NGATAKI v NEW ZEALAND POLICE [2022] NZHC 1952

NGATAKI v NEW ZEALAND POLICE [2022] NZHC 1952 [9 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000098[2022] NZHC 1952BETWEEN CURTIS GORDON NGATAKIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 August 2022Appearances: B Shamy for the AppellantG Alloway for the RespondentJudgment: 9 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 9 August 2022 at 3.30 pm.Registrar/Deputy RegistrarDate:Introduction[1] The appellant, Curtis Ngataki, was sentenced in the District Court to two yearsand two months' imprisonment for the following charges1 — two charges of drivingwhile disqualified (third or subsequent);2 unlawful taking of a motor vehicle;3impeding breathing;4 assault on a person in a family relationship;5 threatening to kill;6and causing harm by posting a digital communication.7[2] Mr Ngataki appeals his sentence on the ground that it is manifestly excessive.He does so on a discrete issue, namely that the Judge ought to have applied a15 per cent discount for matters raised in the s 27 cultural report. The Judge hadapplied a 10 per cent discount.Facts[3] This offending occurred over multiple instances in late 2021.[4] Around 7.30 pm on 30 October 2021, Mr Ngataki and the victim wereintoxicated and in the victim's hotel room. An argument broke out, and Mr Ngatakithrew the victim to the ground. After pushing the victim again, he placed one handaround her neck and applied such force that she could not breathe. At the same time,Mr Ngataki's free hand was used to gouge the victim's right eye. The victim receiveda haemorrhage in her right eye, kidney pain and other aches.[5] On 20 November 2020, while still disqualified from driving, Mr Ngataki drovehimself and the victim to a hotel in the victim's car. Another argument ensued and,when the victim said she would leave, Mr Ngataki took her phone and went outside.The victim followed, asking the hotel's duty manager for help. Noticing the duty1 Police v Ngataki [2022] NZDC 10402.2 Land Transport Act 1998, ss 32(1)(a) and (4); maximum penalty two years' imprisonment or a finenot exceeding $6,000. A disqualification from holding or obtaining a drivers' licence of at leastone year must be imposed.3 Crimes Act 1961, s 226; maximum penalty seven years' imprisonment.4 Crimes Act 1961, s 189A; maximum penalty seven years' imprisonment.5 Crimes Act 1961, s 194A; maximum penalty two years' imprisonment.6 Crimes Act 1961, s 306; maximum penalty seven years' imprisonment.7 Harmful Digital Communications Act 2015, s 22; maximum penalty two years' imprisonment ora fine not exceeding $50,000.manager making a call, Mr Ngataki began walking down Lincoln Road and yelling atthe victim for having the police called. He also threatened to kill the victim and herfamily before running off down the road. Upon returning, Mr Ngataki demanded thevictim's wallet and, when she refused, demanded she get in the car with him. He gotin the victim's car without her permission and drove off, damaging the car in theprocess and taking the victim's cell phone and keys.[6] Mr Ngataki used this phone to post naked photographs of the victim to herFacebook page, which remained publicly visible for about half an hour.[7] It goes without saying that aspects of this offending are serious.Principles on appeal[8] 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 a different sentence should beimposed.8 The focus is not on the process by which the sentence was reached, but onthe correctness of the end result.9 In making this assessment, appellate courts do notinterfere with the legitimate exercise of judicial discretion or indulge in mere tinkeringwith the sentence.District Court decision[9] Taking the impeding of breath and associated assault as the lead charges, theJudge adopted a starting point of two years' imprisonment. This reflected the loss ofbreath suffered by the victim and level of applied force indicated by the bruising.[10] Uplifts of six months were applied for the driving while disqualified chargesand the threat to kill.8 Criminal Procedure Act, ss 250(2) and 250(3).9 Ripia v R [2011] NZCA 101 at [15].[11] The posting of intimate pictures on the victim's Facebook page, which wereseen by her son, attracted an uplift of eight months' imprisonment.[12] A final uplift of two months was applied to reflect Mr Ngataki's previousoffending. However, following a totality adjustment, the starting point was reducedto three years and four months' imprisonment.[13] A discount of 25 per cent was given for the guilty plea.[14] The Judge canvassed numerous elements of the cultural report, includingMr Ngataki's exposure to gang and family violence as well as abuse of drugs. TheJudge accepted these but raised concerns about the extent of self-reporting involved,particularly as it pertained to the rehabilitative efforts Mr Ngataki had made in the pastand planned to make. He applied a 10 per cent discount for the cultural report matters.[15] The Judge therefore applied a total discount of 35 per cent, leading to an endsentence of two years and two months' imprisonment.SubmissionsAppellant's submissions[16] Counsel for Mr Ngataki, Mr Shamy, did not take issue with the Judge's startingpoint, nor the various uplifts. The appeal focused exclusively on the discount appliedfor Mr Ngataki's cultural circumstances.[17] In arguing that the Judge should have applied a greater discount for the matterscontained in the cultural report and should have considered the merits of homedetention, Mr Shamy contended that three errors were made by the Judge.[18] First, the Judge did not afford sufficient recognition to Mr Ngataki'sself-reported history of having been subjected to violence and other forms of abuse.In other words, the Judge was sceptical of the reliability of Mr Ngataki's statementsto the report writer. Mr Shamy argued that abuse can often be difficult to corroborate,particularly where those most able to corroborate may have a vested interest in denyingit occurred. He also submitted there was in fact corroboration in the form ofMr Ngataki's mother's letter, wherein she confirmed Mr Ngataki's account.[19] Second, the Judge ought not have been sceptical of Mr Ngataki's rehabilitativeaspirations as recorded by the s 27 report writer. Mr Shamy argued the Judge placedtoo much weight on the presentence report wherein Mr Ngataki denied or minimisedhis offending. Mr Shamy noted that the cultural report, provided months after thepresentence report, contained reference to greater ownership of the offending byMr Ngataki. Additionally, Mr Shamy argued one of the purposes of rehabilitation isto help an offender gain insight into their offending.10[20] The third error, Mr Shamy argued, was a failure to re-examine sentencingprinciples in light of the cultural report. For instance, s 8(i) which provides for a courtto account for an offender's background when imposing a sentence or otherwisedealing with an offender with a rehabilitative purpose.[21] An increase in the discount for the cultural report from 10 per cent to15 per cent would be more than tinkering, Mr Shamy submitted, due to it making homedetention available for the Court's consideration. To this end, Mr Shamy argued forhome detention's rehabilitative potential, with reference to the pillars of Māori healthand wellbeing within the framework of Te Whare Tapa Whā.Respondent's submissions[22] First, Mr Alloway submitted the Judge's concerns around the self-reportedaspects of the cultural report pertained to the steps Mr Ngataki contended he had takenor intended to take to address his offending by way of rehabilitation, not hisbackground of abuse which the Judge plainly accepted had occurred.[23] Second, Mr Alloway submitted the Judge did not err in the weight he placedon Mr Ngataki's minimisation of the offending in the presentence report. Mr Allowaysaid the Judge was entitled to look at the history of Mr Ngataki's approach to his10 Ranford v Police [2021] NZHC 132 at [24].offending (including insight and rehabilitation) on the basis that past behaviour isrecognised to be a reliable predictor of future behaviour.[24] Third, Mr Alloway submitted that it is clear from the decision that the Judgedid appropriately apply all the relevant purposes and principles of the Sentencing Act2002.AnalysisStarting point[25] No issue was taken by either counsel with the starting point and relevant upliftsadopted by the Judge. I consider these were within the appropriate parametersavailable to the Judge.Cultural report[26] The rationale behind, and value of, cultural reports is well-trodden ground.Understanding the background of an offender may warrant a discount to reflect matterssuch as a reduction in moral culpability or scope for rehabilitation. There does needto be a causal nexus between the offending and the matters identified in the culturalreport, although this nexus does not need to be strong or extensively evidenced.11[27] Mr Ngataki's report reveals several matters. He was exposed to, and was avictim of, domestic violence from a young age. Normalisation of violence appearsthroughout his childhood and adolescence. He was also exposed to gang life and drugusage in his youth. In short, he was not protected by the adults in his life throughouthis childhood.[28] As to his adulthood, the report records that when Mr Ngataki was released fromprison in 2019, he "spoke of being motivated to attain employment and becomeindependent". For several reasons enumerated in the report, this did not ultimatelyoccur.11 Waikato-Tugeha v R [2021] NZCA 503 at [51].[29] The report dedicates a section to rehabilitation. While on remand, Mr Ngatakiexpressed a desire to engage in programmes on gang management and counselling andto be involved in a restorative justice process.[30] However, of equal note is that Mr Ngataki has failed to complete a preventingviolence course and "bailed early" on a course of residential rehabilitation with HigherGround.[31] In short, there is no proven record of Mr Ngataki actively initiating orcompleting any rehabilitation in his adult life.Did the Judge err?[32] I am satisfied the Judge did accept Mr Ngataki's account of his upbringing andthe harm he was exposed to. He also acknowledged the nexus between Mr Ngataki'straumatic upbringing and his offending.[33] The Judge was sceptical of Mr Ngataki's recent acceptance of culpability forthe offending and his articulated commitment to engage in rehabilitation. That wasopen to the Judge on the basis of past failures by Mr Ngataki when offeredopportunities to rehabilitate.[34] The Judge did not make express reference to specific sections of the SentencingAct. However, nothing in the judgment indicates the Judge was not abreast of all therelevant sentencing principles. For instance, when dealing with the cultural report, theJudge clearly considered issues of both reduction in moral culpability and possibilitiesfor rehabilitation.[35] Properly accounting for s 27 reports is a highly fact-specific enterprise, whichcan make drawing from analogous cases difficult.12 Nevertheless, particularly within12 Whittaker v R [2020] NZCA 241 at [51].the context of offending involving reasonably serious violence,13 a discount of10 per cent to account for the cultural report is within range and appropriate.14[36] Mr Ngataki's offending and lack of compliance with previous sentences alsomilitated against any higher discount.[37] In summary, I am satisfied the Judge did not err in applying a 10 per centdiscount for cultural and rehabilitative factors in this case.Conclusion[38] The appeal is dismissed.Doogue JSolicitors:Crown Solicitors, ChristchurchCC:B Shamy, Christchurch13 R v Patangata [2019] NZHC 744 at [44]; and Solicitor-General v Heta [2018] NZHC 2453, [2019]2 NZLR 241 at [57].14 Whittaker v R, above n 12; Solicitor General of New Zealand v SC [2017] NZHC 2252; Solicitor-General v Napia [2019] NZHC 742; Court-Clausen v R [2020] NZCA 488; and Solomon v NewZealand Police [2019] NZHC 2668.