Matkovich v Police - [2021] NZHC 1660

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…

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: [2021] NZHC 1660
Decision Date: 7 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Matkovich, the appellant, is contesting his sentence of four years' imprisonment imposed by Judge N D Cocurullo, following his guilty pleas on charges of aggravated robbery, assault with a weapon, and unlawfully taking a motor vehicle. The appellant's primary argument is that his sentence was manifestly excessive as the starting point was too high, and the judge failed to apply an adequate youth discount. The Crown argued that the starting point was justified, and the youth discount was appropriate.

The court considered the starting point of six years and eight months' imprisonment, with the six-month uplift for the unlawful taking of a motor vehicle being impermissible under Section 18 of the Sentencing Act 2002. However, the court held that the sentencing judge was entitled to treat the assault with a weapon as an aggravating feature of the lead aggravated robbery offence and take it into account in fixing the starting point. The court concluded that an overall starting point of six and a half years' imprisonment would have been appropriate.

The court then considered the issue of uplift and youth discount. The appellant's Youth Court notations and offending while subject to a Youth Court order were deemed relevant aggravating factors. However, the court agreed with the appellant's submission that rehabilitation efforts should still be prioritized while still having regard to denunciation. The court held that a discount of 25 per cent for the appellant's personal circumstances was appropriate.

In conclusion, the court found that the appellant's sentence of four years' imprisonment was manifestly excessive. The appeal was allowed, and the sentence was quashed and substituted with a sentence of three years and three months' imprisonment.

Orders