Matthews v Police - [2014] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-009 [2014] NZHC 929

BETWEEN
DAYNE KAHU MATTHEWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 May 2014

Appearances:

S Claver for Appellant
M-J Thomas for Respondent

Judgment:

6 May 2014

RESERVED JUDGMENT OF MANDER J

[1] This is an appeal against a sentence of imprisonment for a period of 2 years and 1 month imposed in respect of charges of injuring with intent to injure, burglary and intentionally damaging a dwelling house. Those charges carry maximum sentences of imprisonment of 5 years, 10 years and 7 years respectively.

Background

[2] The appellant was part of a group who invaded the victim’s home. Inside the house the appellant and his co-offenders proceeded to assault the occupants of the address and caused extensive damage to the dwelling’s interior. The appellant repeatedly punched an occupant of the address, smashed windows and furniture with an axe and a spade and used broken furniture as a weapon on other occupants. After stealing beer, the appellant was involved in throwing objects at the house, smashing windows and causing injury to an occupant. Injuries were sustained by three members of the address and over $7,000 in damage caused to the house. The attack on the house and its occupants was premeditated and involved serious violence and
vandalism in which the appellant was an active participant.

MATTHEWS v NEW ZEALAND POLICE [2014] NZHC 929 [6 May 2014]

The sentencing

[3] The appellant appeared for sentence together with two co-offenders before Judge Turner. Each had pleaded guilty to the same charges. One of the co- offenders, Mr Leishman, had sought a prior sentencing indication which resulted in an intimated sentence of home detention from a starting point of 2½ years imprisonment, adjusted for personal aggravating and mitigating circumstances and credit for an early guilty plea. At the sentencing hearing a 24 month term of imprisonment was commuted to one of 10 months home detention and 200 hours community service.

[4] The 2½ year starting point was also applied in respect of the other offenders including the appellant on the basis that there was no reason to distinguish between any of them in terms of their culpability in the joint enterprise. No complaint is made on appeal to that approach by the learned sentencing Judge.

[5] A 19 year old female co-offender, Ms Pou, was also sentenced to home detention for a period of 10 months and ordered to serve 200 hours community work. That co-offender’s eligibility for such a sentence resulted from a sentence calculation of 22 months imprisonment. Judge Turner commuted that sentence of imprisonment to home detention because of the offender’s age, her relatively limited history comprising two recent assault convictions, the fact the offender was in employment and her childcare responsibilities. It was considered that home detention would allow that offender “therapeutic intervention” to deal with her personal issues.

[6] In respect of the appellant, Mr Matthews, the 2½ year starting point was applied. An…

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: [2014] NZHC 929
Decision Date: 6 May 2014

CaseChat Overview and Summary

The case of Matthews v Police is an appeal against the sentence of 2 years and 1 month imprisonment imposed on Dayne Kahu Matthews for charges of injuring with intent to injure, burglary, and intentionally damaging a dwelling house. Matthews was part of a group that invaded the victim's home, causing extensive damage and assaulting the occupants. The appellant participated actively in the attack, which involved serious violence and vandalism.

The appeal centred on two submissions: first, the appellant argued that there was an illegitimate disparity between his sentence and that of his co-offenders. Secondly, the appellant argued that the sentencing judge placed too much weight on his previous convictions and effectively "double counted" them. The Crown, on the other hand, submitted that the sentencing judge's approach was appropriate, taking into account the personal circumstances of the appellant.

The court found that the uplift of 6 months for the appellant's previous convictions was excessive, and a more appropriate uplift would have been 3 months. The court also noted that the appellant's escape from lawful custody as a 16-year-old had little relevance to his eligibility for home detention as an adult offender. However, the court accepted that the sentencing judge was justified in excluding home detention as a sentencing option for the appellant due to his relatively recent history of serious violent offending. The court concluded that the sentencing judge did not err in declining home detention for the appellant, but the appeal was partially successful, and the term of 2 years and 1 month imprisonment was set aside and substituted with a sentence of imprisonment of 22 months.

In summary, the court acknowledged the appellant's previous convictions for serious violent offending but found the uplift of 6 months excessive. The court also found that the sentencing judge was justified in excluding home detention as a sentencing option for the appellant due to his history of serious violent offending. The appeal was partially successful, and the term of imprisonment was reduced to 22 months.

Orders