MATKOVICH v POLICE [2021] NZHC 1660

MATKOVICH v POLICE [2021] NZHC 1660 [7 July 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-33[2021] NZHC 1660BETWEEN RUEBEN MATKOVICHAppellantAND NEW ZEALAND POLICERespondentHearing: 6 July 2021Appearances: K Snelgar for the AppellantK Whyte for the RespondentJudgment: 7 July 2021JUDGMENT OF GAULT JSolicitors / Counsel:Mr K Snelgar, Barrister, Manukau CityMr K Whyte and Mr J Williams, Hamilton Legal, Office of the Crown Solicitor, HamiltonIntroduction[1] Mr Matkovich appeals his sentence of four years' imprisonment imposed byJudge N D Cocurullo on 1 December 2020,1 following guilty pleas on the followingcharges:(a) two charges of aggravated robbery;2(b) one charge of assault with a weapon;3 and(c) six charges of unlawfully taking a motor vehicle.4[2] Mr Matkovich appeals on the basis that the sentence was manifestly excessiveas the Judge erred by:(a) adopting a starting point that was too high, including by imposing animpermissible uplift for the vehicle related offending;(b) imposing uplifts for Mr Matkovich's prior Youth Court notations andfor offending while subject to a Youth Court order; and(c) applying a youth discount that was too low.The offendingUnlawfully taking a motor vehicle – Mazda MPV GCS900[3] On 13 July 2020, Mr Matkovich and three co-offenders stole a Mazda MPVstation wagon from a street in Rototuna. The vehicle was subsequently located onanother street in Rototuna.1 R v Matkovich [2020] NZDC 25070.2 Crimes Act 1961, s 235(b). Maximum penalty of 14 years' imprisonment.3 Crimes Act 1961, s 202C. Maximum penalty of five years' imprisonment.4 Crimes Act 1961, ss 226(1) and 66(1). Maximum penalty of seven years' imprisonment.Unlawfully taking a motor vehicle – Nissan Tiida KWS3[4] Later that same day, Mr Matkovich went with the same group to a differentstreet in Rotutuna. They stole a Nissan Tiida that was parked on the street and droveit to the Rototuna Food Mart.Aggravated robbery – Rototuna Food Mart[5] At around 8:15 pm, the group entered the Rototuna Food Mart. The shop wasopen for customers and the shop owner was standing behind the counter. The grouphad their faces covered to hide their identity. One of the members of the group waswielding a hockey stick. Members of the group tried to jump over the shop counter toget to the cigarette cabinet. Other members of the group grabbed the cash register andripped it from the counter. The shop owner tried to prevent the cash register frombeing taken. One member of the group swung the hockey stick at the shop owner, butmissed. The group exited the shop with the cash register and $800 in cash. Theydrove away to a nearby street in the stolen Nissan Tiida.Unlawfully taking a motor vehicle – Subaru Impreza EMY24[6] The group discarded the Nissan Tiida on a street in Huntington. They thenbroke into a Subaru Impreza that was parked on the side of the road. The ignition ofthe vehicle was damaged in the process of starting the engine. They drove to Hillcrest.They were captured on CCTV footage entering the Cambridge Road Dairy. None ofthe group had their faces covered, nor carried weapons. The group walked in as theshopkeeper was closing the dairy. They observed him putting the cash register drawerin the Lotto cabinet. One member of the group pulled the cash drawer out of thecabinet and gestured to the shop attendant that he could easily take it. He then returnedthe till to the cabinet. The group then left without further incident.Unlawfully taking a motor vehicle – Subaru Impreza FKA853[7] At about 5:00 pm the following day, 14 July 2020, Mr Matkovich and all fiveof his co-offenders abandoned the Subaru Impreza at the Melville Skate Park car park.The group found another Subaru Impreza in the car park and broke into it. They thendrove to The Base shopping centre.Unlawfully taking a motor vehicle – Honda Civic GHY565[8] The group abandoned the second Subaru Impreza in the underground car parkof the shopping centre. They then broke into a Honda Civic and used it to drive to theHamilton Lake area. At the lake, one member of the group tried to use a screwdriverto break into a Mazda MX5. The owner of the car was inside it at the time. Uponrealising this, the group left the area in the Honda Civic.Unlawfully taking a motor vehicle – Mazda Familia DUA126[9] The group drove to the Hillcrest area, where they broke into a Mazda Familia.Some members of the group damaged the ignition and drove the vehicle from the area.The rest of the group remained in the Honda Civic.Aggravated robbery – Cambridge Road Dairy[10] Then travelling in both the Mazda Familia and Honda Civic, the group returnedto the Cambridge Road Dairy. Both vehicles arrived outside the store at the same time.Mr Matkovich and two co-offenders entered the dairy with their faces covered.Mr Matkovich was armed with a hockey stick. He swung the hockey stick and hit thestaff member behind the counter on the wrist. The staff member ran from the area.He later required medical treatment for his arm. The group jumped over the counterand took cigarettes and tobacco from the cigarette cabinet. They then ran from thestore.Aggravated Robbery – Thirsty Liquor[11] While Mr Matkovich and the two co-offenders were robbing the dairy, theother three members of the group robbed a nearby Thirsty Liquor store. Mr Matkovichwas not directly involved in this aggravated robbery and was not charged for it.Assault with a weapon[12] The owner of a nearby fish and chip shop came outside holding a plastic chairand challenged the group. The offender wielding the screwdriver attacked the fish andchip shop owner, knocking him to the ground. While the victim was on the ground,Mr Matkovich approached the victim from his blind side and swung the hockey stickat him. He narrowly missed the victim's head. The victim was hospitalised for theinjuries caused by the co-offender. The group got into the two vehicles and left thearea. A short time later both vehicles were located by police in Bader. Alcohol andcigarettes were located in one of the vehicles.[13] At around 10:30 pm that night, a police patrol saw two males matching thedescription of two of the offenders walking down a street in Bader. The offenders ranaway, and a police dog tracked them to one of the offender's home address. A searchof that address located cigarettes and tobacco matching what was taken from theCambridge Road Dairy, cash drawer, and clothing matching that worn by some of theoffenders during the robberies.District Court sentencing[14] Judge Cocurullo identified the lead offence as the aggravated robbery of theCambridge Road Dairy. The Judge considered that the aggravating features were thenumber of participants, a degree of planning and premeditation, the wearing ofdisguises, the actual violence and the use of weapons. The Judge adopted a startingpoint of five years' imprisonment with reference to R v Mako,5 treating the charge ofassault with a weapon as an aggravating feature of the aggravated robbery.[15] The Judge applied uplifts of 14 months for the second aggravated robbery, andsix months for one of the charges of unlawfully taking a motor vehicle. Mr Matkovichwas convicted and discharged of the remaining charges of unlawfully taking a motorvehicle, and on the charge of assault with a weapon. The total starting point wastherefore six years and eight months' imprisonment.[16] The Judge then turned to the factors personal to Mr Matkovich. The Judgeapplied uplifts of five per cent for Mr Matkovich's offending while subject to a YouthCourt order, and 10 per cent for prior Youth Court notations for similar offending.The Judge applied discounts of 15 per cent for Mr Matkovich's youth (cancelling outthe uplifts), 25 per cent for his early guilty plea, and 15 per cent for his personal5 R v Mako [2000] 2 NZLR 170 (CA).circumstances – including his diagnosis of foetal alcohol spectrum disorder (FASD)and personal care and protection issues. This produced a net discount of 40 per cent.The Judge therefore sentenced Mr Matkovich to four years' imprisonment.Leave to appeal out of time[17] Mr Snelgar, for Mr Matkovich, applied for leave to file this appeal out of time.He stated that the main reason for the delay in filing the notice of appeal was that thesentencing for one of Mr Matkovich's co-offenders (Mr Kaweroa) occurred in Marchthis year. The result of that sentencing gave rise to Mr Matkovich's desire to appeal.The Crown does not oppose leave.[18] In the circumstances, I grant leave to appeal out of time.Approach on appeal[19] To succeed on an appeal against sentence, the appellant must satisfy the appealCourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.6 The Court will not, ordinarily, intervene when thesentence is within the range that can be properly justified by accepted sentencingprinciples.7 The Court will only intervene and substitute its own view if the sentenceis manifestly excessive or wrong in principle. The appeal Court's focus is on the finalsentence imposed rather than its component parts or how the ultimate sentence wasreached.8Starting point[20] No issue is taken with the Judge's starting point of five years' imprisonment,having regard to the guideline judgment in Mako.9 Mr Snelgar submitted that theJudge should have applied an uplift of only 12 months for the second aggravatedrobbery. I consider that the uplift of 14 months was well within range having regard6 Criminal Procedure Act 2011, s 250(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15]; and Kumar v R [2015] NZCA 460 at [81].9 R v Mako [2000] 2 NZLR 170 (CA).to totality. In R v Elliott, the Court of Appeal described a two year uplift for a secondaggravated robbery as modest.10[21] The primary issue in relation to the adjusted starting point is whether the sixmonth uplift for the unlawful taking of a motor vehicle was permissible. Mr Snelgarsubmitted the Judge should not have imposed that uplift because s 18 of the SentencingAct 2002 (the "Act") provides that persons under 18 years of age cannot be sentencedto imprisonment unless they are being sentenced for a category 4 offence or aqualifying category 3 offence. Mr Snelgar submitted that applies to the assault with aweapon charge as well, albeit there was no uplift for that charge – it was treated as anaggravating feature of the lead charge. He relies on the decision of this Court in Fonuav Police.11 This prohibition on uplift was accepted by the District Court whensentencing Mr Matkovich's co-accused.12[22] Mr Whyte, for the Crown, submitted that notwithstanding s 18 of the Act andthe decisions of this Court in Police v Moala and Fonua v Police prohibiting an upliftwhere a separate sentence for the offending could not be one of imprisonment,13 it isopen to this Court on appeal to depart from that approach. He submitted that whensentencing offenders younger than 18, a sentencing court should be permitted to takeinto account the wider circumstances of the offending. Aggravated robbery offendingis commonly facilitated by the use of stolen vehicles and violence. The wider actionsof an offender appropriately inform the Court's consideration of the seriousness of anygiven aggravated robbery offending. He submitted the terms of s 18 should notpreclude the Court from taking into account associated actions of an offender inappropriately reflecting the seriousness of an aggravated robbery. He submitted that,based on the approach in Moala and Fonua, if two youth offenders committed similaroffending, an offender who was charged with both aggravated robbery and associatedoffending could benefit from a lesser sentence than an offender charged only withaggravated robbery (whereby the Court would consider the full factual background tothe offending in fixing a starting point). He submitted the Judge's approach in this10 R v Elliott [2018] NZCA 526 at [10]-[11].11 Fonua v Police HC Auckland CRI-2009-404-341, 22 February 2010.12 R v Kaweroa [2021] NZDC 10585 at [18].13 Police v Moala [2008] DCR 70 (HC); and Fonua v Police HC Auckland CRI-2009-404-341,22 February 2010.case is consistent with the application of s 9 of the Act (considering aggravating andmitigating factors of offending).[23] In any event, Mr Whyte submitted the starting point of six years and eightmonths' imprisonment was within the range available to the Judge.[24] Section 18(1) of the Act provides:No court may impose a sentence of imprisonment on an offender in respect ofa particular offence, other than a category 4 offence, or a category 3 offencefor which the maximum penalty available is or includes imprisonment for lifeor for at least 14 years, if, at the time of the commission of the offence, theoffender was under the age of 18 years.[25] In Police v Moala, Harrison J considered the effect of s 18 when sentencing ayouth offender for five aggravated robberies and 27 other charges, including two ofunlawfully taking a motor vehicle.14 Harrison J said:[53] The Judge apparently accepted the Crown's submission that he couldtreat the summary offending as an aggravating feature under s 9(1)(j) as beingconvictions for which Mr Moala was being sentenced or otherwise dealt withat the same time (but as Ms Ryan emphasises, he did not accord them weightin the sentence actually imposed). I respectfully disagree. The statutoryprohibition against imposing sentences of imprisonment for summaryoffences is absolute: s 18. (I agree, though, with the Judge's condemnation ofthat result). If taken into account in the way the Crown submits, the summaryoffences would inevitably increase the starting point, thereby constitutingterms of imprisonment. This would be a backdoor means of frustrating a clearlegislative intent. In my judgment the proper place for Mr Moala's subsequentoffending in this context lies in diminishing any allowance for prospects ofrehabilitation.[26] Fonua v Police involved an appeal where the District Court Judge had soughtto distinguish Moala on the basis it applied to extraneous unrelated matters rather thana connected series of events.15 Allan J said it was not open for the District Court Judgeto distinguish Moala, which Allan J said was plainly right.16 He continued:[25] As a necessary consequence of the prosecution decision to reduce thecharge for the first offence from aggravated robbery to robbery, it followedthat the sentencing Judge would be precluded from imposing a custodialsentence on that charge, whether directly or indirectly. The Judge wastherefore wrong to impose a 12 month uplift.14 Police v Moala [2008] DCR 70 (HC) at [1]-[2].15 Fonua v Police HC Auckland CRI-2009-404-341, 22 February 2010 at [19].16 At [24].[27] The learned authors of Adams on Criminal Law provide gentle support forMr Whyte's submission when they state that:17Arguably additional offences for which the [youth] offender is beingsentenced at the same time as the lead offence may be treated as anaggravating factor and result in an uplift in the length of the prison sentencefor that offence even if the additional offences cannot themselves be thesubject of a prison sentence.[28] Section 18 explicitly precludes imposing a sentence of imprisonment for acategory 3 offence with a maximum penalty of less than 14 years' imprisonmentcommitted when the offender was under 18. Two questions arise:(a) whether s 18 precludes an uplift to lead offending for such a category 3offence (as occurred here in relation to the vehicle charge); and(b) whether s 18 precludes taking into account such offending even as anaggravating feature of the lead offending (as occurred here in relationto the assault with a weapon charge).[29] I have some sympathy for the Crown's position, as did Harrison J in Moala.But I agree that treating s 18 as not applying to uplifts for associated offending wouldbe a backdoor means of frustrating a clear legislative intent. Imposing an uplift istantamount to imposing a sentence of imprisonment. While I agree the Judge'sapproach in this case is consistent with the application of s 9, and s 8(a) requires theCourt to assess culpability, I do not consider those provisions prevail over s 18 orrequire it to be read narrowly. I therefore consider the Judge was wrong to impose asix month uplift for the unlawful taking of a motor vehicle.[30] I accept the Crown's submission, however, that s 18 should not be interpretedas precluding the sentencing Court from taking into account the wider circumstancesof the offending. I consider that s 18 does not go so far as to preclude the sentencingCourt from taking into account aggravating features of an aggravated robbery inaccordance with Mako, even though those features may be the subject of separate17 Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters)at [SA18.01].charges for which s 18 precludes a sentence of imprisonment. Taking into account afeature of an aggravated robbery when setting a starting point for the aggravatedrobbery offence does not amount to imposing a sentence of imprisonment for thatfeature. The features of offending are assessed in the round. As Mr Snelgaracknowledged, the use of violence in a robbery is appropriately taken into account asan aggravating feature, at least where there is a sufficient link between the violenceand the robbery. Harrison J was dealing with convictions under s 9(1)(j) and I do notconsider he was suggesting s 18 precludes consideration of any aggravating featurethat might amount to a separate offence. Thus, the Judge was entitled to treat theassault with a weapon as an aggravating feature of the lead aggravated robberyoffending and take it into account in fixing the starting point. In the same way,associated offending such as vehicle conversion, detention or abduction of victims,and hostage taking is an aggravating feature of aggravated robbery,18 and the Judgecould also have treated the associated offending of unlawfully taking a vehicle as afeature of the aggravated robbery in fixing the starting point. As Mr Whyte submitted,vehicle conversion may indicate a degree of planning – itself an aggravating feature.If there is a separate charge, conviction and discharge, without uplift, avoids the s 18issue. This should address Mr Whyte's concern about consistency whether or not aperson charged with aggravated robbery is charged with the associated offending.[31] Thus, the question is whether the Judge's overall starting point of six years andeight months' imprisonment was justified even without the six month uplift.Mr Snelgar referred to Maiko v R (seven year starting point for three aggravatedrobberies),19 Anderson v R (seven year starting point for one aggravated robbery18 R v Mako [2000] 2 NZLR 170 (CA) at [45].19 Maiko v R [2020] NZHC 2958. The appellant was sentenced for three aggravated robberies, anddriving offences. The first aggravated robbery of a petrol station involved the appellant holdingthe victim against a wall while his associate took cash from the till. The second aggravated robberyinvolved the appellant threatening the Duty Manger of a bar with a switchblade knife while hisassociate took cash from the till. The third aggravated robbery of a different petrol station involvedthe appellant threatening a staff member with the switchblade knife, and forcing that staff memberto hand over cash and cigarettes. A starting point of seven years' imprisonment was adopted forthese charges and was not challenged on appeal.involving firearm, detention and a large sum, but lesser role),20 and R v Soane (six yearstarting point for two aggravated robberies, with a further two year uplift for assaultwith intent to rob a third store).21[32] I accept this case is less serious than Maiko and Anderson. Having regard tothe aggravating features of the offending already identified, and given that the upliftfor the second aggravated robbery here could have been higher, I consider an overallstarting point of six and half years' imprisonment would have been appropriate.[33] That would also see sufficient starting point parity with Mr Matkovich'sco-offender, Mr Kaweroa, whose starting point of six years imprisonment for oneaggravated robbery included a 12 month uplift for a charge of wounding with intentto cause grievous bodily harm.22 He participated in the robbery of the liquor store nextto the Cambridge Road Dairy and struck the fish and chip shop owner several timesto the head, shoulder and arm with a screwdriver upon exiting the liquor store.Personal aggravating and mitigating circumstances[34] Mr Snelgar submitted that the Judge erred by applying an uplift of 15 per centfor Mr Matkovich's previous Youth Court notations for similar offending and for20 Anderson v R [2019] NZCA 294. The appellant was a "secondary party" involved in theaggravated robbery of a store. Cash and cheques to a value of over $27,000, and some 300 itemsof jewellery valued at more than $242,000 were taken. The appellant's primary role was tomaintain guard over the victims. The appellant's culpability was therefore lesser than that of hisco-offender, who among other things had taken the lead role in the robbery and threatening thevictims with a firearm. The Court of Appeal adopted a starting point of seven years' imprisonment,which was the same as that of the co-offender notwithstanding their differing culpability.21 R v Soane [2018] NZDC 12482. The defendant was sentenced on two charges of aggravatedrobbery, one charge of wilful damage and one charge of assault with intent to rob. The firstaggravated robbery involved the defendant and an associate robbing a superette of cigarettes, cashand the victim staff member's cellphone. The defendant threatened the victim with a crowbar,kicked him three times to the leg and punched him twice to the head. The next aggravated robberyinvolved the defendant making a plan with four others to rob a superette for cigarettes.The defendant was armed with a crowbar and repeatedly struck a merchandise stand with it toscare away the victim staff member. He then loaded cash and cigarettes into a rubbish bag. A thirdattempted robbery involved the defendant and three associates entering a store armed with lengthsof wood. The defendant grabbed a victim by the beard and sweatshirt and dragged him inside thestore, where an associate struck him with a piece of wood. The other victims managed to defendthemselves with brooms and drive the offenders out of the store before anything was taken.The Judge adopted a starting point of four years' imprisonment for the first aggravated robbery,and uplifted that by two years for the second. The Judge also applied an uplift of two years forthe charge of assault with intent to rob (there was no uplift for the wilful damage charge). The totalstarting point was therefore eight years' imprisonment.22 R v Kaweroa [2021] NZDC 10585 at [1] and [17].offending while subject to a Youth Court order, referring to legal authority supportingthe treatment of youth offenders differently from adult offenders, including R vPouwhare.23 Also, Mr Matkovich suffers from FASD and attention deficit hyperactivedisorder. With this combination, Mr Snelgar submitted that no uplift should have beenimposed. He submitted rehabilitation should have been prioritised over denunciation.[35] Mr Snelgar also submitted that the Judge erred by applying a discount of only15 per cent for Mr Matkovich's youth. This discount was effectively cancelled out bythe uplifts imposed.[36] Mr Whyte submitted that the Judge did not err by applying an uplift forMr Matkovich's Youth Court notations. While those notations are not convictions forthe purpose of s 9(1)(j) of the Sentencing Act, he submitted they are nevertheless arelevant aggravating factor, referring to R v Rongonui24 and Kohere v Police.25[37] Mr Whyte also submitted the Judge did not err by including a five per centuplift for Mr Matkovich's offending while subject to a Youth Court sentence, relyingon s 284 of the Oranga Tamariki Act 1989 which refers to the disposal of proceedingsin the Youth Court as "sentencing".[38] Mr Whyte acknowledged that Mr Matkovich is entitled to a discount for youth,but submitted that the 15 per cent discount applied by the Judge was appropriate, thatMr Matkovich is at a high risk of reoffending, the aggravated robberies were seriousviolent offending, and his remaining personal circumstances were recognised by thefurther discount of 15 per cent.[39] I propose to consider the issues of uplift and youth discount together.The focus on appeal is, of course, the end sentence, rather than how that sentence iscalculated.23 R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868. Mr Snelgar also referred to theNew Zealand Bill of Rights Act 1990, s 25(i); United Nations Convention on the Rights of theChild, 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September1990), art 3.1; R v M [2014] NZHC 1848; and DP v R [2015] NZCA 476, [2016] 2 NZLR 306.24 R v Rongonui [2009] NZCA 279.25 Kohere v Police (1994) 11 CRNZ 442 (HC).[40] Mr Snelgar's submission is reflected in R v Pouwhare,26 where the Court ofAppeal said:[82] A "young person" under the CYPF Act is a "child" for the purposesof the United Nations Convention on the Rights of the Child, whichNew Zealand ratified in 1993. For its purposes a "child" is everyone below18 years unless under domestic law majority is attained earlier. Whensentencing a young person, therefore, a judge should, to the the [sic] extentthat this is consistent with the letter of the Sentencing Act, act in accordancewith the Convention and, in particular, should treat the young person's "bestinterests" as a "primary consideration". The Judge must treat the young personin a way that promotes his or her "sense of dignity and worth"; must reinforce,the young person's "respect for the human rights and fundamental freedomsof others"; and must, as the Sentencing Act also expressly calls for, impose asentence which "takes into account the child's age and the desirability ofpromoting the child's reintegration and the child's assuming a constructive rolein society".(footnotes omitted)[41] On the other hand, as Mr Whyte submitted, the Court of Appeal in R vRongonui,27 considering the effect of Youth Court notations in a Solicitor-General'sappeal against sentence, said:[88] We agree with the Crown that the Judge's sentence was manifestlyinadequate. In our view, the Judge placed far too much weight on thetestimonial material before her and gave too little weight to the evidence ofprior offending on which Mr Rongonui had appeared previously in both theYouth Court and the District Court. In our view, though no convictionsresulted, the findings in the Youth Court ought to have been taken into accountand given significant weight: see Kohere v Police (1994) 11 CRNZ 442 (HC).As a result, the overall credit given to the accused was far too high.[42] The Court of Appeal has indicated in R v Putt and Geros v R that uplifts forYouth Court notations are permitted, not under s 9(1)(j) of the Act since they are notconvictions, but under s 9(4) as other factors for consideration as the Court thinks fit.28In R v Putt the Court of Appeal said:[19] However, in the present case, the previous history [of Youth Courtnotations] involves no application of violence and is not particularlyextensive. The appropriate course in this case was to, as Mr Downs submitted,offset this history against the discount that might otherwise have been givento the appellant for his youth. The history in the present case was not such as26 R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868.27 R v Rongonui [2009] NZCA 279.28 R v Putt [2009] NZCA 38 at [18]; and Geros v R [2011] NZCA 122 at [16].to completely negate the effect of his youth but was a relevant factor in thatcontext.[43] In the event, no separate discount for youth was given. In Geros v R,the offender had prior notations for violent offending that was similar to the offendingfor which he was being sentenced. The Court of Appeal said "the Putt solution ratherappeals to us here", and held that the offender's previous Youth Court notationsjustified an uplift that effectively cancelled out the youth discount.29[44] In Vaeau v Police, having reviewed these two Court of Appeal decisions,Thomas J said:30[55] Youth Court notations are relevant to considering whether or not ayouth offender is entitled to be treated as a first time offender. In myassessment, Youth Court notations should not alter the discount which wouldotherwise be given for youth because previous history has no bearing on thereasons for which considerations of youth are relevant (for example,neurological factors which can lead to a reduction in culpability of youngpeople as compared to adults).[45] Thomas J also referred to Churchward v R, where the Court of Appeal set outwhy youth is relevant to sentencing:31(a) There are age-related neurological differences between young peopleand adults, including that young people may be more vulnerable orsusceptible to negative influences and outside pressures (includingpeer pressure) and may be more impulsive than adults.(b) The effect of imprisonment on young people, including the fact thatlong sentences may be crushing on young people.(c) Young people have greater capacity for rehabilitation, particularlygiven that the character of a juvenile is not as well formed as that ofan adult.(footnotes omitted)[46] In Churchward, the Court of Appeal said that Court had summarised therelevance of youth to sentencing in R v Pouwhare as follows:3229 Geros v R [2011] NZCA 122 at [18]-[19].30 Vaeau v Police [2015] NZHC 1972.31 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].32 At [84] citing R v Pouwhare [2010] NZCA 268, (2010) 24 CRNZ 868 at [96]. the fact than an offender is a young person can sometimes be given radicaleffect on sentence, unconstrained by any normative percentage, even whereoffending is serious. In other cases that is not possible. The young age of theoffender cannot be accorded presumptive, let alone paramount, weight.The objective seriousness of the offending, the young person's part in it,anything aggravating and otherwise mitigating must also be weighed.The analysis Mako calls for is always indispensable.[47] Returning to that guideline judgment of R v Mako, the Court of Appealconsidered the youth discount specifically in the context of aggravated robberyoffending:33[65] Youth and the prospects of rehabilitation may be mitigating factors.Offenders, and there seem a disturbing number, who have accumulatedconsiderable lists of convictions while still in their teens cannot expectleniency in sentencing for serious aggravated robbery offences. As noted inthe judgment of the full Court of the High Court in Cooper a high proportionof aggravated robberies in this country are committed by teenagers. In somecases young offenders may have been directed by others who are older. Itwould only encourage that practice to impose lower sentences unless there arereal prospects of rehabilitation and unlikelihood of re-offending.[66] However, where the offender is a youth who is in relevant respects afirst offender and appears genuinely motivated to reform, there may be benefitboth to the offender and society in a significantly reduced sentence. Whetherthis is so in a particular case requires a realistic assessment which gives properweight to the fact that aggravated robbery even when committed by animmature offender, remains serious violent offending.[48] In this case, given the acknowledged seriousness of some of Mr Matkovich'srelevant prior Youth Court notations and his offending while subject to Youth Courtorder, I consider it was open to the Judge to apply uplifts and a youth discount thateffectively cancelled each other out. Mr Matkovich's Youth Court notations includedfive aggravated robberies, one aggravated burglary, three burglaries and eighteencounts of unlawfully taking a motor vehicle or getting into a motor vehicle. They areconcerning, and more serious than in Vaeau. Also, the pre-sentence report states thatMr Matkovich is at very high risk of reoffending due to the gravity, volume andbreadth of his offending at a young age. Alcohol was listed as a factor contributing tohis offending. I do, however, accept Mr Snelgar's submission that FASD has playeda part in Mr Matkovich's youth offending and exacerbated the neurological differencesreferred to in Churchward.33 R v Mako [2000] 2 NZLR 170 (CA).[49] The Judge gave a 15 per cent discount for all of Mr Matkovich's personalcircumstances, referring to his diagnosed FASD and personal care and protectionissues. The latter was a reference to cultural material provided by Mr Matkovich'sconscientious social worker, which I have also reviewed. It explains thatMr Matkovich is of Ngai Tuhoe and Te Rarawa descent. His father is also of Croatianheritage. The report indicates that his father has an offending history and his motherhas shown limited capacity to offer the emotional support that he needs. He hasfollowed his two older brothers towards offending (burglaries, car related offences andaggravated robberies). He has an extensive care and protection history dating back towhen he was aged two, involving family violence incidents between his parents.He has been victim, subject or witness to multiple family violence incidents. He wasalso exposed to substance abuse by his parents. His parents separated approximatelyeight years ago. He turned to the streets for connection with anti-social youths in hislocal community. His disruptive behaviour, and concerns regarding his neglect, datefrom his parents' separation. By age 11-12, he had started running away from homeand engaging in criminal activity. Intermediate school was the last mainstream schoolhe attended. This has had a significant impact on his confidence, academicachievement and his ability to socialise with positive peers his own age.[50] Mr Matkovich's placement history with Oranga Tamariki began in 2016, aged13, although at times he has been placed back within his whānau. He has been subjectto strict curfew conditions for the three years prior to this offending. He was thenremanded in custody at Korowai Manaaki Youth Justice residence. Residence staffreported there were no issues with his behaviour and he was engaging well ineducation and sporting activities daily. He also successfully completed a DialecticalBehavioural Therapy programme "He Waka Eke Noa", a significant achievement.His social worker acknowledges that there were missed opportunities with regard tohis care and protection in his early years.[51] Dr Smith, a general and developmental paediatrician, reported in 2018 thatMr Matkovich meets the criteria for FASD. He also reported it is possible thatMr Matkovich's adaptive functioning may be significantly related to his exposure tofamily violence and antisocial role models, and that he possibly has ongoing anxietygiven early separation anxiety problems as a young child. Dr Smith recommendedmaintaining him within a learning environment as he clearly has the ability to learnand think, and noted that his social emotional functioning is very immature, whichsuggests he will respond to a lot of kindness and understanding that anxiety mayunderlie some of his behaviour.[52] Mr Matkovich's social worker states that punishment as a means to teachlessons is counter-productive for individuals with FASD. His greatest concern isMr Matkovich's vulnerability, and the connections he will make that may entrenchoffending behaviour.[53] Stepping back, I consider the combined effect of Mr Matkovich's FASD andchildhood experience, including trauma, go some way to explain his youth offending.I also accept that Mr Matkovich's FASD adds to the particular difficulty a substantialsentence of imprisonment will have on him as a young person of 18.34 The Judge wasaware of, and sought to avoid, a crushing long sentence. Even so, whileMr Matkovich's youth offending and risk of reoffending weigh against a greaterdiscount, the insights from the paediatrician and social worker lead me to acceptMr Snelgar's submission that rehabilitation efforts should still be prioritised while stillhaving regard to denunciation. I consider Mr Matkovich's combination of personalcircumstances, on top of youth itself, warrants more than a 15 per cent discount.I consider a discount of 25 per cent is appropriate.Parity[54] Mr Snelgar also relied on parity with Mr Kaweroa's sentence.35 I have alreadyaddressed the starting point parity. In terms of end sentence, Mr Kaweroa wassentenced to five months' home detention and six months of post-detention conditionson charges of aggravated robbery, wounding with intent to cause grievous bodilyharm, and unlawfully taking a car. Mr Snelgar submitted that even with an adjustmentfor the different facts and Mr Matkovich's previous notations, there is a starkdifference between a sentence of home detention and four years' imprisonment,34 Churchwood v R [2011] NZCA 531 at [86]-[87].35 Sentencing Act 2002, s 8(e).leading a reasonably minded independent observer to think something has gonewrong.36[55] Mr Kaweroa's sentence was reduced down to home detention by virtue of:(a) an 18 month discount for a guilty plea (25 per cent);(b) a 16 month discount for personal circumstances described in a s 27report (22 per cent);(c) an 11 month discount for youth (15 per cent);(d) a three month discount for remorse and rehabilitative prospects (fourper cent); and(e) having decided home detention was appropriate, a further deduction forhis seven and a half months' spent in Korowai Manaaki.[56] Thus, Mr Kaweroa received a total discount of 66 per cent for these personalfactors, before the further home detention reduction for time in custody. Whether ornot this was lenient, Mr Matkovich's personal circumstances differ significantly fromMr Kaweroa's. In sentencing him, Judge Clark noted the difference in relation toMr Matkovich's notations. Having already addressed that difference andMr Matkovich's discount for personal circumstances, I do not consider parity requiresa further discount.Conclusion[57] A starting point of six and a half years' imprisonment, with a net discount of50 per cent (25 per cent for personal circumstances and 25 per cent for guilty pleas),would have resulted in an appropriate end sentence of three years and three months'imprisonment. Therefore, the sentence of four years' imprisonment was manifestlyexcessive.36 Whittaker v R [2020] NZCA 241 at [42]-[43].Result[58] The appeal is allowed.[59] The sentence of four years' imprisonment is quashed and substituted with asentence of three years and three months' imprisonment.________________________________Gault J