MATEKUARE v NEW ZEALAND POLICE [2023] NZHC 3706

MATEKUARE v NEW ZEALAND POLICE [2023] NZHC 3706 [14 December 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-91[2023] NZHC 3706BETWEEN QUINTIN MATEKUAREAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2023Appearances: A Burns for AppellantT Afoa for RespondentJudgment: 14 December 2023JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by Justice LangOn 14 December 2023 at 2.00 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:A Burns, RotoruaGordon Pilditch, Rotorua[1] Mr Matekuare pleaded guilty to numerous charges in the District Courtinvolving allegations of trespass, theft and dishonestly using a document to obtain apecuniary advantage. He also pleaded guilty to a charge of breaching a sentence ofcommunity work.[2] On 1 August 2023, Judge D J McDonald sentenced Mr Matekuare to aneffective term of 18 months imprisonment.1 Mr Matekuare appeals against the Judge'sdecision. He contends that mathematical errors coupled with errors of fact andsentencing principle led the Judge to impose a sentence that was manifestly excessive.The offending[3] Several of the charges related to incidents that occurred between 27 March and19 May 2023 when Mr Matekuare stole items from a food store situated in centralRotorua. He had been trespassed from the premises prior to March 2023 because ofracial abuse he had directed towards the owners of the premises. This did not dissuadeMr Matekuare from returning to the store on several occasions and brazenly stealingsmall food items such as potato chips and chocolate bars. On each occasion he stolein full view of the owners of the business. Consistent with his earlier conduct he alsodirected verbal abuse of a racist nature towards the owners when they attempted tostop him leaving the premises with the stolen goods. He also threatened the occupantsby saying he would smash and stab the tyres of their vehicles if they called the police.[4] On 6 March 2023, Mr Matekuare was also issued with a trespass noticeprohibiting him from entering the Rotorua Central Mall for a period of two years. Thisdid not dissuade him from entering a supermarket in the mall on 30 April 2023 andwalking out without paying for confectionary.[5] Subsequently, on 21 May 2023, Mr Matekuare was in possession of a creditcard that had gone missing on 21 May 2023 when the owner of a restaurant in Rotoruahad his backpack stolen. Mr Matekuare then used the credit card to purchase itemshaving a total value of approximately $860 using the paywave function on the card.[6] During the period when the offending occurred Mr Matekuare was subject toa sentence of community work imposed on other charges of shoplifting, wilful trespass1 New Zealand Police v Matekuare [2023] NZDC 20296.and failing to answer District Court bail. He had failed to carry out all but a very smallportion of this sentence.The sentence[7] In some respects it is difficult to discern from the Judge's sentencing remarksexactly how he structured the sentence. It appears that he selected a sentence of sixmonths imprisonment on the lead charge of dishonestly using a document to obtain apecuniary advantage.2 This related to the use of the stolen credit card. The Judge thenimposed a series of cumulative and concurrent sentences on each of the remainingcharges. At the end of this process he indicated that the starting point on all chargeswas 20 months imprisonment.3 He then applied an uplift of two months to reflect thefact that Mr Matekuare has numerous previous convictions for offending involvingdishonesty.4[8] Turning to mitigating factors, the Judge said he would apply a discount of25 per cent on the resulting sentence of 22 months imprisonment.5 However, he didnot articulate the extent to which this would reduce the sentence he had arrived at. TheJudge then declined to make any further adjustments to reflect matters identified in acultural report Mr Matekuare's counsel tendered under s 27 of the Sentencing Act2002.6[9] At the end of this exercise, the Judge stated that the effective end sentence wasone of 18 months imprisonment.7 He imposed that sentence by imposing a sentenceof six months imprisonment on the charge of dishonestly using the credit card andimposing cumulative sentences of two months each on six of the remaining charges.The Judge then imposed concurrent sentences of two months imprisonment on allremaining charges.2 At [19].3 At [20].4 At [22].5 At [23].6 At [24]–[27].7 At [29(p)].The appeal[10] Mr Burns advances several grounds of appeal on Mr Matekuare's behalf. Heacknowledges that the starting point adopted on the lead charge of dishonestly usingthe credit card was appropriate. However, he contends that an uplift of no more thansix months was warranted for the remaining charges. He accepts that an uplift of oneto two months was appropriate to reflect the fact that Mr Matekuare has numerousprevious convictions for similar offending.[11] Mr Burns also points out that the Judge committed an arithmetical errorbecause he concluded an end sentence of 18 months imprisonment was appropriate.Mr Burns submits that the discount for guilty pleas alone ought to have reduced thesentence from 22 months to 16.5 months imprisonment.Decision[12] I agree with Mr Burns that a starting point of six months imprisonment wasappropriate on the charge relating to the dishonest use of the credit card. I also accept,as does Ms Afoa on behalf of the respondent, that an uplift totalling 14 months toreflect the remaining charges was outside the available range.[13] The offending that involved the repeated trespass and theft of small food itemsfrom the food store was aggravated significantly by the brazen way in which it wascommitted and the fact that it was accompanied by hurtful racial abuse directed at theowners of the store. However, given the low value of the items stolen and havingregard to totality principles, I do not consider these charges justified an uplift of morethan six months.[14] The trespass and theft of confectionery from the supermarket in the RotoruaCentral Mall justified a further uplift of two months, as did the breach of the sentenceof community work. This results in a sentence of 16 months imprisonment rather than20 months before taking into account aggravating and mitigating factors personal toMr Matekuare.[15] The starting points I have adopted in relation to the trespass and dishonestycharges already reflect the fact that Mr Matekuare has previous convictions for similaroffending. They would not have attracted a starting point of imprisonment but for hisprevious convictions for similar offending.[16] However, Mr Matekuare was serving (or more accurately was supposed to beserving) a sentence of community work imposed for similar offending at the time hecommitted the present offences. I consider an uplift of two months was justified toreflect this fact[17] A discount of 25 per cent was appropriate to reflect guilty pleas. This wouldbe applied to the sentence of 16 months imprisonment before taking into account theuplift to which I have referred. This reduces the sentence to one of 14 monthsimprisonment.[18] Like the Judge, I do not see any material connection between the mattersreferred to in the s 27 report and the present offending. In particular, self-reporteddrug addiction issues do not appear to have played any role in the present offendingbecause he does not appear to have been stealing items to fund his drug habit. Nor doalleged issues relating to Mr Matekuare's disconnection from his whānau and culture.I therefore consider the Judge was correct not to apply a further discount to reflectmatters identified in the cultural report.Result[19] The appeal against sentence is allowed.[20] In order to reduce the effective end sentence by four months I first reduce thesentence imposed on the charge of dishonestly using a credit card by two months. Thesentence imposed on that charge is now four months imprisonment. I also direct thatthe sentence of two months imprisonment imposed on the charge with the CRN ending2272 be served concurrently with other sentences rather than cumulatively on thesentence imposed on the charge with the CRN ending 2274. I also make the sentenceimposed on charge 2268 cumulative on the charge with the CRN ending 2274 ratherthan that with the CRN ending 2272.______________________Lang J