal. The Crown does not oppose leave.
[18]In the circumstances, I grant leave to appeal out of time.
Approach on appeal
[19] To succeed on an appeal against sentence, the appellant must satisfy the appeal Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.7 The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle. The appeal Court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.8
Starting point
[20] No issue is taken with the Judge’s starting point of five years’ imprisonment, having regard to the guideline judgment in Mako.9 Mr Snelgar submitted that the Judge should have applied an uplift of only 12 months for the second aggravated robbery. I consider that the uplift of 14 months was well within range having regard
6 Criminal Procedure Act 2011, s 250(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15]; and Kumar v R [2015] NZCA 460 at [81].
9 R v Mako [2000] 2 NZLR 170 (CA).
to totality. In R v Elliott, the Court of Appeal described a two year uplift for a second aggravated robbery as modest.10
[21] The primary issue in relation to the adjusted starting point is whether the six month uplift for the unlawful taking of a motor vehicle was permissible. Mr Snelgar submitted the Judge should not have imposed that uplift because s 18 of the Sentencing Act 2002 (the “Act”) provides that persons under 18 years of age cannot be sentenced to imprisonment unless they are being sentenced for a category 4 offence or a qualifying category 3 offence. Mr Snelgar submitted that applies to the assault with a weapon charge as well, albeit there was no uplift for that charge – it was treated as an aggravating feature of the lead charge. He relies on the decision of this Court in Fonua v Police.11 This prohibition on uplift was accepted by the District Court when sentencing Mr Matkovich’s co-accused.12
[22] Mr Whyte, for the Crown, submitted that notwithstanding s 18 of the Act and the decisions of this Court in Police v Moala and Fonua v Police prohibiting an uplift where a separate sentence for the offending could not be one of imprisonment,13 it is open to this Court on appeal to depart from that approach. He submitted that when sentencing offenders younger than 18, a sentencing court should be permitted to take into account the wider circumstances of the offending. Aggravated robbery offending is commonly facilitated by the use of stolen vehicles and violence. The wider actions of an offender appropriately inform the Court’s consideration of the seriousness of any given aggravated robbery offending. He submitted the terms of s 18 should not preclude the Court from taking into account associated actions of an offender in appropriately reflecting the seriousness of an aggravated robbery. He submitted that, based on the approach in Moala and Fonua, if two youth offenders committed similar offending, an offender who was charged with both aggravated robbery and associated offending could benefit from a lesser sentence than an offender charged only with aggravated robbery (whereby the Court would consider the full factual background to the offending in fixing a starting point). He submitted the Judge’s approach in this
10 R v Elliott [2018] NZCA 526 at [10]-[11].
11 Fonua v Police HC Auckland CRI-2009-404-341, 22 February 2010.
12 R v Kaweroa [2021] NZDC 10585 at [18].
13 Police v Moala [2008] DCR 70 (HC); and Fonua v Police HC Auckland CRI-2009-404-341, 22 February 2010.
case is consistent with the application of s 9 of the Act (considering aggravating and mitigating factors of offending).
[23] In any event, Mr Whyte submitted the starting point of six years and eight months’ imprisonment was within the range available to the Judge.
[24]Section 18(1) of the Act provides:
No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, if, at the time of the commission of the offence, the offender was under the age of 18 years.
[25] In Police v Moala, Harrison J considered the effect of s 18 when sentencing a youth offender for five aggravated robberies and 27 other charges, including two of unlawfully taking a motor vehicle.14 Harrison J said:
[53] The Judge apparently accepted the Crown’s submission that he could treat the summary offending as an aggravating feature under s 9(1)(j) as being convictions for which Mr Moala was being sentenced or otherwise dealt with at the same time (but as Ms Ryan emphasises, he did not accord them weight in the sentence actually imposed). I respectfully disagree. The statutory prohibition against imposing sentences of imprisonment for summary offences is absolute: s 18. (I agree, though, with the Judge’s condemnation of that result). If taken into account in the way the Crown submits, the summary offences would inevitably increase the starting point, thereby constituting terms of imprisonment. This would be a backdoor means of frustrating a clear legislative intent. In my judgment the proper place for Mr Moala’s subsequent offending in this context lies in diminishing any allowance for prospects of rehabilitation.
[26] Fonua v Police involved an appeal where the District Court Judge had sought to distinguish Moala on the basis it applied to extraneous unrelated matters rather than a connected series of events.15 Allan J said it was not open for the District Court Judge to distinguish Moala, which Allan J said was plainly right.16 He continued:
[25] As a necessary consequence of the prosecution decision to reduce the charge for the first offence from aggravated robbery to robbery, it followed that the sentencing Judge would be precluded from imposing a custodial sentence on that charge, whether directly or indirectly. The Judge was therefore wrong to impose a 12 month uplift.
14 Police v Moala [2008] DCR 70 (HC) at [1]-[2].
15 Fonua v Police HC Auckland CRI-2009-404-341, 22 February 2010 at [19].
16 At [24].
[27] The learned authors of Adams on Criminal Law provide gentle support for Mr Whyte’s submission when they state that:17
Arguably additional offences for which the [youth] offender is being sentenced at the same time as the lead offence may be treated as an aggravating factor and result in an uplift in the length of the prison sentence for that offence even if the additional offences cannot themselves be the subject of a prison sentence.
[28] Section 18 explicitly precludes imposing a sentence of imprisonment for a category 3 offence with a maximum penalty of less than 14 years’ imprisonment committed when the offender was under 18. Two questions arise:
(a)whether s 18 precludes an uplift to lead offending for such a category 3 offence (as occurred here in relation to the vehicle charge); and
(b)whether s 18 precludes taking into account such offending even as an aggravating feature of the lead offending (as occurred here in relation to the assault with a weapon charge).
[29] I have some sympathy for the Crown’s position, as did Harrison J in Moala. But I agree that treating s 18 as not applying to uplifts for associated offending would be a backdoor means of frustrating a clear legislative intent. Imposing an uplift is tantamount to imposing a sentence of imprisonment. While I agree the Judge’s approach in this case is consistent with the application of s 9, and s 8(a) requires the Court to assess culpability, I do not consider those provisions prevail over s 18 or require it to be read narrowly. I therefore consider the Judge was wrong to impose a six month uplift for the unlawful taking of a motor vehicle.
[30] I accept the Crown’s submission, however, that s 18 should not be interpreted as precluding the sentencing Court from taking into account the wider circumstances of the offending. I consider that s 18 does not go so far as to preclude the sentencing Court from taking into account aggravating features of an aggravated robbery in accordance with Mako, even though those features may be the subject of separate
17 Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA18.01].
charges for which s 18 precludes a sentence of imprisonment. Taking into account a feature of an aggravated robbery when setting a starting point for the aggravated robbery offence does not amount to imposing a sentence of imprisonment for that feature. The features of offending are assessed in the round. As Mr Snelgar acknowledged, the use of violence in a robbery is appropriately taken into account as an aggravating feature, at least where there is a sufficient link between the violence and the robbery. Harrison J was dealing with convictions under s 9(1)(j) and I do not consider he was suggesting s 18 precludes consideration of any aggravating feature that might amount to a separate offence. Thus, the Judge was entitled to treat the assault with a weapon as an aggravating feature of the lead aggravated robbery offending and take it into account in fixing the starting point. In the same way, associated offending such as vehicle conversion, detention or abduction of victims, and hostage taking is an aggravating feature of aggravated robbery,18 and the Judge could also have treated the associated offending of unlawfully taking a vehicle as a feature of the aggravated robbery in fixing the starting point. As Mr Whyte submitted, vehicle conversion may indicate a degree of planning – itself an aggravating feature. If there is a separate charge, conviction and discharge, without uplift, avoids the s 18 issue. This should address Mr Whyte’s concern about consistency whether or not a person charged with aggravated robbery is charged with the associated offending.
[31] Thus, the question is whether the Judge’s overall starting point of six years and eight months’ imprisonment was justified even without the six month uplift. Mr Snelgar referred to Maiko v R (seven year starting point for three aggravated robberies),19 Anderson v R (seven year starting point for one aggravated robbery
18 R v Mako [2000] 2 NZLR 170 (CA) at [45].
19 Maiko v R [2020] NZHC 2958. The appellant was sentenced for three aggravated robberies, and driving offences. The first aggravated robbery of a petrol station involved the appellant holding the victim against a wall while his associate took cash from the till. The second aggravated robbery involved the appellant threatening the Duty Manger of a bar with a switchblade knife while his associate took cash from the till. The third aggravated robbery of a different petrol station involved the appellant threatening a staff member with the switchblade knife, and forcing that staff member to hand over cash and cigarettes. A starting point of seven years’ imprisonment was adopted for these charges and was not challenged on appeal.
involving firearm, detention and a large sum, but lesser role),20 and R v Soane (six year starting point for two aggravated robberies, with a further two year uplift for assault with intent to rob a third store).21
[32] I accept this case is less serious than Maiko and Anderson. Having regard to the aggravating features of the offending already identified, and given that the uplift for the second aggravated robbery here could have been higher, I consider an overall starting point of six and half years’ imprisonment would have been appropriate.
[33] That would also see sufficient starting point parity with Mr Matkovich’s co-offender, Mr Kaweroa, whose starting point of six years imprisonment for one aggravated robbery included a 12 month uplift for a charge of wounding with intent to cause grievous bodily harm.22 He participated in the robbery of the liquor store next to the Cambridge Road Dairy and struck the fish and chip shop owner several times to the head, shoulder and arm with a screwdriver upon exiting the liquor store.
Personal aggravating and mitigating circumstances
[34] Mr Snelgar submitted that the Judge erred by applying an uplift of 15 per cent for Mr Matkovich’s previous Youth Court notations for similar offending and for
20 Anderson v R [2019] NZCA 294. The appellant was a “secondary party” involved in the aggravated robbery of a store. Cash and cheques to a value of over $27,000, and some 300 items of jewellery valued at more than $242,000 were taken. The appellant’s primary role was to maintain guard over the victims. The appellant’s culpability was therefore lesser than that of his co-offender, who among other things had taken the lead role in the robbery and threatening the victims with a firearm. The Court of Appeal adopted a starting point of seven years’ imprisonment, which was the same as that of the co-offender notwithstanding their differing culpability.
21 R v Soane [2018] NZDC 12482. The defendant was sentenced on two charges of aggravated robbery, one charge of wilful damage and one charge of assault with intent to rob. The first aggravated robbery involved the defendant and an associate robbing a superette of cigarettes, cash and the victim staff member’s cellphone. The defendant threatened the victim with a crowbar, kicked him three times to the leg and punched him twice to the head. The next aggravated robbery involved the defendant making a plan with four others to rob a superette for cigarettes. The defendant was armed with a crowbar and repeatedly struck a merchandise stand with it to scare away the victim staff member. He then loaded cash and cigarettes into a rubbish bag. A third attempted robbery involved the defendant and three associates entering a store armed with lengths of wood. The defendant grabbed a victim by the beard and sweatshirt and dragged him inside the store, where an associate struck him with a piece of wood. The other victims managed to defend themselves with brooms and drive the offenders out of the store before anything was taken. The Judge adopted a starting point of four years’ imprisonment for the first aggravated robbery, and uplifted that by two years for the second. The Judge also applied an uplift of two years for the charge of assault with intent to rob (there was no uplift for the wilful damage charge). The total starting point was therefore eight years’ imprisonment.
22 R v Kaweroa [2021] NZDC 10585 at [1] and [17].
offending while subject to a Youth Court order, referring to legal authority supporting the treatment of youth offenders differently from adult offenders, including R v Pouwhare.23 Also, Mr Matkovich suffers from FASD and attention deficit hyperactive disorder. With this combination, Mr Snelgar submitted that no uplift should have been imposed. He submitted rehabilitation should have been prioritised over denunciation.
[35] Mr Snelgar also submitted that the Judge erred by applying a discount of only 15 per cent for Mr Matkovich’s youth. This discount was effectively cancelled out by the uplifts imposed.
[36] Mr Whyte submitted that the Judge did not err by applying an uplift for Mr Matkovich’s Youth Court notations. While those notations are not convictions for the purpose of s 9(1)(j) of the Sentencing Act, he submitted they are nevertheless a relevant aggravating factor, referring to R v Rongonui24 and Kohere v Police.25
[37] Mr Whyte also submitted the Judge did not err by including a five per cent uplift for Mr Matkovich’s offending while subject to a Youth Court sentence, relying on s 284 of the Oranga Tamariki Act 1989 which refers to the disposal of proceedings in the Youth Court as “sentencing”.
[38] Mr Whyte acknowledged that Mr Matkovich is entitled to a discount for youth, but submitted that the 15 per cent discount applied by the Judge was appropriate, that Mr Matkovich is at a high risk of reoffending, the aggravated robberies were serious violent offending, and his remaining personal circumstances were recognised by the further discount of 15 per cent.
[39] I propose to consider the issues of uplift and youth discount together. The focus on appeal is, of course, the end sentence, rather than how that sentence is calculated.
23 R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868. Mr Snelgar also referred to the New Zealand Bill of Rights Act 1990, s 25(i); United Nations Convention on the Rights of the Child, 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990), art 3.1; R v M [2014] NZHC 1848; and DP v R [2015] NZCA 476, [2016] 2 NZLR 306.
24 R v Rongonui [2009] NZCA 279.
25 Kohere v Police (1994) 11 CRNZ 442 (HC).
[40] Mr Snelgar’s submission is reflected in R v Pouwhare,26 where the Court of Appeal said:
[82] A “young person” under the CYPF Act is a “child” for the purposes of the United Nations Convention on the Rights of the Child, which New Zealand ratified in 1993. For its purposes a “child” is everyone below 18 years unless under domestic law majority is attained earlier. When sentencing a young person, therefore, a judge should, to the the [sic] extent that this is consistent with the letter of the Sentencing Act, act in accordance with the Convention and, in particular, should treat the young person's “best interests” as a “primary consideration”. The Judge must treat the young person in a way that promotes his or her “sense of dignity and worth”; must reinforce, the young person's “respect for the human rights and fundamental freedoms of others”; and must, as the Sentencing Act also expressly calls for, impose a sentence which “takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.
(footnotes omitted)
[41] On the other hand, as Mr Whyte submitted, the Court of Appeal in R v Rongonui,27 considering the effect of Youth Court notations in a Solicitor-General’s appeal against sentence, said:
[88] We agree with the Crown that the Judge’s sentence was manifestly inadequate. In our view, the Judge placed far too much weight on the testimonial material before her and gave too little weight to the evidence of prior offending on which Mr Rongonui had appeared previously in both the Youth Court and the District Court. In our view, though no convictions resulted, the findings in the Youth Court ought to have been taken into account and given significant weight: see Kohere v Police (1994) 11 CRNZ 442 (HC). As a result, the overall credit given to the accused was far too high.
[42] The Court of Appeal has indicated in R v Putt and Geros v R that uplifts for Youth Court notations are permitted, not under s 9(1)(j) of the Act since they are not convictions, but under s 9(4) as other factors for consideration as the Court thinks fit.28 In R v Putt the Court of Appeal said:
[19] However, in the present case, the previous history [of Youth Court notations] involves no application of violence and is not particularly extensive. The appropriate course in this case was to, as Mr Downs submitted, offset this history against the discount that might otherwise have been given to the appellant for his youth. The history in the present case was not such as
26 R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868.
27 R v Rongonui [2009] NZCA 279.
28 R v Putt [2009] NZCA 38 at [18]; and Geros v R [2011] NZCA 122 at [16].
to completely negate the effect of his youth but was a relevant factor in that context.
[43] In the event, no separate discount for youth was given. In Geros v R, the offender had prior notations for violent offending that was similar to the offending for which he was being sentenced. The Court of Appeal said “the Putt solution rather appeals to us here”, and held that the offender’s previous Youth Court notations justified an uplift that effectively cancelled out the youth discount.29
[44]In Vaeau v Police, having reviewed these two Court of Appeal decisions,
Thomas J said:30
[55] Youth Court notations are relevant to considering whether or not a youth offender is entitled to be treated as a first time offender. In my assessment, Youth Court notations should not alter the discount which would otherwise be given for youth because previous history has no bearing on the reasons for which considerations of youth are relevant (for example, neurological factors which can lead to a reduction in culpability of young people as compared to adults).
[45] Thomas J also referred to Churchward v R, where the Court of Appeal set out why youth is relevant to sentencing:31
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
(footnotes omitted)
[46] In Churchward, the Court of Appeal said that Court had summarised the relevance of youth to sentencing in R v Pouwhare as follows:32
29 Geros v R [2011] NZCA 122 at [18]-[19].
30 Vaeau v Police [2015] NZHC 1972.
31 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
32 At [84] citing R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868 at [96].
… the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed. The analysis Mako calls for is always indispensable.
[47] Returning to that guideline judgment of R v Mako, the Court of Appeal considered the youth discount specifically in the context of aggravated robbery offending:33
[65] Youth and the prospects of rehabilitation may be mitigating factors. Offenders, and there seem a disturbing number, who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing for serious aggravated robbery offences. As noted in the judgment of the full Court of the High Court in Cooper a high proportion of aggravated robberies in this country are committed by teenagers. In some cases young offenders may have been directed by others who are older. It would only encourage that practice to impose lower sentences unless there are real prospects of rehabilitation and unlikelihood of re-offending.
[66] However, where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.
[48] In this case, given the acknowledged seriousness of some of Mr Matkovich’s relevant prior Youth Court notations and his offending while subject to Youth Court order, I consider it was open to the Judge to apply uplifts and a youth discount that effectively cancelled each other out. Mr Matkovich’s Youth Court notations included five aggravated robberies, one aggravated burglary, three burglaries and eighteen counts of unlawfully taking a motor vehicle or getting into a motor vehicle. They are concerning, and more serious than in Vaeau. Also, the pre-sentence report states that Mr Matkovich is at very high risk of reoffending due to the gravity, volume and breadth of his offending at a young age. Alcohol was listed as a factor contributing to his offending. I do, however, accept Mr Snelgar’s submission that FASD has played a part in Mr Matkovich’s youth offending and exacerbated the neurological differences referred to in Churchward.
33 R v Mako [2000] 2 NZLR 170 (CA).
[49] The Judge gave a 15 per cent discount for all of Mr Matkovich’s personal circumstances, referring to his diagnosed FASD and personal care and protection issues. The latter was a reference to cultural material provided by Mr Matkovich’s conscientious social worker, which I have also reviewed. It explains that Mr Matkovich is of Ngai Tuhoe and Te Rarawa descent. His father is also of Croatian heritage. The report indicates that his father has an offending history and his mother has shown limited capacity to offer the emotional support that he needs. He has followed his two older brothers towards offending (burglaries, car related offences and aggravated robberies). He has an extensive care and protection history dating back to when he was aged two, involving family violence incidents between his parents. He has been victim, subject or witness to multiple family violence incidents. He was also exposed to substance abuse by his parents. His parents separated approximately eight years ago. He turned to the streets for connection with anti-social youths in his local community. His disruptive behaviour, and concerns regarding his neglect, date from his parents’ separation. By age 11-12, he had started running away from home and engaging in criminal activity. Intermediate school was the last mainstream school he attended. This has had a significant impact on his confidence, academic achievement and his ability to socialise with positive peers his own age.
[50] Mr Matkovich’s placement history with Oranga Tamariki began in 2016, aged 13, although at times he has been placed back within his whānau. He has been subject to strict curfew conditions for the three years prior to this offending. He was then remanded in custody at Korowai Manaaki Youth Justice residence. Residence staff reported there were no issues with his behaviour and he was engaging well in education and sporting activities daily. He also successfully completed a Dialectical Behavioural Therapy programme “He Waka Eke Noa”, a significant achievement. His social worker acknowledges that there were missed opportunities with regard to his care and protection in his early years.
[51] Dr Smith, a general and developmental paediatrician, reported in 2018 that Mr Matkovich meets the criteria for FASD. He also reported it is possible that Mr Matkovich’s adaptive functioning may be significantly related to his exposure to family violence and antisocial role models, and that he possibly has ongoing anxiety given early separation anxiety problems as a young child. Dr Smith recommended
maintaining him within a learning environment as he clearly has the ability to learn and think, and noted that his social emotional functioning is very immature, which suggests he will respond to a lot of kindness and understanding that anxiety may underlie some of his behaviour.
[52] Mr Matkovich’s social worker states that punishment as a means to teach lessons is counter-productive for individuals with FASD. His greatest concern is Mr Matkovich’s vulnerability, and the connections he will make that may entrench offending behaviour.
[53] Stepping back, I consider the combined effect of Mr Matkovich’s FASD and childhood experience, including trauma, go some way to explain his youth offending. I also accept that Mr Matkovich’s FASD adds to the particular difficulty a substantial sentence of imprisonment will have on him as a young person of 18.34 The Judge was aware of, and sought to avoid, a crushing long sentence. Even so, while Mr Matkovich’s youth offending and risk of reoffending weigh against a greater discount, the insights from the paediatrician and social worker lead me to accept Mr Snelgar’s submission that rehabilitation efforts should still be prioritised while still having regard to denunciation. I consider Mr Matkovich’s combination of personal circumstances, on top of youth itself, warrants more than a 15 per cent discount. I consider a discount of 25 per cent is appropriate.
Parity
[54] Mr Snelgar also relied on parity with Mr Kaweroa’s sentence.35 I have already addressed the starting point parity. In terms of end sentence, Mr Kaweroa was sentenced to five months’ home detention and six months of post-detention conditions on charges of aggravated robbery, wounding with intent to cause grievous bodily harm, and unlawfully taking a car. Mr Snelgar submitted that even with an adjustment for the different facts and Mr Matkovich’s previous notations, there is a stark difference between a sentence of home detention and four years’ imprisonment,
34 Churchwood v R [2011] NZCA 531 at [86]-[87].
35 Sentencing Act 2002, s 8(e).
leading a reasonably minded independent observer to think something has gone wrong.36
[55]Mr Kaweroa’s sentence was reduced down to home detention by virtue of:
(a)an 18 month discount for a guilty plea (25 per cent);
(b)a 16 month discount for personal circumstances described in a s 27 report (22 per cent);
(c)an 11 month discount for youth (15 per cent);
(d)a three month discount for remorse and rehabilitative prospects (four per cent); and
(e)having decided home detention was appropriate, a further deduction for his seven and a half months’ spent in Korowai Manaaki.
[56] Thus, Mr Kaweroa received a total discount of 66 per cent for these personal factors, before the further home detention reduction for time in custody. Whether or not this was lenient, Mr Matkovich’s personal circumstances differ significantly from Mr Kaweroa’s. In sentencing him, Judge Clark noted the difference in relation to Mr Matkovich’s notations. Having already addressed that difference and Mr Matkovich’s discount for personal circumstances, I do not consider parity requires a further discount.
Conclusion
[57] A starting point of six and a half years’ imprisonment, with a net discount of 50 per cent (25 per cent for personal circumstances and 25 per cent for guilty pleas), would have resulted in an appropriate end sentence of three years and three months’ imprisonment. Therefore, the sentence of four years’ imprisonment was manifestly excessive.
36 Whittaker v R [2020] NZCA 241 at [42]-[43].
Result
[58]The appeal is allowed.
[59] The sentence of four years’ imprisonment is quashed and substituted with a sentence of three years and three months’ imprisonment.
Gault J
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