MATCHITT v NEW ZEALAND POLICE [2023] NZHC 1745

MATCHITT v NEW ZEALAND POLICE [2023] NZHC 1745 [5 July 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-15[2023] NZHC 1745BETWEEN KINGI FLOYD MATCHITTAppellantAND NEW ZEALAND POLICERespondentHearing: 5 July 2023Counsel: N Bourke for the AppellantH Bullock for the RespondentJudgment: 5 July 2023JUDGMENT OF GWYN JIntroduction[1] The appellant, Kingi Matchitt, appeals his sentence1 of 25 months'imprisonment in respect of two charges of burglary2 and one charge of theft3 againstthree victims in three separate incidents.[2] Mr Matchitt pleaded guilty to all charges.[3] The appellant has 35 previous convictions, the most serious being a burglaryconviction for which he was sentenced to three years' imprisonment. He has 15previous convictions for burglary, seven previous convictions for shoplifting and threeprevious convictions for theft, although I note they are not recent convictions.1 New Zealand Police v Matchitt [2023] NZDC 102320.2 Crimes Act 1961, s 231(1)(a). The maximum sentence is 10 years' imprisonment.3 Sections 219 and 223(d). The maximum sentence is three months' imprisonment.The offending27 September 2022[4] The offending leading to the theft charge and the first burglary charge occurredon 27 September 2022, at two separate addresses.[5] At approximately 9.16 am the first victim was operating his business from hishome in Murrays Bay, Auckland. The appellant drove onto the victim's driveway andentered the victim's shop. The appellant asked whether the victim sold jewellery orany other luxury items and the victim responded no, explaining that he only sellsproducts relating to pets. The appellant asked for 15 dog harnesses. When the victimwas retrieving the harnesses from the back of his shop, the appellant went to the frontof the house and peered through a window before returning to the shop to check thatthe victim was still occupied, and then running to the front door. At the front door, thedefendant grabbed a pair of Adidas Yeezy shoes, valued at $370, and put the shoes inhis pants before walking back to his vehicle and driving away. The appellant wasunder the influence of cannabis at the time.[6] Between 11.15 am and 11.41 am on the same day, the second victims' addressin Sunnynook, Auckland was burgled. The couple who lived in the house arrivedhome at 12.25 pm to find their property scattered around the house and a high-visjacket in the lounge that neither victim owned. The appellant's DNA was identifiedon the jacket. The appellant was identified on CCTV footage moving to and from thevictims' property, carrying several items out of the property on each occasion. Thefootage showed the appellant arriving in a high-vis vest and then leaving without one.The items stolen from the victims' property had a combined value of $62,080. Theyincluded nine designer handbags, 10 pairs of designer shoes and one designer scarf.The appellant traded the stolen goods for cash and cannabis.[7] The victims of the Sunnynook burglary provided victim impact statements tothe Police on 22 May 2023. One of the victims said she has suffered extremely seriousfinancial loss and trauma as a result of the burglary, culminating in suicidal thoughts.28 January 2023[8] The second burglary occurred on 28 January 2023.[9] The appellant entered the Cinema Express Bar and Café in New Plymouth at9 pm. The appellant went into the staff-only area and removed a package containing$20,000 of cash from an open safe in the victim's office before leaving the premiseswith the package. The appellant had not smoked cannabis on this day. He explainedthat when he was looking for a bathroom, he happened across the staff-only area, foundthe safe which was unlocked, and a demon told him to take the cash.[10] The victim provided a victim impact statement on 2 May 2023. He explainedthat the burglary has caused him profound stress and anxiety and as a result of theburglary he has been unable to pay his tax bill, which is now accruing interest.Procedural history[11] On 23 March 2023 the District Court granted Mr Matchitt electronicallymonitored (EM) bail. He has remained on EM bail since this date.[12] On 23 May 2023 Judge Harrison in the New Plymouth District Court sentencedMr Matchitt to 25 months' imprisonment in respect of the two charges of burglary andone charge of theft.[13] The Judge adopted a starting point of three years and seven months'imprisonment, comprising three years and six months for the two burglary chargeswith a one-month uplift for the theft charge. The starting point reflected Mr Matchitt'sprevious convictions for burglary and other offending involving dishonesty.[14] The Judge applied a 25 per cent discount for Mr Matchitt pleading guilty to allcharges and a 10 per cent discount for his remorse, successful participation inrestorative justice and for cooperation with the Police. The Judge gave a furtherdiscount of one month for Mr Matchitt's $5,000 reparation payment and one monthfor the time he spent on electronically monitored (EM) bail pending sentencing.[15] The Judge did not apply any discount for background factors as detailed in thecultural report filed under s 27 of the Sentencing Act 2002 and the Department ofCorrections' Provision of Advice to Courts (PAC) report. The Judge considered thebackground factors did not provide a causative contribution to the appellant stealingthe goods and cash.[16] The end sentence was 25 months' imprisonment.[17] The Judge said, obiter, that she would not have converted the sentence to homedetention even if the end sentence had been 24 months, saying " it is inconceivablethat you would be granted home detention in these circumstances."4 The Judge formedthis view because of her assessment that the appellant's employment, health conditionand support from his partner and her family had not been protective factors against theoffending. The Court also had regard to the negative impact of the offending on thevictims.SubmissionsFor the appellant[18] Mr Bourke, for the appellant, accepts the starting point, but submits that theDistrict Court should have arrived at an end sentence of two years' imprisonment orless and then converted the sentence to one of home detention.[19] The 25 per cent discount applied for the appellant's guilty plea, was themaximum discount available. The appellant accepts the 10 per cent discount for hisremorse, although counsel notes this discount was the very least available whenreflecting on the additional fact that the appellant handed himself into the Police andconfessed to his offending.[20] The appellant submits the Judge largely dismissed the background factorsraised in the cultural report and declined to discount the sentence in response to thereport. The matters raised in the report include parental incarceration, family violence,exposure to and normalisation of crime from an early age, and drug dependence from4 New Zealand Police v Matchitt, above n 1, at [37].a young age. In the appellant's submission, relying on Berkland v R,5 his backgroundfactors made a causative contribution to his offending as they explain how he came tooffend. Therefore, the Judge erred in declining to discount the sentence in respect ofthe cultural report.[21] The appellant further submits that the one-month discount —approximately2.3 per cent of the sentence — that the Judge applied for the appellant payingreparation6 was manifestly inadequate. The appellant offered to pay $5,000 as a lumpsum (Mr Bourke advised that Mr Matchitt has now accumulated $6,000) andundertook to pay an additional $200 per week if he worked while serving a sentenceof home detention. With the orthodox limit of five years on such reparation payments,the appellant would pay a total of $57,000 as reparation. As Mr Bourke emphasised,that is a very significant amount for a person in manual work. Counsel refers toManukailea v Police where a $10,000 reparation payment resulted in a 15 per centdiscount.7[22] The appellant accepts the one-month discount that the Judge applied torecognise the appellant had been on EM bail for approximately two months. However,while awaiting the determination of this appeal, the appellant has spent a further sixweeks on EM bail without incident. Counsel submits a further one-month discountshould be applied to reflect this additional time spent on bail.[23] Counsel submits the Judge erred by failing to have regard to the need to imposethe least restrictive outcome appropriate in the circumstances. Counsel notesimprisonment is the most restrictive outcome in sentencing and refers to the obitercomments of the Judge that she would not have entered a sentence of home detentioneven if the eligibility threshold was reached.[24] Counsel refers to four previous similar cases where the High Court convertedsentences for burglary to home detention on appeal.85 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.6 Sentencing Act 2002, ss 9(2)(f), 10 and 7(1)(d).7 Manukailea v Police [2014] NZHC 2647.8 Barbour v New Zealand Police [2020] NZHC 2707; Tafere v New Zealand Police [2020] NZHC3303; Taukiri v New Zealand Police [2021] NZHC 3103; and Ware v New Zealand Police [2021]NZHC 3320.For the respondent[25] Ms Bullock, for the respondent, submits the Court should dismiss the appealbecause the sentence was not manifestly excessive and home detention would not beappropriate, irrespective of the length of the end sentence.[26] Counsel draws the Court's attention to a mathematical error in the endsentence. The Judge adopted a starting point of three years and six months'imprisonment for the burglary charges, uplifted by one month for the theft: a total of43 months' imprisonment. The Judge applied discounts totalling 35 per cent, bringingthe sentence down to 28 months. Then the Judge discounted a further two months,giving an end sentence of 25 months' imprisonment. The respondent submits the endsentence should have been 26 months if the discounts were correctly applied.[27] The respondent submits the Judge correctly found that the appellant'sbackground factors as described in the s 27 report are not proximate causes of theoffending in this case. Rather, the respondent notes that the cultural report says theappellant met his partner after his last release from prison and this relationship hashelped him to turn his life around.[28] The respondent notes the total discount applied for remorse, the offer to payreparation and the participation in restorative justice amounted to about 12 per cent.There is no discernible error, in the respondent's view, with this discount.[29] The respondent further submits that the Judge correctly considered theprinciples of sentencing and correctly reached a conclusion that she would not haveconverted the sentence to home detention even if the end sentence was a short sentenceof imprisonment.[30] The one-month discount for time spent on EM bail is within range. Discountsof this nature tend to fall within 30 and 50 per cent of the time spent on EM bail.9Therefore the respondent submits that a further one-month discount would be too high9 Paora (CA319/2020) v R [2021] NZCA 559 at [53]; and Parata (CA344/2016) v R [2017] NZCA48 at [12] and [15].because a total two-month discount is more than 50 per cent of the three-and-a-halfmonths on EM bail.Relevant law[31] An appeal against sentence is an appeal against the Judge's discretion. Unders 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if itis satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[32] Despite the statute making no express reference to "manifestly excessive", thisprinciple is well-established in the court's approach to sentence appeals.10 An appealcourt must not tinker with the end sentence if the end sentence is within range.11 Thefocus is more upon the end sentence than the process by which the Judge reached thatend sentence.[33] In Moses v R, the Court of Appeal introduced a general two-step approach tosentencing.12[34] The first step requires the Court to calculate the starting point incorporating theaggravating and mitigating factors of the offence, considering consistency with similaroffending.[35] At the second step the starting point is then adjusted to incorporate theaggravating and mitigating factors personal to the offender, including any guilty pleadiscount. The end sentence should reflect the totality of the offending and, barringother considerations, be the least restrictive outcome that is appropriate in thecircumstances.10 Ripia v R [2011] NZCA 101 at [15].11 At [15].12 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].AnalysisSentencing test: stage one[36] Both parties accept the starting point of three years and seven months'imprisonment. This starting point reflects the recidivist nature of the burglaries,13 thelocation of one of the burglaries being a residential property14 and the value of thestolen goods.15Sentencing test: stage two[37] In my view, there are no aggravating factors. There are mitigating features.Cultural report[38] The first mitigating factor is the appellant's background. In my view, the Judgeerred in declining to discount the appellant's sentence in respect of the backgroundfactors detailed in his cultural report and PAC reports. These reports say Mr Matchittwas born to a 15-year-old mother and was predominantly raised by his mother as hisfather regularly spent time incarcerated. His father was a member of the Mongrel Mobbut Mr Matchitt himself is not a gang member. He experienced an impoverishedchildhood, one of five children, and started stealing from shops when he was inprimary school. During his teenage years he regularly drank alcohol, smoked cannabisand committed burglaries. He stopped smoking cannabis and drinking alcohol withthe help of his partner who he met shortly after an imprisonment sentence, in 2014.His job at the Hāwera meatworks has also provided stability in his life and helped himto avoid antisocial influences. However, in 2022, the appellant relapsed into thebehaviours from his lifestyle he had changed approximately eight years earlier. Thepresent offending occurred when Mr Matchitt met with former associates in Aucklandand slipped back into the patterns from his earlier years.13 The District Court cited Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; and Senior v Police(2000) 18 CRNZ 340 (HC).14 The District Court cited Wardle v R [2015] NZHC 915; Harrison v R [2011] NZCA 80; and Marshv R [2010] NZCA 445.15 The District Court cited R v McAllister (2001) 18 CRNZ 606 (CA); Burton v R [2018] NZCA 355;Wishnowsky v Police HC Palmerston North CRI-2009-454-000026, 4 August 2009; and Hamiltonv Police [2016] NZHC 938.[39] The Supreme Court in Berkland v R said that where background was an"operative" or proximate" cause of the offending it is likely to be a "potent" sentencingfactor.16 The Court went on to say however that requiring operative or proximate causein every case sets the bar too high:17[40] The Court said:18 We prefer the Carr standard of causative contribution. It capturesbackground factors that are, as we explain below, the more diffuse drivers orthe intergenerational sources of offending; factors that would be excluded asinsufficiently connected under a stricter causation standard. Thesecontributory factors are important because they can provide rationalexplanations for why an offender has come to offend. Contributory mentalillness can still explain why an offender is living in the chaotic or conflictualcircumstances that made the offending more likely. Contributory addictioncan help to explain why an offender was drawn into the commercial drugdealing environment. Contributory deprivation, including that precipitated byhistorical dispossession and sustained by poor educational and otherintergenerational outcomes, can help to explain an offender's limited lifeoptions, poor coping skills or other criminogenic circumstances that made theoffending more likely. Where these factors do help to explain how the offendercame to offend, they will amount to causative contribution and so will berelevant for the purpose of sentencing.[41] As the Supreme Court made clear, although "causative contribution" is a lowerstandard than operative or proximate cause, it must still be satisfied.19[42] I therefore go on to consider whether the background factors as set out in thecultural and PAC reports do provide logical explanation, at least in part, forMr Matchitt's offending. In my view, the appellant's offending cannot be divorcedfrom his history of economic deprivation and substance addictions. As the culturalreport observes, many studies suggest that parental incarceration during childhoodincreases the child's risk of adult criminality and parental detachment is linked tocriminal behaviour during childhood and adolescence. The report suggestsMr Matchitt's offending is linked to intergenerational offending, given his father'sincarceration and the limited attachment he had to his mother. He grew up in anenvironment where crime was normalised and normal in response to hardship. He16 Berkland v R, above n 5, at [108].17 At [109].18 At [109] (footnotes and citations omitted).19 At [110]learned to offend as a survival skill. As the report notes, research indicates thatsubstance use is greater among people whose family members have histories of drugabuse.[43] Mr Matchitt's impoverished upbringing made a causative contribution to hisearly offending — financial instability provides a logical explanation for Mr Matchittstealing. Moreover, the appellant had exposure to substance abuse and dependence ata young age, which continued throughout his formative years. Consumption ofcannabis and alcohol are common features in his offending.The appellant had demonstrated a commitment to living a sober and law-abiding life,supported by his partner and her family, for some years before the present offending.However, it goes without saying that recovery and rehabilitation is not a linear path.The present offending appears to have occurred during the appellant relapsing into thesubstance abuse patterns of his past, and this relapse finds a logical explanation in thesubstance abuse and early substance exposures, which the cultural and PAC reportsaddress.Rehabilitation[44] Before the District Court hearing, the appellant was referred to Four Waitara,a Taranaki-based service under the Te Whatu Ora umbrella, for treatment of his drugand alcohol addictions. At the time of the District Court proceeding, he was receivingongoing counselling.20[45] In my view, a 10 per cent discount is appropriate to apply in respect of thebackground factors addressed in the s 27 report and Mr Matchitt's steps towardsrehabilitation.Reparation[46] I agree with Mr Matchitt's counsel that the one-month discount for reparationis a niggardly figure, given his health and earning capacity and the significant amount20 New Zealand Police v Matchitt, above n 1, at [17].proposed to be paid. But having regard to the other discounts, and the totality of thesentence, I do not propose to increase that discount.Error in calculation[47] I note the Crown's submission that the Judge made a mathematical error incalculating the sentence, applying a one-month discount to 28 months and arriving at26 months. The further one-month discount took the sentence down to 25 months.Mathematical errors that favour the defendant cannot be corrected on appeal unlessthat error has resulted in a manifestly inadequate sentence. The error here does notmeet that standard. I would not increase the appellant's sentence on appeal in thesecircumstances.Time on EM bail[48] I accept the respondent's submission that the one-month discount for the timespent on EM bail pending sentencing is within range. I will not apply an additionaldiscount for time spent on EM bail pending the disposition of this appeal.Sentence calculation[49] I accept the starting point, three years and seven months' imprisonment,applied in the District Court.21[50] I accept all existing discounts the District Court applied. Namely, 35 per centand two months.[51] As I found above, I will not correct the minor mathematical error made in thesentence calculation in the District Court. Those discounts lead to a term of 25 months'imprisonment.[52] I then apply a further 10 per cent discount, having considered the mitigatingbackground factors and the prospects of rehabilitation. The end sentence is then 21months imprisonment, rounded to the nearest whole month. One month of the 2121 At [30].months' imprisonment applies in respect of the theft charge; 10 months' imprisonmentapply in respect of each of the two burglary chargesSuitability for home detention[53] The eligibility threshold for home detention is 24 months' imprisonment.Therefore, with the adjusted sentence, Mr Matchitt is eligible to have his sentenceconverted to home detention. I go on to consider Mr Matchitt's suitability for homedetention.[54] The critical factor in this assessment is that the Court must not impose asentence of imprisonment unless the purposes of sentencing22 could only be achievedby that custodial sentence.23 The High Court summarised the additional factorsrelevant to the Court's assessment when deciding between a sentence of imprisonmentor home detention in Brittin v New Zealand Police:24(a) Imprisonment is a measure of last resort.(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.22 Sentencing Act, s 7.23 Section 16(2)(b).24 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall the purposes of sentencing.[55] With respect to Mr Matchitt's appeal, my assessment of the balance of the s 16factors supports a sentence of home detention. Mr Matchitt's rehabilitation will bebest served in a prosocial environment. At home he has the prosocial support andinfluence of his partner and her family. I do not consider that imprisonment wouldprovide comparable, prosocial support. Whilst serving a sentence of home detention,Mr Matchitt has access to substance abuse counselling, which will better meet hisrehabilitation needs and keep him in the community. I have received a letter from thealcohol and drug counselling service which has been working with Mr Matchitt. Thatletter expresses the opinion that, if Mr Matchett continues to engage with the serviceand implement the strategies he is learning there, his prognosis for the future will bevery positive.[56] The PAC report notes that Mr Matchitt has health issues which would receivethe best treatment if he served a non-custodial sentence. Mr Matchitt has previouslyhad a bleed on his brain stem which increases his risk of haemorrhage in his brain bytwo per cent each year. I agree that a sentence of home detention would better assistin managing Mr Matchitt's health.[57] I am conscious of the need to protect public safety, but I note the offending wasnot violent and, in any event, I consider the conditions of home detention willsufficiently mitigate any risk to the community that Mr Matchitt might reoffend.Although home detention is the least restrictive sentencing option available in thiscase, there is no doubt that home detention is itself a severe sentence which, in myview, will contribute to the deterrence and denunciation purposes of sentencing.[58] Also relevant is the Supreme Court's comment in R v Berkland, where it said" background factors will be most meaningful where the potential sentence is at themargin between imprisonment and a community-based sentence."25 In Mr Matchitt's25 Berkland v R, above n 5, at [112].case, the District Court imposed a sentence just one month over the eligibilitythreshold for a non-custodial sentence of home detention. This case is plainly onewhich can be characterised as being at the margin between imprisonment and acommunity-based sentence.[59] At the time of this sentence appeal, Mr Matchitt has been on bail forapproximately three-and-a-half months. The Court is not aware of any complianceissues during this time, which gives me confidence that Mr Matchitt would complywith the conditions of a home detention sentence. Further, the appellant's Hāweraaddress is an approximately six-hour drive away from his antisocial associates inAuckland. I consider this distance will help to mitigate the risk of the appellantreoffending.[60] The PAC report recommended that Mr Matchitt receive a non-custodialsentence due to the gap in his offending, the supportive prosocial environment that hispartner and her family provide, stable employment and upcoming medicalappointments. The report assessed the appellant's risk of reoffending as medium tohigh. The report recommended home detention to be served at his Hāwera address,which was assessed as technically suitable.[61] I consider the purposes of sentencing can be met by a sentence of homedetention and it is not necessary to impose the measure of last resort, imprisonment.[62] The PAC report recommended the following conditions if a sentence of homedetention were imposed:(a) Not to possess, consume or use any alcohol or drugs not prescribed toyou.(b) To attend an assessment for Short Rehabilitative Programme orequivalent as directed by a Probation Officer. To attend and completeany counselling, treatment or programme as recommended by theassessment as directed by and to the satisfaction of a Probation Officer.(c) Not to communicate in any way or associate with previous co-offendersor antisocial peers, without the prior written approval of a ProbationOfficer.(d) To attend and complete an appropriate Alcohol and Drug Education orCounselling to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme shall be determined by aProbation Officer.[63] The appellant has offered to pay $200 per week as reparation. AlthoughMr Matchitt offered to pay this amount until the debt of his burglaries is repaid, itwould take seven years to repay26 the debt and the Court is limited to ordering ongoingreparation payments for five years.[64] Having regard to the amount of the loss to the victims and Mr Matchitt's healthand earning capacity, I would impose a condition that (subject to his health andcontinued employment) he repay to the victims a total of $25,000. As I have alreadyindicated Mr Matchitt has accumulated $6,000 which he can pay immediately.[65] The duration of a home detention sentence is generally half of the custodialsentence that otherwise would have been imposed.27 Although this general propositiondoes not apply to every case,28 I consider it appropriate to apply it to the appellant'ssentence. Half of 21 months and two weeks is 10.5 months, which is 11 monthsrounded to the nearest whole month.[66] Mr Matchitt will spend a total of 11 months on home detention, in respect ofall three charges.Conclusion[67] The appeal is allowed.26 New Zealand Police v Matchitt, above n 1, at [20].27 Brittin v New Zealand Police, above n 24, at [59].28 Metua v R [2018] NZHC 246 at [27].Result[68] The appellant's sentence is substituted for a sentence of 11 months' homedetention to be served at his Hāwera address. The sentence of home detention is tocommence on 6 July 2023.[69] The conditions listed in [62] above apply, together with an additional conditionthat he pay a total of $25,000 in reparation to the Sunnynook and New Plymouthburglary victims, pro-rated across the value of the goods and the cash. That sum is tobe paid by way of initial lump sum of $6,000 and then at the rate of $200 per week,subject to Mr Matchitt's health and continuing employment.Gwyn JSolicitors:Crown Solicitor, New Plymouth