Matthews v The King
[2024] NZHC 984
•23 April 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-20
[2024] NZHC 984
BETWEEN SYDARNA MATTHEWS
Appellant
AND
THE KING
Respondent
Hearing: 23 April 2024 Appearances:
D Hall for Appellant
P Patanasiri for Respondent
Judgment:
23 April 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Progressive Legal, Rotorua
Gordon Pilditch Solicitors, Office of the Crown Solicitor, Rotorua
MATTHEWS v R [2024] NZHC 984 [23 April 2024]
[1] The appellant, Ms Matthews, appeals against an end sentence of two years and two months’ imprisonment imposed in the Rotorua District Court on 9 February 2024.1
[2] Ms Matthews was sentenced on two charges namely wounding with intent to injure, and intentional damage.
The District Court decision
Factual background
[3] Judge Snell set out the facts. The appellant had bought a vehicle from the victim — who was someone that the appellant regarded as a friend. When there were problems with the vehicle, the appellant tried to make contact with the victim and thought that the victim was avoiding her.
[4] At about 11.00 am on Tuesday 20 December 2022, the appellant was at her home address in Tūrangi. The victim was driving with her family on the appellant’s street and saw one of the appellant’s associates drive out of her driveway. The victim stopped on the road next to the associate and asked where the appellant was. The associate told the victim to pull into the appellant’s driveway.
[5] The victim attempted to drive away, and the associate blocked her from leaving. The victim got out of her vehicle and approached the associate. The appellant then came out of her address carrying a metal socket extension bar. She walked to where the victim was standing and began to punch the victim in the head with her fist and then struck her with the metal socket extension bar in the head at least five times.
[6] The appellant then struck the victim’s windscreen causing it to shatter and damaged the side wing mirror of her car. The appellant was only stopped when the victim’s partner separated her from the victim. The victim was able to get into her car and began driving back to her address. The appellant threw the metal socket extension
1 R v Matthews [2024] NZDC 2859.
bar at the victim’s vehicle causing damage to the roof and canopy of the vehicle as she drove away.
[7] The victim received an open wound to her scalp that required five staples to close. She also received bruising to her face, including a black eye. The attack on the victim was in front of the victim’s three young children who were in the car.
The sentence
[8] The sentencing Judge noted that the appellant had three previous convictions in 2022. They were for resisting police and disorderly behaviour and theft ex‑dwelling. It was noted that the current offending occurred after arrest for the earlier matters but before they had been finalised.
[9] The District Court Judge noted that the appellant was willing to attend restorative justice however the victim was not. The Judge referred to the victim impact report and then turned to the pre-sentence report saying that it was a detailed pre‑sentence report — noting that the appellant’s offending seems to have escalated and that violence is emerging as a risk concern.
[10] The sentencing Judge said that the offending risk was assessed as low and risk of harm as moderate. The Judge noted that the appellant was said to be remorseful for the offending. The pre-sentence report gave some detail about background in terms of anger and hostility and recorded the offending factors as anger, hostility, poor intimate relationships, impulsivity and low mood.
[11] The sentencing Judge was understandably critical of the pre-sentence report which gave an unrealistic recommendation of supervision and did not even consider home detention as part of the recommendation despite that being directed by the Court. Both Crown and defence accepted a starting point of over two years’ imprisonment and the sentencing Judge noted that it was difficult to reconcile the seriousness of the offending with the outcome recommended in the pre-sentence report.
[12] The starting point sought by the Crown was between two and a half and three years’ imprisonment with an uplift of three months’ imprisonment for the wilful
damage charge. Defence counsel sought a starting point of two years, one months’ imprisonment.
[13] The sentencing Judge commented that he was surprised that there were no letters of remorse and that there was no cultural report.
[14] His Honour noted that violence of this nature is utterly unacceptable both against someone personally and against their car especially while there were children in the car. The key aggravating factors were:
(a)The extent of the violence. The sentencing Judge noted that the victim was punched in the head multiple times before being struck with a metal socket extension bar. There were at least five blows recorded in the summary of facts.
(b)Actual injury occurred namely an open wound to the scalp requiring five staples to close as well as bruising and a black eye.
(c)The impact on the victim, as set out in the victim impact statement being psychological harm, also involving children who were present.
(d)A level of premeditation because the appellant armed herself with a weapon before rushing outside.
(e)The use of a weapon to facilitate the assault. While it was noted this was not a lethal weapon, it was used and directed towards the victim’s head.
[15] The sentencing Judge adopted a starting point of two years and six months’ imprisonment for the wounding with intent to injure charge. This was uplifted by three months for the wilful damage charge, leading to an overall starting point of two years and nine months’ imprisonment.
[16] The sentencing Judge noted that the guilty plea was late and the Crown case was strong. His Honour gave a generous credit of 10 per cent for guilty plea. At [37] of his decision, his Honour said:
I am dissatisfied with the amount of information that I have before me because I consider that there could have been a lot more placed before me. It just has not been. I do not know what amount of discount to give you for your rehabilitative journey and your remorse, but I consider that it should be somewhere between five and 10 per cent and I intend giving you 10 per cent, which I think again is relatively on the generous side.
[17] The total credit given for guilty plea and rehabilitation and remorse was 20 per cent. That was rounded up to a seven-month credit resulting in an end sentence of two years and two months’ imprisonment.
[18] His Honour said that the appellant had a young daughter and discussed the difficulty that young children have with parents in custody. His Honour said:
[41] I wish I had had more information before me. I wish I had had additional factors that I could have used to give you further discounts. I simply do not know where to turn for further discounts other than the ones that I have given you. This was a case that screamed out for early resolution, an early plea, high discount for guilty plea and remorse and you would have no doubt reached a threshold of two years or under. It is one that has been played out until one week before your jury trial was going to commence and you do not have the benefit of other discounts.
[42] In the circumstances here, I am satisfied that your daughter will be in good care with family members and I am left in the awful position for a judge that I will be imposing a fulltime custodial sentence of two years, two months imprisonment. You do not reach the threshold for a lesser sentence. I wish that I had had more information which might have meant that a less restrictive sentence could have been imposed. I simply do not have that type of information before me.
Discussion
[19] Following sentencing there was a change of counsel. New counsel obtained a s 27 report and seeks to place that before the Court on appeal. It is placed before the Court on the basis that it is fresh evidence. Whilst it is not truly fresh in that the report clearly could and should have been obtained prior to sentencing, evidence that is not fresh may be admitted if the circumstances are exceptional or the grounds are
compelling. Particularly cogent evidence is properly admitted on appeal even where the evidence is not actually fresh.2
[20] In this case the guilty plea came late and, because the trial date was close, there was no opportunity for a sentence indication hearing which would certainly have highlighted the potential relevance of a s 27 report. The lateness of the plea is due to the appellant’s actions but her living situation makes it explicable. She has a young daughter and had worked hard to regain custody and was apparently taking some positive steps when this violent incident occurred. A guilty plea would have taken her away from her child and it is understandable that she foolishly sought to delay the inevitable.
[21] The respondent submits that the sentence imposed was not manifestly excessive and that even with the s 27 report the likely overall credit for personal mitigating factors would not have decreased the sentence to a level where home detention could be considered. The Crown does concede today that if the sentence does reach the threshold, then home detention would likely be an appropriate outcome.
[22] I consider that the s 27 report does contain matters which are relevant to the level of credit available. It is sufficiently cogent to be admitted on appeal. Given the comments by the sentencing Judge, I consider that if His Honour had the s 27 report a further small discount would inevitably have been granted. There is force in the Crown submission that the discounts might well have been differently assessed and that the overall credit given is close to the appropriate level.
[23] The s 27 report demonstrates that the appellant has suffered deprivation in terms of her exposure to violence in her personal relationships. She is still young, and she has had violence normalised in her relationship with various partners. Her perception of her parents’ relationship was not positive but there was no violence. In many ways she had a positive childhood but she did fall into violent and difficult relationships with men at an early age and she struggled with some relationships with
2 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at [193].
her peer group and with schooling. Her reaction on this occasion was completely violent and unacceptable but she shows some insight, and the s 27 report does provide some causal nexus between her own challenges and her reaction to a perceived wrong.3
[24] I consider that, had the s 27 report been available at sentencing, the overall credit would have lifted slightly from 20 per cent to 25 per cent. A willingness to apply further credit if that credit could be justified is apparent from the sentencing Judge’s decision.
[25] Ordinarily, I would agree that such a small difference in the available credit would amount to tinkering but, in this case, an additional five per cent brings the end sentence to a level where home detention could properly be considered. That is a very significant change and for that reason I would allow the appeal and apply the further credit.
The sentence
[26] The sentence starting point was two years and six months uplifted by three months to reach an overall starting point of 33 months. The original credit reduced the sentence to two years, two months and about two weeks, which was rounded down by the sentencing Judge to two years and two months.
[27] The increased credit on appeal of 25 per cent results in an end sentence of just over two years’ imprisonment (over by a week or two). The sentencing Judge adjusted the sentence in the appellant’s favour to reach a sentence of two years and two months. Taking the same approach, I would reduce the end sentence to two years’ imprisonment.
[28] Commutation to home detention is far from automatic. But in the present case the appellant has never before been sentenced to imprisonment. She has a young child and it is desirable to maintain the relationship between the appellant and her child. She has now spent over two months in custody. I find that home detention
3 Berkland v R [2022] NZSC 143 at [108]–[111].
would be the least restrictive outcome available and would be sufficient to address the principles and purposes of sentencing.
[29] The availability of home detention also depends on the availability of a suitable address. I have a brief home detention report which states that the proposed address is assessed as technically feasible. Police and Corrections have not yet responded to the request for information about the address and I do not have enough information to decide whether the sentence of two years’ imprisonment should be commuted to home detention at the proposed address. If it is, there will need to be an allowance for the period spent in custody.
Result
[30] I propose to allow the appeal and reduce the sentence to a sentence of two years’ imprisonment.
[31] Leave is granted to the appellant to make an application for home detention pursuant to s 80I of the Sentencing Act 2002.
Wilkinson-Smith J
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