Matthews v Police HC Wanganui CRI-2011-483-23
[2011] NZHC 1100
•8 September 2011
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2011-483-23
MARCUS GENE MATTHEWS
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 31 August 2011
Appearances: M Bullock for the appellant
J Woodcock for the respondent
Judgment: 8 September 2011
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Mr Matthews, pleaded guilty to charges of wounding with intent to cause grievous bodily harm and aggravated burglary. He was sentenced by Judge Cameron in the District Court at Wanganui on 10 June 2011 to a term of six years’ imprisonment on the first charge, and a concurrent term of one year on the second charge.1
[2] Mr Matthews now appeals against that sentence of six years as being manifestly excessive.
1 R v Matthews DC Wanganui CRI-2010-083-002930, 10 June 2011.
MATTHEWS V POLICE HC WANG CRI-2011-483-23 8 September 2011
Facts
[3] Mr Matthews had been in a relationship with a woman. At approximately
10.00pm on the night of 15 December 2010, the woman in question, a female companion and a man (“H”), the woman’s previous partner with whom she was in the process of reconciling, were at a residential address in Wanganui. There was a telephone conversation between Mr Matthews and H. A short time later Mr Matthews arrived at the residential address with two male associates. H hid in a bedroom in the house. Mr Matthews walked on to the property while his associates remained in the vehicle. The two women at the property made it clear to Mr Matthews that he was not welcome, and asked him to leave on numerous occasions.
[4] Mr Matthews refused to leave, and forced entry to the house by smashing open the front door, breaking the doorframe and causing the latch of the lock to break free. Once inside Mr Matthews went into the bedroom where he located H, the woman’s previous partner. An argument started that became physical. During that physical altercation Mr Matthews gained control of a knife that it would appear had initially been in the possession of H. Mr Matthews used that knife to cause wounds to H.
[5] Mr Matthews’ two associates entered the house, intervened in the confrontation and removed Mr Matthews from the house. Mr Matthews was arrested later at hospital when receiving medical attention for injuries he had received.
[6] As a result of Mr Matthews’ actions H received extensive slash wounds to his back, face, neck, shoulder and shins and required hospitalisation in the Critical Care Unit of Wanganui Hospital. As the Judge observed, having seen photographs of the victim, the slash wounds were deep and the attack was, as Mr Bullock conceded at sentencing, life threatening at the time. Having seen the same photographs, I agree.
[7] As matters transpired, notwithstanding the severe nature of the slash wounds, H was able to be stitched up and apparently, other than scarring, has suffered no permanent injuries.
[8] At the time of his offending Mr Matthews was subject to standard and special release conditions for previous offending for which he had been imprisoned.
Analysis
[9] R v Taueki is the guideline sentencing authority for violent offending,
including wounding with intent to cause grievous bodily harm (“GBH offending”).2
In Taueki the Court of Appeal identified a number of aggravating features that contribute to the seriousness of GBH offending that are relevant when undertaking an assessment of the appropriate starting point for a particular offence.3
[10] By reference to those features, the Court divided GBH offending into three broad categories, or bands:
(a) Band one: for offences at the lower end of the spectrum, which did not involve extreme violence or violence that was life threatening. Where no aggravating features were present a starting point at the bottom was appropriate. The presence of one or more factors required a higher starting point in Band one (three to six years’ imprisonment).
(b)Band two: appropriate for grievous bodily harm offending which featured two or three aggravating factors (five to ten years’ imprisonment).
(c) Band three: encompasses serious offending which had three or more aggravating factors where the combination was particularly grave (nine to fourteen years’ imprisonment).
[11] In sentencing Mr Matthews by reference to Taueki, the Judge identified the following aggravating features of Mr Matthews’ offending:
2 R v Taueki [2005] 3 NZLR 372 (CA).
3 Extreme violence; premeditation; serious injury; use of weapons; attacking the head; facilitation of crime; perverting the course of justice; multiple attackers; vulnerability of victim; home invasion; gang warfare; public official victim; vigilante action; hate crime.
(a) home invasion;
(b)elements of premeditation and planning, it being clear that Mr Matthews went to this domestic property looking for his victim and wanting a confrontation resulting from his victim reconciling his relationship with a woman with whom Mr Matthews considered he had a relationship;
(c) the use of a knife, although the Judge recognised that Mr Matthews had not brought that knife to the scene;
(d) the attack was unprovoked and prolonged; and
(e) the injuries were serious and life-threatening, and were to vulnerable parts of the body, including the face and neck.
[12] The Judge identified eight years, being at the upper end of the scale in Band two of Taueki, as being the appropriate starting point sentence. The Judge considered that an uplift of one year was appropriate given Mr Matthews’ previous offending, and that he was on release conditions at the time of this offending. Finally, having regard to Mr Matthews’ early guilty plea and, in addition, the remorse which the Judge accepted Mr Matthews had shown, the Judge allowed a full discount of 33 per cent, resulting in the end sentence of six years’ imprisonment.
[13] In arguing Mr Matthews’ appeal, Mr Bullock generally accepted the presence of the aggravating factors identified by the Judge. At sentencing he had acknowledged that, on the face of things, a starting point sentence at the higher end of Band 2, or even the lower end of Band 3, might have been called for. Mr Bullock argued, however, that when the true seriousness of each of those factors was assessed, as Taueki requires, such a starting point was not called for. Rather, the appropriate one was more towards the middle of Band 2, that is six or seven years’ imprisonment. Mr Bullock advanced that submission by reference to what he said had been the threats and challenges made by Mr Matthews’ victim in the telephone conversation and – most significantly – the fact that Mr Matthews had not taken the knife to the scene, but had only gained control of it during the confrontation with his
victim. In addition, Mr Bullock submitted that the uplift of one year identified by the Judge was too much given the nature of Mr Matthews’ previous offending, and that an uplift in the vicinity of six months would have been more appropriate. On that basis, and accepting the Judge’s approach to mitigation, an end sentence of between four years and four months and five years’ imprisonment was appropriate. The sentence actually imposed was therefore manifestly excessive.
[14] For the Crown, Ms Woodcock pointed to the various Taueki aggravating features that were present. She said these were as had been identified by the Judge, also noting that here there had been wounds to the head. On that basis, she argued that the starting point in the mid to upper range of Band two was appropriate. Ms Woodcock acknowledged the uplift may have been stern, but was not manifestly excessive. Finally, she noted that a full discount for both guilty plea and remorse had been allowed.
[15] In my view, the Judge was correct in his identification of relevant Taueki
aggravating features. By my assessment, the following Taueki features were present:
(a) extreme violence; (b) premeditation;
(c) serious injury;
(d) use of a weapon; and
(e) home invasion.
[16] It could also be said, as the Judge recognised, that the further aggravating feature of attack to the head was present. Mr Bullock suggested that that aggravating feature was more generally considered to be directed at attacks involving blows with a weapon, or kicks, to the head. In my view, the fact that a knife was used to inflict a wound to a victim’s head or neck adds to the aggravation of the use of the knife in and of itself. If there is a distinction between the aggravating significance of a knife being used to inflict a wound to the head and an attack to the head by stomping, it is not a distinction I care to take too far.
[17] Given the number of those aggravating features, the starting point adopted by the Judge is difficult to impugn.
[18] At the same time, and as the Court of Appeal made clear in Taueki, it is not simply a question of the number of aggravating features present that determines sentences for GBH offending. The significance, in the individual case, of each of those factors has to be carefully assessed. Sentencing judges need to exercise judgment in assessing the gravity of each aggravating feature present. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending.
[19] In terms of Mr Bullock’s submissions, I accept that the significance of Mr Matthews’ use of the knife has to be assessed in the context that it was not Mr Matthews who brought the knife to the scene. Moreover, it is clear the Judge was aware of that. Having said that, however, Mr Matthews did use a knife to inflict serious injuries to his victim.
[20] Mr Bullock also suggested that one of the mitigating features of GBH offending identified by the Court of Appeal, namely that of provocation, was available to Mr Matthews. Mr Bullock pointed to the conversation between Mr Matthews and his victim in which he said Mr Matthews had been challenged by his victim. I simply do not accept that provocation was a mitigating factor here. It is perhaps enough to observe that, sometime after that conversation, Mr Matthews kicked down the door of the domestic residence so that he could confront his victim.
[21] I therefore conclude that a starting point sentence of eight years, which is – as described by the Judge – “towards the upper end of the scale in Band two”, was within the available Taueki range and was not, therefore, manifestly excessive. In reaching that conclusion I have considered the cases Ms Woodcock referred to me,4
together with a number of other cases involving not dissimilar GBH offending.5
Those cases confirm my conclusion that the starting point adopted by the Judge was not manifestly excessive, although I accept that in comparison to some other cases at least, if not by reference to the Taueki guidelines in and of themselves, it may be
considered to be stern.
4 R v Heta HC Hamilton CRI-2010-019-005289, 12 May 2011; Kauwhata v R [2010] NZCA 451;
Dalley v R [2010] NZCA 290; R v Eliu [2008] NZCA 239; R v Tuheke HC Auckland CRI-2006-
044-7302, 17 December 2007.
5 R v Wi [2009] NZCA 81, R v Mohamed [2007] NZCA 170; Saber v R [2010] NZCA 603; Likio v
R [2010] NZCA 284; R v Konui [2008] NZCA 401.
[22] At the same time, I have concerns about the uplift of one year that the Judge identified as being appropriate on account of Mr Matthews’ previous convictions. Ms Woodcock identified this as being stern but within the available range at the Judge’s discretion. Mr Bullock said that it was excessive. Mr Matthews has some
22 previous convictions between April 2001 and September 2009. Most of these are for driving and blood alcohol offending. I would not have thought those offences were aggravating matters for this sentencing. Mr Matthews has, however, been convicted on two previous occasions (2003 and 2004) for common assault and male assaults female. More recently, in September 2009, Mr Matthews was convicted on charges of demanding with a weapon, burglary and wilful damage. I accept that those previous offences are aggravating factors as regards this sentencing. Furthermore, and I accept also a relevant aggravating factor, Mr Matthews was on release conditions at the time of this offending. In my view an uplift of one year to take account of those aggravating factors is outside the available range. I am very aware this is a matter of some discretion, but having regard – in particular – to the fact that the two convictions for offences actually involving violence dated back to what would appear to be one incident in July 2003, I tend to agree with Mr Bullock’s submission that the uplift was excessive. I think an uplift of no more than six months could have been justified.
[23] I have therefore considered whether a stern starting point, and that uplift, resulted in a sentence that was manifestly excessive. In making that assessment, it is the end sentence that Mr Matthews has to establish as being manifestly excessive.6
In identifying an end sentence of six years, the Judge not only allowed a full discount for Mr Matthews’ guilty pleas but also a significant additional allowance, here almost nine months, for remorse. In Hessell, the Supreme Court commented:7
Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.
6 R v MacCulloch [2005] 2 NZLR 665 (CA), at [50].
7 Hessell v R [2010] NZSC 135, at [64].
[24] Any concern I may have had about the significance of the uplift imposed by the Judge is addressed by what I think can fairly be seen as relating to the generous approach the Judge took to the question of an additional discount for remorse. The pre-sentence report recorded Mr Matthews expressing remorse including because of the impact his offending – and consequent sentence – had had on his ability to care for his 11 year old sister. The pre-sentence report also recorded that Mr Matthews recognised the link between his harmful consumption of alcohol and his offending. Mr Matthews also wrote a letter to the Judge confirming his remorse. I do not doubt Mr Matthews was remorseful. I am less clear, however, that such a significant additional discount was called for. Moreover, Mr Matthews’ sentencing was considerably disrupted when he protested loudly at the starting point sentence the Judge arrived at. Mr Matthews, in fact, chose to leave the Court as a sign of his dissatisfaction. In those circumstances, it would not perhaps have been surprising if the Judge had somewhat discounted Mr Matthews’ expression of remorse.
[25] On that basis, I am satisfied that the possible implications of what I do consider to be the excessive uplift have been balanced by the Judge’s approach on the question of remorse. I therefore conclude that the end sentence of six years imposed by the Judge was not manifestly excessive, and dismiss Mr Matthews’ appeal.
“Clifford J”
Solicitors:
Mark Bullock, Wanganui ([email protected])
The Crown Solicitor, Wanganui for the respondent ([email protected])
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