MITAI-NGATAI v R [2021] NZCA 695

MITAI-NGATAI v R [2021] NZCA 695 [10 December 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA616/2021[2021] NZCA 695BETWEEN TAUHU DAVID MITAI-NGATAIAppellantAND THE QUEENRespondentCourt: French, Miller and Collins JJCounsel: E J Forster for AppellantP D Marshall and R E King for RespondentJudgment:(On the papers)10 December 2021 at 9.00 amReasons: 16 December 2021JUDGMENT OF THE COURTA The application for an extension of time to appeal against sentence isgranted.B The appeal against sentence is allowed.C The sentence of seven years' imprisonment is quashed and substitutedwith a sentence of two years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 5 March 2020, Mr Mitai-Ngatai was sentenced to seven years'imprisonment following his conviction in the High Court in relation to one charge ofindecent assault.1[2] The sentence imposed was the maximum prescribed by law and was imposedonly because it was Mr Mitai-Ngatai's third strike offence under s 86D(2) and (3) ofthe Sentencing Act 2002 (the three strikes regime). Those sections provide:86D Stage-3 offences other than murder: offender sentenced tomaximum term of imprisonment(2) Despite any other enactment, if, on any occasion, an offender isconvicted of 1 or more stage-3 offences other than murder, theHigh Court must sentence the offender to the maximum term ofimprisonment prescribed for each offence.(3) When the court sentences the offender under subsection (2), the courtmust order that the offender serve the sentence without parole unlessthe court is satisfied that, given the circumstances of the offence andthe offender, it would be manifestly unjust to make the order.[3] On 10 December 2021, we extended time for Mr Mitai-Ngatai to file his appealagainst sentence. We also allowed the appeal, quashed the sentence and substituted itwith one of two years' imprisonment. We explained that our reasons would follow ata later date. We now set out our reasons.Extension of time to appeal[4] On 7 October 2021, the Supreme Court delivered its judgment in Fitzgerald vR,2 in which the Court allowed an appeal against sentence for indecent assault. It wasMr Fitzgerald's third strike offence and he had been sentenced to seven years'imprisonment by the High Court.1 R v Mitai-Ngatai [2020] NZHC 410 [Sentencing notes].2 Fitzgerald v R [2021] NZSC 131 [Fitzgerald Supreme Court judgment].[5] As we shall explain, Mr Mitai-Ngatai's offending was more serious than inFitzgerald. Nevertheless, the Crown submitted that following Fitzgerald it would beappropriate to extend time for Mr Mitai-Ngatai to appeal. The Crown also said it hadno objection to us quashing the sentence and substituting it with a sentence in the rangeof 14–24 months' imprisonment.[6] Mr Mitai-Ngatai's application for an extension of time to appeal againstsentence was filed soon after the Supreme Court delivered its judgment in Fitzgerald.In view of the stance taken by the Crown, we granted Mr Mitai-Ngatai's applicationto extend time to appeal.The offending[7] On 8 March 2019, Mr Mitai-Ngatai was at a shopping mall in Tauranga. Heentered a clothing store and asked for two sets of children's pyjamas, one in the redcolours of the Mongrel Mob and the other in the blue colours of the Black Power. Thesales manager was a 20-year-old woman, who was working alone in the store. Sheexplained the shop did not have in stock the items sought by Mr Mitai-Ngatai. Heresponded by saying words to the effect "[t]hat's all right because you're so sexy inthose tights". Mr Mitai-Ngatai then approached the sales manager, grabbed herbuttocks and pulled her tights away from her body. He then released her but said hewould return. Mr Mitai-Ngatai then left the shop.[8] The victim impact statement records that the sales manager felt threatened byMr Mitai-Ngatai's references to wanting pyjamas in gang colours. She also feltstressed by the whole incident and said she should not have to go "through somethinglike this".Mr Mitai-Ngatai's previous offending[9] At the time he was sentenced, Mr Mitai-Ngatai was 59 years old. He hadaround 100 previous convictions dating back to 1980. Most of his offending occurredbetween 2008 and 2019. Mr Mitai-Ngatai's previous convictions include a number ofincidents of male assaults female, wilful trespass and breaches of court orders.[10] Mr Mitai-Ngatai's previous convictions include an indecent assault on a femaleunder 12 committed in 2013 and an indecent assault on a female over 16 committedin 2016. Those were Mr Mitai-Ngatai's first and second strike offences.[11] The first strike offence occurred when Mr Mitai-Ngatai touched the buttocksof a young friend of his daughter. He told Dr Street, a consultant psychiatrist, that theoffending in 2013 occurred after he had drunk methylated spirits.[12] The indecent assault that occurred in 2016 also happened after Mr Mitai-Ngataihad consumed methylated spirits. On that occasion he reached out and touched afemale ambulance officer and made a lewd comment to her. Mr Mitai-Ngatai wassentenced to 13 and a half months' imprisonment for that offending.[13] Mr Mitai-Ngatai has a history of psychiatric illness. He was assessed as havinglikely suffered major depression and anxiety disorders in the past. He also has beenfound to have a high dependency on alcohol, nicotine and cannabis.[14] Mr Mitai-Ngatai told the pre-sentence report writer that he had no recollectionof the offending on 8 March 2019. He said he had drunk a large quantity of vodkabefore the incident, after he had been "kicked out" of his daughter's house. The authorof the pre-sentence report observed that substance abuse had been at the forefront ofmost of Mr Mitai-Ngatai's previous offending.Sentencing decision[15] When sentencing Mr Mitai-Ngatai, Jagose J said that the offending wastowards the lower end of the scale of indecent assault offending.3[16] The Judge said that absent the three strikes regime Mr Mitai-Ngatai "may havebeen sentenced to something in the range of fourteen to eighteen months'imprisonment, and plausibly up to 24 months" imprisonment.43 Sentencing notes, above n 1, at [18].4 At [21] (footnotes omitted).[17] When sentencing Mr Mitai-Ngatai to seven years' imprisonment, Jagose J saidthat it would be grossly disproportionate for him to serve that sentence without parole.5Fitzgerald v R[18] Mr Fitzgerald's third strike offence occurred when he kissed a woman on hercheek when she and a friend were walking along a Wellington street.[19] Mr Fitzgerald had a long history of significant mental illness, includingschizophrenia. He sought a discharge without conviction in the High Court. The HighCourt, and a majority of this Court, held that there was no jurisdiction to grant adischarge in the context of the three strikes regime.6[20] The Supreme Court granted leave for Mr Fitzgerald to appeal his sentence. Amajority of the Court explained that where a sentence imposed pursuant to s 86D(2)of the Sentencing Act results in a breach of s 9 of the New Zealand Bill of Rights Act1990 (the NZBORA), then the defendant should be sentenced in accordance withordinary sentencing principles.7 The Supreme Court quashed Mr Fitzgerald's sentenceand remitted the matter back to the High Court where a sentence of six months'imprisonment was imposed.8[21] All four members of the majority in Fitzgerald confirmed there is a "highthreshold" to establishing that a sentence breaches s 9 of the NZBORA.Winkelmann CJ referred to phrases in Taunoa v Attorney-General,9 which state that,in order to breach s 9, the sentence would need to be "so out of proportion to theparticular circumstances as to cause shock and revulsion", "so excessive as to outragestandards of decency", or be a sentence that was "so severe as to shock the nationalconscience".10 O'Regan and Arnold JJ adopted a similar approach when they said "asentence which is simply severe, disproportionate or manifestly excessive would not5 At [22].6 R v Fitzgerald [2018] NZHC 1015 at [16]; and Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ350 at [74]–[75].7 Fitzgerald Supreme Court judgment, above n 2, at [252] per Glazebrook J and [231] per O'Reganand Arnold JJ.8 R v Fitzgerald [2021] NZHC 2940 at [14].9 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.10 Fitzgerald Supreme Court judgment, above n 2, at [77]–[79], citing Taunoa v Attorney-General,above n 9, at [92] per Elias CJ, at [172] per Blanchard J and at [289] per Tipping J.meet the test".11 Glazebrook J agreed with the reasons given by Winkelmann CJ andO'Regan and Arnold JJ. She said that a "sentence that breaches s 9 would be one thatis so out of proportion in the circumstances of the case that it would shock theconscience of New Zealanders".12Phillips v R[22] In Phillips v R,13 we discussed the legal principles that are likely to apply whena court is asked to consider whether or not a sentence imposed pursuant to the threestrikes regime breaches s 9 of the NZBORA.[23] Mr Phillips' third strike offence was also one that involved an indecent assault.He touched the arm and back of a woman who was sleeping in a backpackers bunkroom. Lang J, the sentencing Judge, said that absent the three strikes regime,Mr Phillips would have been sentenced to approximately 15 months' imprisonment.14[24] Mr Phillips applied for an extension of time to appeal soon after the SupremeCourt delivered its judgment in Fitzgerald. The Crown consented to an extension oftime for Mr Phillips to appeal and took no objection to the sentence of seven years'imprisonment being substituted with one of 15 months' imprisonment.[25] In Phillips we examined a number of decisions from cognate jurisdictionsbefore setting out three factors, which we suggested are likely to play a significant rolein determining whether or not a sentence imposed pursuant to s 86D(2) of theSentencing Act breaches s 9 of the NZBORA. Those three factors are:15(a) Any difference in the nature of the sentence that would otherwise havebeen imposed and the fact that a prison sentence must be imposed unders 86D(2). This consideration is illustrated by Fitzgerald where, in alllikelihood, a non-custodial sentence would have been imposed,compared to the prison sentence that was imposed pursuant to s 86D(2).11 At [161].12 At [239].13 Phillips v R [2021] NZCA 651.14 R v Phillips [2021] NZHC 610 at [26].15 Phillips v R, above n 13, at [28].(b) The difference between any prison sentence that would have beenimposed but for the three strikes regime and the prison sentenceimposed pursuant to s 86D(2). This may involve more than themultiplicative difference between the two sentences. It may also benecessary to take into account the actual difference in years betweenthe sentence imposed and that which would otherwise have beenadopted but for the three strikes regime.(c) The nature of the offending. This requires an assessment of whether ornot the defendant is plainly an inadvertent and unforeseen casualty ofthe three strikes regime.[26] We noted that a severe third strike sentence need not necessarily breach s 9 ofthe NZBORA. A sentence imposed in accordance with the three strikes regime maybe stern but not breach s 9, particularly in cases where the offending involves seriousviolence and the offender's history of serious offending indicates they present a dangerto the community.Analysis[27] In our assessment, Mr Mitai-Ngatai's offending is more serious than that inFitzgerald and Phillips. Our reasons for reaching this conclusion are:(a) Mr Mitai-Ngatai's offending occurred in a shop in which only thecomplainant was working at that time. While there were other peoplein the vicinity, we think it was significant that Mr Mitai-Ngatai targeteda vulnerable 20-year-old woman who was working on her own.(b) Mr Mitai-Ngatai's offending had strong sexual overtones. Hecommented on how "sexy" the complainant was, grabbed her buttocksand pulled on her tights.(c) Mr Mitai-Ngatai's reference to gang affiliations and that he would comeback to the shop were aggravating features in his offending.(d) Like Mr Phillips, Mr Mitai-Ngatai has a number of personality issues.They are not, however, as profound as Mr Fitzgerald's history ofsignificant mental illness, which reduced Mr Fitzgerald's culpability.[28] Applying the criteria we identified in Phillips, in Mr Mitai-Ngatai's case hisdeterminate end sentence of 84 months is 3.5 times greater than the24 months' imprisonment, which is the highest amount that would otherwise havebeen imposed. If Mr Mitai-Ngatai had been sentenced to two years' imprisonment andreleased after serving half that term, then the difference between his period in prisonunder the three strikes regime would be seven times that which he would normallyhave been expected to serve.16[29] Mr Mitai-Ngatai's offending is very close to the kind that the authors of thethree strikes regime may have contemplated when they passed s 86D(2) and (3) of theSentencing Act. As we observed in Phillips, when explaining the purpose of the threestrikes regime, the then Minister of Corrections, the Hon Judith Collins said:17[A] stage three sentence is meant to be a very serious penalty in all casesbecause the offender is continuing to commit very serious offences thatvictimise people. [The proposed amendment] would reduce any deterrentforce of the bill. If it is going to deter people from this sort of offending, itneeds to be very certain.[30] The seriousness of Mr Mitai-Ngatai's offending and his history of criminaloffending is such that his case is close to being one that does not offend s 9 of theNZBORA.[31] As we have emphasised however, we allowed Mr Mitai-Ngatai's appeal againstsentence because of the generous attitude taken by the Crown in this case and becauseof the amount of time Mr Mitai-Ngatai has now spent in prison for this offence. Infuture cases we are likely to require opposing submissions from the Crown.[32] We therefore quashed his sentence of seven years' imprisonment andsubstituted that sentence with one of two years' imprisonment.16 See Fitzgerald Supreme Court judgment, above n 2, at [281] per William Young J.17 (18 May 2010) 663 NZPD 10922.Result[33] The application for an extension of time to appeal against sentence is granted.[34] The appeal against sentence is allowed.[35] The sentence of seven years' imprisonment is quashed and substituted with asentence of two years' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent