Matara v R

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 16 December 2021
• Neutral Citation: [2021] NZCA 692
• Docket Number: CA560/2019
• Court: Court of Appeal

Between

Billy Mark Matara

Appellant

and

The Queen

Respondent

[2021] NZCA 692

Court:

Miller, Goddard and Katz JJ

CA560/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KOTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of 10 years and 2 months imprisonment for attempted murder — second strike offences — three strike sentencing regime — principle of legality — New Zealand Bill of Rights Act 1990 — Sentencing Act 2002

Counsel:

A J Ellis for Appellant

J E Mildenhall for Respondent

• A An extension of time to appeal is granted.

• B The appeal is allowed.

• C The sentence imposed in the High Court is set aside.

• D Mr Matara is sentenced to imprisonment for a term of 10 years and two months with a minimum period of imprisonment of 40 per cent.

JUDGMENT OF THE COURT

Table of contents

	Para no
Introduction	[1]
Background	[7]
The offending	[7]
Mr Matara's mental health at the time of the offending	[10]
Previous offending	[14]
High Court sentencing	[16]
Extension of time to appeal	[22]
Submissions for Mr Matara on appeal	[24]
Submissions for Crown on appeal	[27]
Discussion	[31]
The three strikes sentencing regime	[31]
Parole where three strikes regime does not apply	[39]
Previous decisions of this Court in relation to second strike sentencing	[44]
The Supreme Court decision in Fitzgerald	[50]
Implications of Fitzgerald for second strike sentencing	[57]
Is the sentence imposed on Mr Matara disproportionately severe?	[63]
Barnes adjustment not appropriate	[76]
The appropriate sentence in this case	[77]
Result	[81]

REASONS OF THE COURT

(Given by Goddard J)

Introduction

1 Mr Matara was convicted of attempted murder following trial at the Auckland High Court. 1 On 11 September 2017 he was sentenced by Courtney J to 10 years and two months' imprisonment. 2 This was a “second strike” offence for the purposes of s 86C of the Sentencing Act 2002: in March 2012 Mr Matara had received a first warning under s 86B of the Sentencing Act following a conviction for aggravated robbery. Section 86C(4) of the Sentencing Act required the Judge to order that Mr Matara serve the full term of the sentence, and that he serve the sentence without parole.

2 The Judge recorded, as required by s 86C(6), that but for the application of s 86C she would have ordered that Mr Matara serve a minimum period of imprisonment (MPI) of 40 per cent of the sentence imposed: that is, an MPI of four years and 24 days. 3

3 Mr Matara sought leave to appeal to this Court out of time against both his conviction and his sentence. He subsequently abandoned his conviction appeal. The sentence appeal turns on the implications of the recent decision of the Supreme Court in relation to sentencing of third strike offenders in Fitzgerald v R for the sentencing of second strike offenders. 4

4 As the Crown accepted, the Supreme Court decision in Fitzgerald establishes that the three strikes regime is not intended to prevail over s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). It follows that second strike sentencing must not be inconsistent with s 9. In light of Fitzgerald, we consider that s 86C(4) of the Sentencing Act must be read as subject to an unexpressed qualification that it is subject to s 9 of NZBORA. A Judge is not required to order that a second strike sentence be served without parole if making such an order would be inconsistent with s 9 of NZBORA because it would result in a punishment that is disproportionately severe.

5 We consider that a sentence of 10 years and two months' imprisonment to be served without parole amounts to disproportionately severe punishment, in circumstances where:

• (a) The sentence that would be proportionate and sufficient to meet all of the objectives of the Sentencing Act would be a sentence of 10 years and two months' imprisonment with an MPI of 40 per cent. A more severe sentence is not justified by reference to any of the statutory purposes of sentencing, 5 and is disproportionate.

• (b) The sentence means Mr Matara loses the ability to apply for parole after some four years and denies him the opportunity of release on parole for a further six years. The sentence requires his continued incarceration for an extended period even if he is rehabilitated to the point that he no longer poses a risk to the safety of the community. And it deprives him of opportunities for rehabilitation that would otherwise have been available to him.

• (c) The first warning that Mr Matara received in 2012 does not provide a rational justification for requiring Mr Matara to serve a further six years of imprisonment without the opportunity for parole and access to rehabilitation services in the early years of his sentence, in particular having regard to his mental illness and psychosis.

6 It follows that the Judge was not required to order that the sentence be served without parole. That order should be set aside, and replaced with an order that Mr Matara serve his term of imprisonment with an MPI of 40 per cent.

Background

The offending

7 In May 2016 Mr Matara had been living in a boarding house in Mangere East for about two months. The victim, Mr Hingaia, was a resident at the same boarding house. Mr Matara did not know him particularly well. In the early hours of 7 May 2016 Mr Matara went into Mr Hingaia's room and woke him. He asked him to come outside onto the deck for a smoke. Mr Hingaia noticed that Mr Matara had a pump-action shotgun with him. He thought that there was something a bit out of place, but said nothing. The two men sat on the deck and talked for a while. There was no argument between them.

8 After some time Mr Hingaia went inside to the kitchen. Mr Matara followed him. When Mr Hingaia turned around he saw Mr Matara standing just outside the kitchen door, about four metres away. Mr Matara was pointing a gun at him. Mr Matara did not say anything but shot Mr Hingaia in the torso, and a few seconds later shot him a second time. Mr Matara then ran from the house.

9 Mr Hingaia was very badly hurt. He experienced physical disability, the result of damage to his intestines, which his victim impact statement indicated may prove to be lifelong, along with mental harm which is likely to endure.

Mr Matara's mental health at the time of the offending

10 On 15 April 2016, three weeks before the attack on Mr Hingaia, Mr Matara went to the Manukau Community Health Centre at the urging of his partner. She was very concerned about Mr Matara's erratic thoughts and behaviour, including feelings of paranoia, auditory hallucinations and random thoughts of harming people. This behaviour seemed to be exacerbated by the stresses Mr Matara was under during the preceding six months or so: his mother had died; he had not been able to care for his children and have them stay with him because he could not find appropriate accommodation; he was unhappy in the boarding house; his relationship with his partner was breaking down; and he was struggling with life outside prison and using methamphetamine.

11 Mr Matara was seen by a treating psychiatrist, Dr Ellis. In a statement to the police Dr Ellis recorded Mr Matara telling her about the auditory hallucinations and that he was using methamphetamine. She noted that Mr Matara was displaying auditory hallucinations, paranoid delusions and loose thought associations. She gave a broad diagnosis of “psychotic disorder not otherwise specified”. That is a generic diagnosis sometimes given to a person who displays symptoms of psychosis but cannot be formally diagnosed due to recent drug use. She prescribed an antipsychotic medication.

12 The Judge recorded in her sentencing notes that she did not know whether Mr Matara was taking the prescribed antipsychotic medication at the time of the offending. Nor did she know how recently Mr Matara had used methamphetamine prior to the offending, though it appeared from his partner's statements to the police that he had been using the drug in the weeks beforehand. 6

13 A consultant forensic psychiatrist, Dr Cavney, examined Mr Matara in May 2017 for the purpose of assessing fitness to stand trial and the possibility of an insanity defence. Mr Matara did not engage with the psychiatrist. But based on the information available to the psychiatrist, including statements given by Mr Matara's partner and by Dr Ellis, the psychiatrist expressed the view that Mr Matara:

… demonstrated clear evidence of psychosis that likely had [its] onset before the … offending. It is also probable that Mr Matara was acutely psychotic at the time …

Previous offending

14 Mr Matara has a long list of more than 100 previous convictions. They are almost all for non-violent offending, including a substantial number of driving offences, some dishonesty offences, and breaches of community work conditions. His record also includes some assaults at the lower end of the spectrum.

15 However in 2012 Mr Matara was convicted of an aggravated robbery committed in 2010, for which he was sentenced to four years and nine months' imprisonment. Mr Matara received a first warning under s 86B of the Sentencing Act following his conviction for this offence.

High Court sentencing

16 The Judge adopted a starting point of 10 years' imprisonment for the attempted murder. 7 That was the starting point proposed by Mr Matara's then counsel, Mr Mansfield. The Crown had suggested an 11-year starting point.

17 The Judge accepted that Mr Matara was most likely psychotic at the time of the offending, at least as a result of methamphetamine use, but possibly as a result of some other underlying disorder as well or instead. The Judge took this into account

in assessing Mr Matara's culpability, and in particular in assessing the...