Matthews v Police

[2025] NZHC 896

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-2

[2025] NZHC 896

BETWEEN

NOAH PETER MATTHEWS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 March 2025
Appearances:	C Stanley and O Saunders for Appellant J G Avia and F J Beaton for Respondent
Judgment:	11 April 2025

JUDGMENT OF BOLDT J

Introduction

[1]    On 6 December 2024, Judge Walker sentenced the appellant,1 Noah Matthews, to three years’ imprisonment on charges of sexual violation by rape and sexual violation by unlawful sexual connection.2 The offending occurred in October 2022, when Mr Matthews was 16 and a half years old. He now appeals against his sentence.

Background

[2]    Mr Matthews and the victim knew each other from high school. She was 17. On 17 October 2022, she and Mr Matthews arranged to meet at his home in

1      Police v Matthews [2024] NZDC 29917 [Decision under appeal].

2      Crimes Act 1961, ss 128(1)(a) and (b) and 128B. Both charges carry a maximum penalty of 20 years’ imprisonment.

MATTHEWS v NEW ZEALAND POLICE [2025] NZHC 896 [11 April 2025]

Paraparaumu. He led her to his bedroom and provided her with a can of bourbon and coke, which she drank. She lay back on the bed and Mr Matthews lay next to her.

[3]    Mr Matthews put his hand on her thigh; she immediately indicated she did not want him to do so. He put his hands inside her track pants and attempted to touch her vagina. She kicked out, but he penetrated her vagina with his fingers.

[4]    The victim did what she could to push Mr Matthews away, and tried to use her knees to stop him touching her. When he grabbed her breast, she kicked him and rolled off the bed. Mr Matthews pinned her to the floor and kissed her; she bit his lip.

[5]    The victim asked to go to the toilet. Mr Matthews waited outside his bedroom door, and when she emerged he told her to go back into his bedroom. She was frightened and did so. The victim asked to leave, but Mr Matthews told her she had to stay. He got on top of her and tried to remove her clothing. When she resisted, he strangled her, and she felt as though she was suffocating. When he loosened his grip she told him she could not breathe. Nonetheless, he strangled her again. He removed her pants. She again asked to leave, but he told her she could not. Then he raped her.

[6]    The victim disclosed the offending to her mother a few days later, and in January 2023 Mr Matthews was charged.

Procedural History

[7]    The charges were laid in the Youth Court, and Mr Matthews formally admitted them in July 2023. He was referred to Vibe Youth Services, and had an initial session with WellStop, a well-regarded community organisation which aims to eliminate harmful sexual behaviour. Mr Matthews attended a family group conference in August 2023 where he verbally apologised to the victim and her mother. He agreed to attend sessions with WellStop for two months for assessment and participate in Kokiri Marae’s Whakamanawa Tane programme. He also promised to write a letter of apology to the victim.

[8]    Mr Matthews did not complete his programme with Kokiri Marae, and in September 2023 was discharged from WellStop due to lack of engagement. There was another  family  group  conference  in  October  2023,  where  it  was  noted  that   Mr Matthews had not written his letter of apology to the victim.

[9]    Matters deteriorated further in 2024. While Mr Matthews was re-admitted to WellStop in January 2024, he was discharged a few months later, again for non-engagement. He also began breaching his bail. Two breaches were certified in January, three in February, six in April, seven in May. The Youth Court’s patience ran out at that point, and Mr Matthews was placed in residence, the Youth Court equivalent of a remand in custody.

[10]   In June 2024, the Crown and Oranga Tamariki applied for Mr Matthews’ charges to be transferred to the District Court. His parents acknowledged he had been given numerous opportunities to resolve things, but that “he is going to do what he wants to do”. Mr Matthews accepted only limited responsibility for his offending.  He received no treatment from WellStop, which indicated it retained significant concerns about his sexual development, his general development and his capacity for self-regulation. He had still not written to the victim, despite many offers of assistance to do so.

[11]   Other aspects of Mr Matthew’s behaviour were unsatisfactory too. He had been given a place in transitional housing, but refused to adhere to the house rules, which affected not only him but  also other residents.  He was  asked to leave in  May 2024.

[12]   In a Youth Court minute dated 12 June 2024, Judge Mika concluded, in light of Mr Matthews’ steadfast refusal to engage with the many rehabilitative options offered to him, that all sentencing option in the Youth  Court had been exhausted.   He transferred the charges to the District Court, observing that a transfer “is the only way to respond to Noah’s risk of re-offending and to address the underlying causes of his offending through therapeutic interventions”.

[13]   Mr Matthews declined to discuss the offending with the writer of the pre-sentence report, though he was prepared to talk, at length, about the effect the charges have had had on him personally. The report described Mr Matthews’ presentation has disingenuous and assessed him as posing a “high risk of re-offending and a high risk of harm”. He was unable to offer an address for an electronically monitored sentence. The report noted an absence of apparent remorse and recommended a sentence of imprisonment.

[14]   Mr Matthews presented a challenging psychological picture. He suffers from attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder and anti-social personality disorder. One way his disorders have manifested is in “therapy blocking” behaviour. While he has received little meaningful therapy, his refusal to engage is, at least in part, a feature of his underlying pathology.

[15]   Meanwhile, the effect of the offending on the victim was profound. She has been diagnosed with complex post-traumatic stress disorder (PTSD) and bulimia and has attempted suicide on several occasions. The offending has also taken a heavy toll on her parents. Her mother has also developed PTSD, and she and the victim’s father have now separated. In her victim impact statement, the victim’s mother said:

Noah has robbed us of our peace, our stability, and our hope. Initially, there was a glimmer of hope that he could turn his life around, but that hope has been extinguished by his apparent lack of remorse or accountability for his actions.

District Court Sentencing

[16]   On the eve of sentencing, Mr Matthews was offered a residential placement with the Grace Foundation. That option remained undeveloped — the Foundation had not assessed Mr Matthews, nor had it confirmed it would be able to offer meaningful therapy. On 5 December 2024  Ms  Stanley,  on  Mr  Matthews’  behalf,  asked  Judge Walker to adjourn the sentence to allow that option to be considered.

[17]   Judge Walker declined. He had already indicated he did not consider a sentence of home detention — which placement at the Grace Foundation would require — to be an available option for Mr Matthews, and accordingly sentencing proceeded as scheduled on 6 December.

[18]   The Judge adopted a starting point of six years’ imprisonment.3 He applied a discount of 25 per cent to reflect Mr Matthews’ relatively prompt admission of the charges, and deducted a further 20 per cent because Mr Matthews was only 16 at the time of the offending.4 He offered a small additional discount of five per cent to reflect Mr Matthews’ limited engagement with WellStop.5

[19]   In total, Judge Walker reduced the six-year starting point by 50 per cent, resulting in a final sentence of three years’ imprisonment.6

Discussion

[20]   The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principles, an appeal can be allowed only if the sentence was manifestly excessive, if there was a material error of principle or if there are exceptional circumstances.7

[21]   My focus is on the final sentence the Judge imposed, rather than how it is made up.8 If the same outcome could have been reached by another route, the sentence will not be manifestly excessive.

[22]   Ms Stanley accepted she could not challenge the six-year starting point. I agree. There were a number of aggravating features, most notably the strangulation and the discrete episode of digital penetration, which meant six years represented the very lowest end of the available range.

[23]   Similarly, Ms Stanley struggled to identify any other error in Judge Walker’s approach. Mr Matthews received a substantial discount for his youth and guilty plea,

3 At [23].

4 At [25].

5 At [28].

6 At [31].

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

8      Hughes v R [2012] NZCA 388 at [29].

and the further discount of five per cent to reflect his limited engagement with WellStop can only be described as generous.

[24]   Ms Stanley’s principal complaint was that Judge Walker declined to adjourn the sentence to allow the possibility of a sentence of home detention, and full-time placement at the Grace Foundation, to be investigated more fully. She acknowledged the proposal that Mr Matthews be placed at the Grace Foundation was in its earliest stages. Several important inquiries, most notably an assessment of its capacity to offer a meaningful therapeutic regime to someone with Mr Matthews’ complex psychological presentation, had not been undertaken.

[25]   Ms Stanley acknowledged Judge Walker could only have considered a placement at the Grace Foundation if he had first decided to impose a sentence of home detention. To do so, he would have to have concluded that Mr Matthews’ sentence could be reduced to a term of imprisonment of two years or less.9

[26]   Having  accepted  she  could  not  challenge  the  six-year  starting  point,   Ms Stanley candidly acknowledged that a sentence of home detention could only have been reached if the Judge had adopted a process of reverse-engineering. She accepted he would have to have begun with a sentence of home detention in mind, then contrived both a low starting point and an artificially-inflated series of discounts.

[27]   Ms Stanley noted that Judges sometimes depart from the usual approach to sentencing, and build their analysis around an outcome which an orthodox application of sentencing principles would not permit. That may be the case, but that approach, when it occurs, detracts from the credibility of the sentencing regime, which is built around transparency and consistency. As the Court of Appeal observed in Pouwhare v R, when a young person is transferred for sentence to the District Court, the purposes and principles of the Sentencing Act 2002 apply.10

[28]   In any event, I am satisfied the starting point could not reasonably have been any lower. As already noted, the strangulation and the devastating effect of the

9      Sentencing Act 2002, s 15A.

10     Pouwhare v R [2010] NZCA 268; (2010) 24 CRNZ 868 at [74].

offending on the victim and her family could have justified a higher starting point than the six years the Judge selected.

[29]   As to mitigation, Mr Matthews did not admit the offending immediately. Nonetheless, the Judge offered him a 25 per cent discount to recognise his plea of guilty.11 And while Ms Stanley submitted the Judge should have extended an even greater discount for Mr Matthews’ youth, perhaps as high as 30 per cent,12 even a reduction of that magnitude would not have brought the sentence down to the level required for home detention to be considered. In any event, as the Court of Appeal observed in Churchward v R:13

[84] As was noted in R v Rapira , however, where the offending is grave,  the scope to take account of youth may be greatly circumscribed. This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and in general. This Court summarised the relevance of youth to sentencing in Pouwhare v R as follows:

…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.

[30]   When examining the discount the Judge gave to reflect Mr Matthews’ youth, it is fair to consider the background to the sentencing. The charges were originally laid in the Youth Court, and every part of the Court’s response, until it finally ran out of options in mid-2024, was directed towards an age-appropriate rehabilitative outcome. When he transferred the case to the District Court, Judge Mika recorded Mr Matthews’ parents’ acceptance that he had been given “opportunities to get out of his situation and the effort required [was] minimal for this to happen”.

[31]   It would be naïve to presume Mr Matthews will be more receptive to any course of treatment or counselling the Grace Foundation may provide than he was to

11     Decision under appeal, above n 1, at [25].

12     In W (CA722/2021) v R [2022] NZCA 422 at [61], the Court of Appeal observed that discounts for youth typically range between 10 and 30 per cent, though there is no fixed upper limit.

13     Churchward v R [2011]  NZCA  531, (2011)  25  CRNZ  446;  reaffirmed  in Rolleston  v  R  (No 2) [2018] NZCA 611, [2019] NZAR 79 (footnotes omitted).

the rehabilitative programmes offered by WellStop and others. The case was transferred to the District Court because Mr Matthews made it clear he was not interested in  therapy.  Moreover,  even  if  home  detention  had  been  available,  Mr Matthews’ repeated breaches of the conditions of his bail, despite warning after warning, give no cause for optimism that he would comply with the terms of his sentence.

[32]   It follows Judge Walker was faced with a young man who committed a violent rape, and who lacks insight, empathy or remorse. He poses a high risk of re-offending and has resisted the many rehabilitative and community-based opportunities he has been offered.

[33]   In those circumstances the Judge was entitled (and indeed obliged) to prioritise the safety of the community and impose a sentence of imprisonment. As a former Principal Youth Court Judge, Judge Walker understands better than anyone the detrimental effect of imprisonment on a psychologically troubled young person.14 But Mr Matthews left him no choice. The Judge made no error.

[34]The appeal is dismissed.

Boldt J

14     See also Churchward, above n 13, at [85].