MATTHEWS v R [2019] NZCA 208

MATTHEWS v R [2019] NZCA 208 [11 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA766/2018[2019] NZCA 208BETWEEN KEVIN MARTIN MATTHEWSAppellantAND THE QUEENRespondentHearing: 20 May 2019Court: Kós P, Peters and Mander JJCounsel: P J Kaye for AppellantD G Johnstone for RespondentJudgment: 11 June 2019 at 11:30 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is granted.B The appeal against sentence is allowed.C The sentence of 25 months' imprisonment is quashed and a sentence of22 months' imprisonment is substituted.D Leave is granted to apply for cancellation of this sentence and substitution ofa sentence of home detention.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial in the District Court at New Plymouth, Mr Matthews wasconvicted of two charges of possession of materials and one of possession ofequipment, in each case with the intention that the same be used in the manufacture ofmethamphetamine. The jury acquitted Mr Matthews of the other offending with whichhe was charged, namely manufacturing methamphetamine.[2] Judge Glubb sentenced Mr Matthews to 25 months' imprisonment.1Mr Matthews appeals against that sentence on the ground that it was manifestlyexcessive.Background[3] Mr Matthews was 50 years of age at the time of sentence. He has convictionsfor unrelated offending prior to 2000. Mr Matthews did not offend again after that for12 or so years, a substantial hiatus and one that the Department of CorrectionsProvision of Advice to Courts report (PAC report) ascribes to Mr Matthews' regularemployment and his recovery from problems with alcohol.[4] In 2013 Mr Matthews was convicted of cultivating what must have been amodest quantity of cannabis (Mr Matthews was sentenced to 200 hours of communitywork). The current offending then followed in 2016, offending Mr Matthewsattributes to his involvement with "anti-social associates" and an addiction tomethamphetamine. By the time of the PAC report in late 2018, however, Mr Matthewswas again employed and had gone to some effort to rehabilitate himself and rid himselfof his addiction to methamphetamine. Although his stay at a detoxification centre hadbeen short-lived, evidence from two counsellors that Mr Matthews consulted showsthat 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 calledfor.Discussion[5] There is no dispute as to the Judge's starting point of 28 months' imprisonment.1 R v Matthews [2018] NZDC 24135 [Sentencing notes]; and Misuse of Drugs Act 1975,s 12A(2)(a).[6] We agree that Mr Matthews' efforts to rehabilitate himself are impressive andonly to be encouraged, but we are not persuaded that the Judge was required to give adiscount of more than 10 per cent. As the Judge said, that is a reasonably generousdiscount for rehabilitative steps.2[7] That said, we do propose to reduce Mr Matthews' sentence by a furtherthree months, to 22 months' imprisonment, to reflect two matters. First, and as wehave said, it is apparent from the PAC report that Mr Matthews' offending reflectedhis addiction to methamphetamine. We accept a causative link between addiction andoffending is established, and the scale of the offending does not require this mitigatingconsideration 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 thatthis 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 tolight when Mr Matthews was examined on beginning his sentence.[8] As to home detention, and as Mr Johnstone accepted, the nature ofMr Matthews' offending does not of itself require imprisonment if a suitable addressis or becomes available. Given that, we grant Mr Matthews leave to apply to cancelhis sentence of imprisonment and for substitution of a sentence of home detention.4Taking into account time already served, we consider any substitute home detentionsentence imposed today should be eight months.Result[9] The application for leave to adduce further evidence is granted.[10] The appeal against sentence is allowed. We:(a) quash the sentence of 25 months' imprisonment and in its placesubstitute a sentence of 22 months' imprisonment; and2 Sentencing notes, above n 1, at [22].3 Wheeler v R [2017] NZCA 193 at [13]; and Martel v R [2018] NZCA 305 at [30].4 Sentencing Act 2002, s 80K.(b) grant leave to apply for cancellation of this sentence and substitution ofa sentence of home detention.Solicitors:Crown Solicitor, Auckland for Respondent