NGAROPO v POLICE [2019] NZHC 2060

NGAROPO v POLICE [2019] NZHC 2060 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2019-463-56[2019] NZHC 2060BETWEEN IMELDA NGAROPOAppellantAND NEW ZEALAND POLICERespondentHearing: 21 August 2019Appearances: Appellant in person (with W Tautari as McKenzie friend)H J Sheridan for RespondentJudgment: 22 August 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 22 August 2019 at 10:00 amRegistrar/Deputy RegistrarSolicitors:Pollett Legal (Tauranga) for RespondentIntroduction[1] On 21 June 2019, Judge PS Rollo sentenced Ms Ngaropo to 80 hours'community work, with nine months' supervision.1 Ms Ngaropo now appeals thissentence. Her contention is she should have been discharged without penalty becauseof amends she had made at the direction of a body known, in short, as "Paa Kooti",The sentencing[2] Ms Ngaropo was sentenced by Judge Rollo on five charges related to herdriving.[3] Two charges arose from an occasion on 18 June 2018 when Ms Ngaropo wasfound to be driving with excess breath alcohol. The level was 694 micrograms ofalcohol per litre of breath. Ms Ngaropo was also driving while disqualified. Thedrink-driving charge was aggravated because Ms Ngaropo had twice previously beenconvicted of drink-driving (on 29 July 1996 and on 24 January 2018).[4] The remaining three charges arose from Ms Ngaropo's driving on 5 October2018. The charges were driving with excess blood alcohol, with a level of133 milligrams of alcohol per 100 milligrams of blood; driving while disqualified; andassault on a police constable acting in the execution of her duty (charged under theSummary Offences Act 1981). The drink-driving offence in this set of charges wasalso in the aggravated form because it was Ms Ngaropo's fourth offence of this kind.[5] Ms Ngaropo pleaded not guilty to the 5 October 2018 offending and wasconvicted following trial before Judge Rollo.[6] Judge Rollo records that Ms Ngaropo did not challenge any of the prosecutionevidence and did not participate in the proceeding itself. I infer this was because ofMs Ngaropo's view of the jurisdiction of the Court.1 Police v Ngaropo [2019] NZDC 12302.The appeal[7] The nub of Ms Ngaropo's appeal is that because of the involvement of PaaKooti, and the work in the community she did as a result, she had addressed heroffending to the point where Judge Rollo should have discharged her.[8] My task is to see whether Judge Rollo made an error such that a differentsentence should be imposed. If the sentence is manifestly excessive that will be suchan error. I start by setting out the Judge's approach to the Paa Kooti involvement:[6] The background to that is your involvement in an organisation calledPaa Kooti. It is a Māori kaupapa that is focused, in this area, out of TePuke. It is marae and whanau-based and my understanding of the processis that it is intended to be a form of alternative system of justice to be dealtwith, effectively on marae, by Māori dealing with Māori offenders. Thedifficulty, as we have previously discussed, not only in your case but inanother case you were present at involving a young man who was beingassisted by Mr Tautari and others, is that the law does not recognise analternative form of justice in the way Paa Kooti seeks to provide.[7] Having said that, Ms Ngaropo, there are a number of steps beingtaken within the Courts and within the Justice Ministry to look at differentways to deal with criminal offending, or traffic offending, particularly tomeet expectations and cultural differences with Māori, so you might beslightly ahead of the law in the approach which you and the Paa Kootikaupapa are embracing.[8] Having said that, as we have again previously discussed, as a Judgeof the District Court, I am bound to apply the law as it currently is, not asit might become in due course.[11] The second point is that the documents which you have put beforeme, including an affidavit from Mr Tautari, tell me that you have had anadjudication, effectively, by the Paa Kooti kaupapa, as to how you shouldrepay the community for your offending, specifically, that you undertake160 hours' community work, as overseen by the Paa Kooti organisation,and that you undertake some rehabilitative counselling.[12] I accept the documents that Mr Tautari has put before me which recordthat you have undertaken various work for persons, intending it to be'community work'.[13] The problem, and it is a problem that has been at the forefront ofconflict in belief by the Paa Kooti organisation and the Courts in the past,is that community work should be sanctioned through the agency thatadministers sentences of community work in Aotearoa/New Zealand andthat is the Department of Corrections. And the attitude which theDepartment has taken is that, if it is not a sanctioned form of communitywork, then it does not count as 'community work'.[14] I know from past experience, and Mr Tautari and I discussed thisat the last hearing, as I recall, that on occasions, particularly in my case, Ihave given credit where there was some uncertainty as to whether'informal' community work was approved or not. That was in WhakataneDistrict Court some years ago.[15] The secondary point is that the 'counselling' which you haveundertaken, that does not have to be sanctioned through the Department ofCorrections. The law recognises that, if a person takes rehabilitative stepsto address the causes of their offending, then they are entitled to credit forthat in the sentencing process. What I am told is that you have completedan alcohol course through the local hauora and done so successfully andso, what you are putting before me, in effect, through the Paa Kootikaupapa, is a body of community work, so called, and the rehabilitativealcohol course.[9] Judge Rollo went on to consider Ms Ngaropo's personal circumstances anddecided not to follow the recommendation of imprisonment in the latest PAC report:2I think the most positive thing is that you have taken some steps to makechanges in your life, supported by Mr Tautari and the wider whānau whosupport you today, and my embracing that is going to be beneficial in thelonger term.[10] In addition to the sentence of community work and supervision, Judge Rollogranted Ms Ngaropo an alcohol interlock licence and did not impose disqualificationson the two disqualified driving charges.[11] Judge Rollo made it clear this was a sentence imposed as an alternative to asentence of imprisonment and warned Ms Ngaropo that any further drink-drivingoffending would be met with a sentence starting point of imprisonment.Discussion[12] This Court has twice before considered how work undertaken by people underthe auspices of Paa Kooti should be taken into account by a sentencing Court. JusticeMoore's decision of 16 October 2017 is the first and major judgment.3 That was a2 At [18].3 Oneroa-Hill v District Court at Tauranga [2017] NZHC 2471.case where mahi was undertaken by a person prior to the District Court consideringremitting outstanding fines through the substitution of community work.[13] I respectfully agree with the principles set out and discussed by Moore J. Inbrief summary they are:• The jurisdiction of Paa Kooti cannot be recognised by the Courts.• There is ample provision in the Sentencing Act 2002 by which mahiundertaken by a person to address criminal wrongdoing can be, and should be,taken into account by a sentencing Court. It includes s 8(i) which providespathways by which Māori customary considerations may be taken into accountin the sentencing process; s 10 which requires the sentencing Court to take intoaccount (relevantly) the performance of any work or service made by or onbehalf of the offender to the victim as well as any remedial action taken by theoffender in relation to the circumstances of the offending; and s 27 whichentitles an offender to ask the Court to hear from whanau and others on theoffender's cultural background.• The weight to be given to mahi depends on proof it has been carried out anddetails of what was done.• The relevance of mahi goes to remorse and making amends. In other words, itgoes to mitigation of the offending and can point to rehabilitation.[14] Justice Moore made the following comments, which I adopt for the purposesof this appeal:[58] All of these points simply reinforce that the mahi undertakenvoluntarily by [the appellant] is merely evidence from which to infer theexistence of mitigating factors such as acceptance of responsibility andcompletion of remedial action. It is not work which operates in any way as asubstitute for the community work which would have otherwise been imposedby a sentencing Court. Offenders who may attempt to pre-empt a sentence ofcommunity work by undertaking work voluntarily therefore risk receivinglimited, or even no, recognition at sentencing for that work.[59] For this reason, institutions such as Paa Kooti as well as offenderswishing to undertake significant amounts of voluntary community workwould be well advised to work co-operatively with the Department ofCorrections and the Courts to protect against unnecessary and significantduplication of work. To do otherwise would be to run the very real risk thatwork undertaken outside the auspices of properly regulated Governmentagencies, will not be taken into account. This will have the effect thatoffenders will find themselves duplicating their efforts by not only completingcommunity work within their own societal structures but also being requiredto complete the full amount of any sentence of community work imposed bythe Court.[15] Justice Edwards, in her judgment of 16 February 2018,4 dealt with a furtherappeal by the appellant from the resentencing by the District Court ordered by Moore Jas the outcome of the appeal before him. Justice Edwards concurred with Moore J'sanalysis and considered the 40 percent discount applied by the District Court Judge inreduction of community work hours in response to the mahi was generous.[16] In this case, although Judge Rollo accepted the documents put forward asestablishing the mahi, the detail in them is sparse. From my perusal it seemsMs Ngaropo predominantly assisted Paa Kooti with kaimahi. No details are given.[17] The mahi was not done in consultation with the Department of Corrections.[18] I accept that Judge Rollo could have discussed more fully the weight he wouldgive to the mahi. However, in an appeal against sentence it is the end sentence that isthe key consideration, not whether the path to it might have been expressed in a moredetailed way.[19] My reading of Judge Rollo's sentencing notes is that the Judge did, in a holisticway, take the mahi into account. He saw it as part of the steps Ms Ngaropo had takento make changes in her life. Those changes persuaded the Judge to step back fromimprisonment.[20] In my view, the end sentence imposed by the Judge gave full weight toMs Ngaropo's work and efforts to make amends to society by performing it. On myassessment, a sentence of intensive supervision coupled with community detentionwas available. The actual end sentence is lenient and explicable only by the Judge4 Oneroa-Hill v Department of Corrections [2018] NZHC 163.giving Ms Ngaropo full credit for her rehabilitative progress. The Judge's view of thatprogress seems justified. Ms Ngaropo told me she and her partner are employed, theylive at the marae, and the marae is an alcohol-free environment.Result[21] The appeal is dismissed.________________________________Brewer J