MATIU v POLICE [2018] NZHC 96

MATIU v POLICE [2018] NZHC 96 [9 February 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000154[2018] NZHC 96BETWEEN MARIE NAWA MATIUAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2018Appearances: R Wood for the AppellantS Bicknell Young for the RespondentJudgment: 9 February 2018JUDGMENT OF NATION J[1] Ms Matiu was the volunteer manager of a Māori land trust in the Bay of Plenty.She managed the trust's accounts and made payments. Between July 2011 and January2015, she presented cash cheques 31 times, spending most of the money obtained onherself. She used some of the money to help others but this was also for her ownbenefit in that it was done to increase her mana with the people who benefited fromthose funds. She was sentenced to 10 months' home detention on 13 November 2017.She appeals against that sentence.Principles on appeal[2] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal accepted in Tutakangahau v R, an appellate court"will not intervene where the sentence is within the range that can be properly bejustified by accepted sentencing principles", except where there has been an expressarithmetical error.2 It is only appropriate for this court to intervene and substitute itsown views if the sentence being appealed is "manifestly excessive" and not justifiedby the relevant sentencing principles.3 The focus on an appeal is on the end sentence.4District Court decision[3] The Judge began his sentencing with a summary of the nature of the offendingmentioning that it involved a breach of trust. He referred to her list of previousconvictions and the way they had intensified over the last four years, and that she hada problem with alcohol. He referred to the way she had betrayed her own people,difficulties that she had in her relationship but that she and her husband were nowworking together and anticipated making reparation payments at the rate of $50 perweek.[4] Against that background, the Judge said:[5] I do think that a starting point of 18 months' imprisonment is an initialstarting place for me to commence the assessment of what is a suitable penaltybut I take into account your plea of guilty and all the other circumstances thathave been referred to in the submissions file. I am of the view that a homedetention sentence is the most appropriate one and that this should be for aperiod of 10 months.Appellant's submissions[5] Ms Wood submitted there was an error in calculating the period of homedetention in that it was out of step with the general practice of halving the end sentenceof imprisonment when making a conversion from an appropriate sentence ofimprisonment to home detention. She also submitted that there was an error in thatthere was no effective credit for guilty pleas for which Ms Mathiu should havereceived a 25 per cent discount. She also submitted there should have been some1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].4 Ripia v R, above n 3, at [10].credit for matters relating to Ms Matiu personally, including the particular remorse shehad demonstrated.Respondent's submissions[6] In her submissions, Ms Bicknell Young appeared to accept the Judge hadadopted a starting point of 18 months' imprisonment for the offending. She submittedthat there was no requirement for the end sentence of imprisonment to be halved whensubstituting a period of home detention. That adjustment was not to be madeautomatically as a requirement of law.[7] By reference to various cases, she submitted the starting point for the offendingcould have been two to two and a half years' imprisonment. She submitted that anycredit for personal matters, including such remorse as was shown, and the commitmentto pay reparation of $50 per week would be modest. She submitted that, given whatcould have been an appropriate starting point for the offending, with appropriatecredits for guilty pleas and other matters, the end sentence that could have properlybeen imposed was in the range of 17 to 21 months' imprisonment. Even if that washalved because of the substitution of a sentence of home detention, the sentence couldhave properly been within the range of eight and a half to 10 and a half months' homedetention. On that basis, she said Ms Matiu could not demonstrate that the sentenceimposed was manifestly excessive.Discussion[8] It is not clear that, when the Judge referred to a starting point of 18 months'imprisonment, he was referring to a starting point sentence having regard to theseriousness of the offending as a first step in the Taueki approach to sentencing.5 Itmay also have been the starting point he arrived at after allowing for both aggravatingand mitigating factors relating to Ms Matiu personally, her previous convictions,particularly over the previous four years, and her offer to pay reparation at the rate of$50 per week.5 R v Taueki [2005] 3 NZLR 372 (CA).[9] That latter approach would have been more consistent with the submissionmade by the Police prosecutor on sentencing. He had suggested a starting point of 18months' imprisonment for the offending, consistent with the High Court judgment ofVea v R,6 but that submission was not entirely consistent with the first stepconsideration in the Taueki approach. He concluded with a submission that a sentenceof 24 months' imprisonment would have been appropriate allowing for an uplift forMs Matiu's previous offending and the submitted gross breach of trust.[10] For Ms Matiu, Ms Wood had however submitted that a starting point in therange of 18 months was appropriate with full credit for guilty plea but that anelectronically monitored end sentence would be appropriate.[11] Given the way in which the Judge arrived at the sentence, it seems likely thathe considered, in the circumstances, a sentence of 10 months' home detention wasappropriate. It is however difficult to relate the sentence to his reference to a startingpoint sentence of 18 months' imprisonment.[12] There is no guideline judgment for fraud-based offending of this sort. In R vVarjan, the Court of Appeal stated:7Culpability is to be assessed by reference to the circumstances and such factorsas the nature of the offending, its magnitude and sophistication; the type,circumstances and number of the victims; the motivation for the offending;the amounts involved; the losses; the period over which the offendingoccurred; the seriousness of breaches of trust involved; and the impact onvictims.[13] I have considered the various factors referred to by the Crown and the casesreferred to me by both the Crown8 and Ms Matiu's counsel. In Ashby, Woolford Jcarefully referred to the circumstances and sentence imposed in a number of relevantcases.[14] Because on an appeal the focus is on the end sentence and whether it ismanifestly excessive, it is appropriate to consider what might have been the range and6 Vea v R [2014] NZHC 1959.7 R v Varjan CA97/03, 26 June 2003 at [22].8 Luoni v Police [2016] NZHC 695; Rako v R [2015] NZCA 463; Ashby v Police [2015] NZHC1900; Vea v R, above n 6.a starting point for Ms Matiu's offending, given her culpability with regard to thatoffending. Significantly, the offending here involved 31 different incidents of fraudover a period of approximately three and a half years between July 2011 and January2015. The offending involved a gross breach of trust and a loss to those defrauded tothe extent of the $23,691.30 which was taken.[15] The offending was not sophisticated. As in Vea, it did not have to be becauseof the trust that the victims had bestowed upon her. Because the offending occurredon a repetitive basis over a significant period of time, a degree of premeditation wasinvolved.[16] I consider an appropriate starting point sentence for the offending, havingregard to its seriousness, would have been in the range of 18 to 22 months.[17] The sentencing Judge then had to consider whether there should be any upliftor credit for mitigating and aggravating features relating to Ms Matiu personally.Although Ms Matiu had offered to attend a restorative justice meeting with arepresentative of those who were the victims of her offending, there was nothingbefore the District Court Judge to indicate she had demonstrated, in a tangible way,true remorse for her offending. She did admit the offending when confronted with itby the Police but this was after the offending had been established through a Courtordered audit of the trust's affairs. The Police advised the sentencing Judge that MsMatiu had failed to attend a judicial conference held on 10 October 2016 in relation tothe outcome of that audit. The pre-sentence report indicated Ms Matiu was willing topay reparation but said that she was unable to pay the money in full and could pay themoney back in instalments at only $50 per week. She was however ordered to payreparation of $23,691 at that rate for which she was entitled to some credit, althoughthat had to be modest given that, at that rate, it would take approximately 9 years torepay the total amount she had stolen.[18] Ms Matiu had taken some steps to address the alcohol problems which were amajor factor in her offending, for which she was entitled to some credit. Against that,her offending had continued for a time in 2015, after being involved in alcohol anddrug rehabilitation programmes. In 2013 she had convictions for antisocial conduct,from 2015 for offences of possessing a knife in a public place, assault and wilfuldamage. She had a third conviction for driving with excess blood alcohol from 2015.She was convicted on separate charges relating to domestic assaults that occurred on17 September 2016 and had benefited from being sentenced to come up for sentenceif called upon. At the time she was sentenced on the theft charges, she was coming tothe end of a sentence of two years' intensive supervision imposed on 25 November2015.[19] In all these circumstances, I consider there would have been no error if thesentencing Judge had made no adjustment by way of either uplift or discount formatters relating to Ms Matiu personally.[20] There was no disagreement between counsel, either at the time of sentencingor on appeal, that Ms Matiu was entitled to a discount of 25 per cent for her timelyguilty pleas.[21] With a starting point sentence between 18 and 22 months' imprisonment, witha discount of 25 per cent for guilty pleas, the sentence could then have been between13 and a half and 16 and a half months.[22] There was no dispute that it was appropriate to substitute a sentence of homedetention or that there is a rule of thumb that a sentence of home detention willnormally be about one half of what would otherwise have been a prison sentence. Onthat basis, an appropriate sentence of home detention would have been betweenapproximately six and a half months and eight months. An adjustment to one half ofthe prison sentence does not have to be exactly half nor should it be automatic.[23] The Courts have, however, recognised that a sentence of home detention is acustodial sentence. It is a sentence that carries with it real constraints and stresses.There is a significant difference between the sentence imposed here of 10 months'home detention and what might have been a reasonably available sentence of aroundeight months.[24] That difference has been sufficient to persuade me that there was an error inthe sentence that was imposed in the District Court and that a different sentence oughtto have been imposed. I accordingly allow the appeal, quash the sentence of 10months' home detention which was imposed in the District Court and substitute asentence of eight months' home detention on all the same conditions as were imposedwith the original District Court sentencing.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.