NGAMOKI v POLICE [2023] NZHC 2813

NGAMOKI v POLICE [2023] NZHC 2813 [6 October 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-34[2023] NZHC 2813BETWEEN RANGITUATATA MAAKA TU NGAMOKIAppellantAND NEW ZEALAND POLICERespondentHearing: 4 October 2023Appearances: C M Andersen for the AppellantM E A Brosnan for the RespondentJudgment: 6 October 2023JUDGMENT OF HARLAND JIntroduction[1] This appeal, which the Crown opposes, initially concerned the correctcalculation of the sentence of 25 months' imprisonment imposed on RangituatataNgamoki in the Alexandra District Court on 20 February 2023.1 Having consideredCrown counsel's submissions however, Ms Andersen, on behalf of Mr Ngamoki,accepted that the Judge's methodology for calculating the end sentence he imposedaccorded with the methodology now required as a result of Moses v R.2[2] At the hearing, however, Ms Andersen advanced two further submissions insupport of Mr Ngamoki's appeal justifying the result which she had initiallycontended, namely that this Court should allow the appeal and impose an end sentenceof either 24 or 23 months' imprisonment.1 New Zealand Police v Ngamoki [2023] NZDC 3282.2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.[3] Ms Andersen challenged the amount of the uplift the Judge awarded to reflectMr Ngamoki's previous offending, and she invited me to follow the approach inReweti v R,3 which held cases that result in an end sentence on the cusp of homedetention may require an adjustment if they plainly call for a merciful approach.4[4] Ms Brosnan for the Crown maintained that the overall sentence was notmanifestly excessive and therefore the appeal ought to be dismissed.Background[5] In order to provide a context to Ms Andersen's submissions, I now brieflyoutline the background to the charges.[6] Mr Ngamoki was sentenced by Judge Robinson in respect of charges ofintentional damage on 23 December 2021, theft of a donation box on 13 March 2020,and two charges of burglary, a charge of threatening to kill, aggravated assault andresisting Police on 19 March 2022.[7] The facts were outlined in paras [4]–[9] of Judge Robinson's decision. Insummary, the charge of intentional damage relates to Mr Ngamoki punching a glasspanel and breaking it, while heavily intoxicated, when he was asked to leave a hotelin Dunedin. The theft of the donation box relates to Mr Ngamoki taking a donationbox owned by St John from a motel reception area in Haast.[8] The lead and most serious charges concern what happened in Cromwell in theearly hours of the morning on 19 March 2022 when Mr Ngamoki entered a block ofresidential flats in Cromwell rented by polytechnic students. Having been asked toleave one of the flats, Mr Ngamoki entered another where a young woman was asleepin bed. He watched her sleep before she awoke to find him standing over her. Beforehe left that address, he took food from the kitchen.[9] Mr Ngamoki then went back into the first flat, accused the occupants of narkingand threatened them, saying that he would pull a knife and that he was a member of a3 Reweti v R [2018] NZHC 809 at [24] referred to in Moses v R, above n 2, at [39].4 Moses v R, above n 2, at [64].gang. Fearing for their safety, the occupants offered Mr Ngamoki alcohol in an attemptto have him leave the premises.[10] The Police were called. Mr Ngamoki was aggressive, threatened to hunt aPolice officer down and shoot him, and made threats to kill on multiple occasions. Helashed out at the Police, kicking another constable in the head, causing the officer tolose balance. He was aggressive and hostile towards the Police as they attempted toarrest him.[11] The Judge referred to Mr Ngamoki's criminal history, observing that at the ageof 27 he had already amassed an extensive history involving multiple convictions fordishonesty, burglary and violence.[12] He then referred to the pre-sentence report and said:[13] The pre-sentence report is troubling, to say the least. You are assessedat moderate to high risk of offending, based on what is described as your totalcontempt for the judicial system, your refusal to engage with Probation, andyour history of offending. The risk of harm to others is assessed as moderate,and I suspect it will only increase if you fail to engage in rehabilitation.[13] With reference to the s 27 report that had been prepared for Mr Ngamoki, theJudge noted that Mr Ngamoki's background was somewhat unusual because he hadexperienced a positive upbringing with a degree of parental support. The Judge notedthe fact that Mr Ngamoki's siblings had achieved well and he observed that there wasno history of inter-generational offending or trauma. The Judge however noted thatMr Ngamoki had been identified as having an undiagnosed attention deficit disorderand alcohol addiction issues.[14] The Judge's calculation of the starting point, and the uplift and discounts heapplied are set out in the following table:Starting pointStarting point for two burglary charges – 24months' imprisonmentUplift for aggravated assault, threatening to killand resisting police charges – six months'imprisonmentGlobal starting point of 31months' imprisonmentUplift for charges of intentional damage and theft– one month's imprisonmentPersonal factorsUplift for previous convictions of dishonestyoffending, burglary and violence – 15 per centDiscount for guilty pleas – 25 per centDiscount for alcohol and drug addiction andADHD – 10 per centTotal discount of 20 per cent(25 + 10 – 15)End sentence31 months – 20 per cent 24.8 months' imprisonment(rounded to 25 months'imprisonment)The appeal[15] The principles applicable on appeal are well known and need not be repeated.The Court must allow an appeal if it is satisfied that, for any reason, there is an errorin the sentence imposed and a different sentence should be imposed.5 Otherwise, theCourt must dismiss the appeal.6 An appeal court should not intervene where thesentence imposed is within an available range. However, it can substitute its own viewif the sentence under appeal is manifestly excessive or one that cannot be justified onthe application of relevant sentencing principles.7Discussion[16] As can be seen, the Judge applied an uplift of 15 per cent to reflect MrNgamoki's previous convictions for dishonesty offending, burglary and violence. MsAndersen submitted that 15 per cent was disproportionate and the uplift ought to haveamounted to 10 per cent.[17] Mr Ngamoki has an extensive criminal record. Recent convictions includetaking documents for a pecuniary advantage (two convictions), unlawfully being in ayard, shoplifting, theft, wilful damage (four), burglary (eight), assault (four) andthreatening to kill (three), although some of these convictions occurred after some ofthe offending Mr Ngamoki was presently charged with. In respect of these5 Criminal Procedure Act 2011, s 250(2).6 Section 250(3).7 Tutakangahau v R [2014] NZCA 279 at [36]; and Ripia v R [2011] NZCA 101 at [15].convictions, Mr Ngamoki has mostly been sentenced to non-custodial sentences, buthe was sentenced to eight months' imprisonment to be served concurrently with twocharges of burglary for offending on 24 January 2016, one month's imprisonment foroffending on 6 July 2015, and six months' imprisonment for a charge of threateningto kill for offending on 20 December 2016. He also has served periods of homedetention for charges of wilful damage, assault and threatening to kill. Mr Ngamokialso has six convictions for breaching sentences, which Ms Brosnan suggests meansthat the sentences imposed did not have the necessary deterrence or accountabilityimpact.[18] If the 10 per cent uplift is applied, Ms Andersen submitted that this would takethe end sentence, applying the Moses methodology, to one of 23.25 months'imprisonment.[19] Ms Brosnan in response characterised the uplift as stern but not out of range.She also submitted that the starting point adopted by the Judge was generous to MrNgamoki given that there were two burglaries involved. She submitted that the rangeavailable to the Judge could well have been more than 25 months' imprisonment. MsBrosnan also notes that Mr Ngamoki was subject to a sentence of supervision andcommunity work when the present offending occurred (other than the theft charge),which could further justify an uplift,8 although caution needs to be taken to avoiddouble counting.[20] Overall, Ms Brosnan submitted that the sentence was not manifestly excessiveand that to interfere with it, particularly if there was a difference between 1 to 1.5months' imprisonment, would be tinkering.[21] Uplifts for previous convictions must be proportionate to the sentence imposedfor the previous offending and the sentence for the present offending.9 An uplift isunlikely to be proportionate if it exceeds the prior sentence, including where the priorsentence was less than a sentence of imprisonment.10 Here, the uplift of 15 per cent8 Sentencing Act 2002, s 9(1)(c).9 R v Ward [1976] 1 NZLR 588 (CA) at 590; Tiplady-Koroheke v R [2012] NZCA 477 at [24]; andWebb v R [2022] NZCA 137 at [27].10 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41]; and Webb v R, above n 9, at [27].of 31 months' imprisonment is equal to 4.65 months' imprisonment, which is roughlyone third of the total sentences of imprisonment for the relevant previous convictions.[22] Accepting that, for an incarcerated defendant, the difference between 1 and 1.5months of a sentence is significant, I am nonetheless not persuaded that the overallsentence can be said to be manifestly excessive. I agree with Ms Brosnan that thestarting point for the burglary charges is within range but could well have been higherand there could have also been an uplift for offending while subject to sentence. I alsoagree that the uplift, although possibly near the upper end of the range, wasnonetheless still available to the Judge.[23] Alternatively, Ms Andersen submitted that the calculation of uplift andmitigating matters, if the 15 per cent uplift was rounded from 4.65 months to 4 monthsand the 35 per cent discount was rounded from 10.85 months to 11 months, wouldresult in an end sentence of 24 months' imprisonment, instead of the Crown'sassessment of 24.8 months rounded to 25 months. Ms Andersen submitted thisrounding down to 24 months would be appropriate as a result of Reweti v R. However,Ms Andersen accepted that no home detention address was available for Mr Ngamokiand therefore that was not a consideration for this Court. Nonetheless, she submittedthat an end sentence of 24 months' imprisonment would be the "right sentence" to beimposed as it would be categorised as a short rather than long term of imprisonment.[24] The District Court Judge did not round the uplift and discounts but appliedthem as a net percentage to the starting point. He took 20 per cent off the starting pointof 31 months, which would result in an end sentence of 24.8 months' imprisonment,which was then rounded to 25 months' imprisonment. The Supreme Court in Su v Rcommented: "Whether adjustments to sentences expressed as percentages are roundedup or down when translated into actual weeks, months or years will depend on theparticular circumstances of each case".11 The Court of Appeal in Ferris-Bromley v Rcommented that "if the period of months does not equate exactly to the percentage,there is no failure of intent, no patent error and no basis to intervene".1211 Su v R [2020] NZSC 156 at [12].12 Ferris-Bromley v R [2017] NZCA 115 at [17].[25] I do consider that the judgment in Reweti v R suggests a different approachshould be taken. That case was cited in Moses v R as demonstrating a case where thetwo-step methodology, where guilty pleas are not calculated as a separate step insentencing, was adopted when the three-stage methodology with a separate guilty pleastep was predominant.13 The Court of Appeal in Moses v R noted that subsequentcases took the approach that the two-step approach in Reweti was only available wheresentences were on the cusp of home detention and plainly called for a mercifulapproach.14 Of course, that two-step approach became the default approach after thejudgment in Moses and was applied in this case. Reweti is not authority for goingbeyond that approach.[26] Overall, I am not satisfied that the end sentence was manifestly excessive.Result[27] The appeal is dismissed.____________________Harland JSolicitors:C M Andersen, Barrister, DunedinRPB Law / Crown Solicitor, Dunedin.13 Moses v R, above n 2, at [39] and [41].14 At [41].