Matthews v R

[2019] NZCA 208

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA766/2018
 [2019] NZCA 208

BETWEEN	KEVIN MARTIN MATTHEWS Appellant
AND	THE QUEEN Respondent

Hearing:	20 May 2019
Court:	Kós P, Peters and Mander JJ
Counsel:	P J Kaye for Appellant D G Johnstone for Respondent
Judgment:	11 June 2019 at 11:30 am

JUDGMENT OF THE COURT

A    The application to adduce further evidence on appeal is granted.

BThe appeal against sentence is allowed.

CThe sentence of 25 months’ imprisonment is quashed and a sentence of 22 months’ imprisonment is substituted.

DLeave is granted to apply for cancellation of this sentence and substitution of a sentence of home detention.

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REASONS OF THE COURT

(Given by Peters J)

1. Following a jury trial in the District Court at New Plymouth, Mr Matthews was convicted of two charges of possession of materials and one of possession of equipment, in each case with the intention that the same be used in the manufacture of methamphetamine.  The jury acquitted Mr Matthews of the other offending with which he was charged, namely manufacturing methamphetamine. 

2. Judge Glubb sentenced Mr Matthews to 25 months’ imprisonment.[1]  Mr Matthews appeals against that sentence on the ground that it was manifestly excessive.    

Background

[1]R v Matthews [2018] NZDC 24135 [Sentencing notes]; and Misuse of Drugs Act 1975, s 12A(2)(a).

1. Mr Matthews was 50 years of age at the time of sentence.  He has convictions for unrelated offending prior to 2000.  Mr Matthews did not offend again after that for 12 or so years, a substantial hiatus and one that the Department of Corrections Provision of Advice to Courts report (PAC report) ascribes to Mr Matthews’ regular employment and his recovery from problems with alcohol. 

2. In 2013 Mr Matthews was convicted of cultivating what must have been a modest quantity of cannabis (Mr Matthews was sentenced to 200 hours of community work).  The current offending then followed in 2016, offending Mr Matthews attributes to his involvement with “anti-social associates” and an addiction to methamphetamine.  By the time of the PAC report in late 2018, however, Mr Matthews was again employed and had gone to some effort to rehabilitate himself and rid himself of his addiction to methamphetamine.  Although his stay at a detoxification centre had been short-lived, evidence from two counsellors that Mr Matthews consulted shows that they were impressed by his performance, one describing it as exceptionally good.  It is on this evidence that Mr Kaye submits that a greater reduction in sentence is called for. 

Discussion

1. There is no dispute as to the Judge’s starting point of 28 months’ imprisonment.

2. We agree that Mr Matthews’ efforts to rehabilitate himself are impressive and only to be encouraged, but we are not persuaded that the Judge was required to give a discount of more than 10 per cent.  As the Judge said, that is a reasonably generous discount for rehabilitative steps.[2] 

   [2]Sentencing notes, above n 1, at [22].

3. That said, we do propose to reduce Mr Matthews’ sentence by a further three months, to 22 months’ imprisonment, to reflect two matters.  First, and as we have said, it is apparent from the PAC report that Mr Matthews’ offending reflected his addiction to methamphetamine.  We accept a causative link between addiction and offending is established, and the scale of the offending does not require this mitigating consideration to be discounted.[3]  This factor requires some recognition in sentencing.  Secondly, there is medical evidence to the effect that Mr Matthews is unwell and that this will make serving a sentence of imprisonment more difficult for him.  This evidence was not before the Judge, and nor could it have been.  It only came to light when Mr Matthews was examined on beginning his sentence. 

   [3]Wheeler v R [2017] NZCA 193 at [13]; and Martel v R [2018] NZCA 305 at [30].

4. As to home detention, and as Mr Johnstone accepted, the nature of Mr Matthews’ offending does not of itself require imprisonment if a suitable address is or becomes available.  Given that, we grant Mr Matthews leave to apply to cancel his sentence of imprisonment and for substitution of a sentence of home detention.[4] Taking into account time already served, we consider any substitute home detention sentence imposed today should be eight months. 

Result

[4]Sentencing Act 2002, s 80K.

1. The application for leave to adduce further evidence is granted.

2. The appeal against sentence is allowed.  We:

   (a)quash the sentence of 25 months’ imprisonment and in its place substitute a sentence of 22 months’ imprisonment; and

   (b)grant leave to apply for cancellation of this sentence and substitution of a sentence of home detention. 

Solicitors:
Crown Solicitor, Auckland for Respondent