R v Matagi Ca14/02

[2002] NZCA 344

IN THE COURT OF APPEAL OF NEW ZEALAND   CA 14/02

THE QUEEN

V

VAIUTA MATAGI Hearing:      29 April 2002

Coram:   Richardson P Robertson J Panckhurst J

Appearances:   F E Guy for Crown

G J King and C J Nicholls for Respondent

Judgment:   29 April 2002

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

Introduction

[1]      The Solicitor-General  seeks leave to appeal against concurrent  sentences  of

6½ years imprisonment imposed on the respondent on two charges of wounding with intent to cause grievous bodily harm and three years imprisonment, to be served concurrently,   on  one  charge  of  detaining  the  two  victims  and  one  charge  of aggravated burglary.   The respondent pleaded guilty to the four counts following the withdrawal by the Crown of two attempted murder charges.    The Crown contends that the sentence was manifestly inadequate.

Background facts

[2]      At around midnight on 4 May 2001, after becoming aware that evening that his former partner was involved in a new relationship, the respondent broke into their home through an open window.   Armed with a machete and a hammer he entered the couple's bedroom and turned on the light waking his former partner.    As she sat up and called out the appellant struck her in the head with the hammer.     Her partner (whom she had married 5 months previously) then woke to find the respondent aiming the machete at his head.    As he raised his right arm to stop being hit in the head the machete partially severed his hand.   The respondent then commenced a sustained and prolonged attack over a period of two and half hours in which he beat, cut and stabbed both victims numerous times with the machete and the hammer.    During the attack, the victims were both confined to the bedroom.

[3]      At about 2.30am the respondent  told the husband to go to the bathroom to clean himself up.     On his way to the bathroom he collapsed in to a state of unconsciousness.   The respondent then told his former partner that he was leaving the house  and  she  was  coming  with  him.      She  was  lucky  enough  to  escape  to  a neighbour’s address where the police were alerted.

[4]      When apprehended the respondent admitted the attack.   He told the probation officer preparing the pre-sentence report that he was armed with the machete for his own protection;  that he felt shamed and wanted to know the truth;  that his intention was to teach them a lesson;   and that he became more and more angry but did not believe that he lost control.

[5]      Both  victims  required  hospitalisation.      The  male  victim  suffered  major injuries requiring hundreds of stitches and suffered extensive blood loss.    He had extensive  surgery  for the facial and wrist wounds  and requires  further  operations. The female victim received facial cuts which required multiple stitching, extensive bruising, nerve loss and a broken leg as a result of being beaten with the hammer. She, too, requires further surgery.

Sentencing

[6]      All of the charges concerned carry a maximum term of 14 years imprisonment, but because this case involved a home invasion the maximum sentence on each of the charges was 19 years imprisonment.

[7]      In its written submissions  the Crown submitted  that an appropriate  starting point should be in the region of 10 years imprisonment and that an additional 2 to 3 years imprisonment should be added to that for the home invasion aspect, before considering   any  mitigating  factors.       However  the  Judge,  mistakenly  Ms Guy submitted,  recorded  that  the  Crown  said  that  the  proper  sentence,  without  home invasion, was in the second category in R v Hereora  [1986] NLR 164 of 5 to 8 years imprisonment.

[8]      The Judge concluded "a proper sentence" would be six years imprisonment. Two years was added to that for the home invasion element.   An eight-year sentence was then reduced to six and a half years taking into account the mitigating factors. Aggravating features were the degree of planning and the use of weapons, the home invasion aspect and the duration and severity of the attack.    Mitigating factors were that the respondent, aged 58, was a first offender with excellent supportive references, his guilty plea and his sense of shame and upset on learning from others that after his

5 year relationship and what he thought was a temporary separation she had entered into another relationship.

Appeal to this court

[9]      On   appeal   the   Crown   submitted   that   the   base   sentence   of   six   years imprisonment was inadequate given that there were two victims and substantial aggravating features.     Secondly, the two years for the home invasion element was also inadequate.    It was submitted that the starting point should have been 13 years before reduction for mitigation factors were considered and that 11 years was the minimum which could properly have been imposed in this case.

[10] It was argued that the respondent fell within the third category identified by this Court in Queen v Hereora [1986] 2 NZLR 164, where sentences between eight to twelve years imprisonment are appropriate. The Crown submitted that a starting point of at least 10 years was appropriate before considering the home invasion element and mitigating factors. An additional three years imprisonment should then be added on for the home invasion element.

[11]     The aggravating  features  in this case include:  the fact that this was a pre- meditated attack in which the respondent was armed with two weapons;  a prolonged attack in which the weapons were used in a repeated manner; serious injuries were inflicted on two victims;   the duration of the attack; the fact that the incident only ended after the female victim was able to escape;   and the severe physical and psychological   effects   on  both  victims.       The   mitigating   factors   include:   the respondent’s admission to the basic elements of what happened virtually immediately although he down played what had happened; feelings of shame over the breakdown of his relationship; the loss of his job two days earlier; first time offending at the age of 58 years;  excellent references;    and the fact that he pleaded guilty, although not the earliest plea of guilty.

[12] Mr King for the respondent submitted that the sentence imposed by the sentencing Judge was appropriate in all the circumstances and was well within the range available to him. He contended that this was not a case which came within the third category identified in Hereora, where unusually grave aggravating features are present. The Judge, he submitted, was correct in placing the respondent in the second category. Consideration should be given to the fact that the respondent is a first time offender at the age of 58 years, as opposed to youth offenders who have previous convictions (R v Mako [2000] 2 NZLR 170) and to the sense of same and turmoil that led to this offending. Furthermore, the respondent’s counsel argued, the Crown’s starting point of 13 years included an element of double dipping by counting the home invasion element twice.

[13]     We  are  satisfied  that  the  sentence  imposed  in  this  case  was  manifestly inadequate.     The starting point, allowing for the statutory home invasion element, would have to be no less than 12 to 13 years before allowing for mitigating factors.

The  second  category  in  Hereora  (5 to 8  years)  is  reserved  for  cases  exhibiting  a combination  of  aggravating  features,  and  the  third  category  (up  to  12 years)  is imposed where unusually grave aggravating features are present, that is before an appropriate special addition is made for the home invasion element.

[14]     This  offending  clearly  falls  within  that  third  category.      The  aggravating features are unusually grave.   It was premeditated and late at night.   The respondent went to the house and straight to the bedroom.   Armed with a machete and a hammer he immediately  attacked  the victims  in their bed.     Over more than two hours he detained them there and inflicted repeated blows, causing serious enduring injuries. Not surprisingly,  the scale of the violence,  the duration  of the offending,  and the serious injuries they sustained in this dreadful episode, have had a profound physical and psychological effect on both victims.

[15]     The  sentencing   Judge  may  have  inadvertently   run  the  Crown's  written submissions together and focussed on the 10 year starting point originally mentioned as if it included the home invasion aspect.   In any event, we are satisfied that this is a third category Hereora  case.    The aggravating features are indeed unusually grave. And  while  invasion  of  the  privacy  of the  home  was  and  is often  an  aggravating feature, an additional penalty is now required under the home invasion statutory provisions,  the  additional  term  imposed  having  regard  to  the  allowance  in  that connection in setting the first starting point, in order to avoid double counting.    The assessment may be taken here in two steps, at least 9 to 10 years plus 3 years under the statute or, overall, at not less than 12 to 13 years, with allowance then to be made for  mitigating   factors.       Giving  full  weight  to  those  factors,  particularly   the respondent's  first time offending and his guilty plea, 3 years should be allowed by way of reduction.

[16]     For the reasons given the application for leave to appeal is granted, the appeal is allowed,  the lead sentence  of 6½ years  imprisonment  is quashed,  and in lieu a sentence of 9 years imprisonment is imposed.

Solicitors

Crown Law Office, Wellington