Ngati v R

[2008] NSWCCA 3

New South Wales
Court of Criminal Appeal

CITATION:	John Walsh NGATI v R [2008] NSWCCA 3
HEARING DATE(S):	13 December 2007
JUDGMENT DATE:	31 January 2008
JUDGMENT OF:	Tobias JA at 1; Hidden J at 2; Barr J at 3
DECISION:	Conviction appeal dismissed Leave granted to appeal against sentence Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - whether verdict unreasonable or incapable of being supported by the evidence - majority verdict - whether trial judge erred in directing jury - jury - voting figures - whether appropriate to disclose - application for leave to appeal against sentence - whether sentence excessive - whether disparity in sentences
CASES CITED:	M v The Queen (1994) 181 CLR 487 Black v The Queen (1993) 179 CLR 44 R v RJS [2007] NSWCCA 241 R v VST [2003] VSCA 35 R v Smith [1982] 2 NSWLR 608 R v Burrell [2007] NSWCCA 65
PARTIES:	John Walsh Ngati Regina
FILE NUMBER(S):	CCA 2006/5254
COUNSEL:	D Marr (Appellant) G Rowling (Crown)
SOLICITORS:	L David Lock Solicitor (Appellant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/3008
LOWER COURT JUDICIAL OFFICER:	Hulme SC DCJ
LOWER COURT DATE OF DECISION:	24 November 2006

2006/5254

TOBIAS JA
HIDDEN J
BARR J

31 January 2008

JOHN WALSH NGATI v REGINA

Judgment

1 TOBIAS JA: I agree with Barr J

2 HIDDEN J: I agree with Barr J

3 BARR J: The appellant, John Walsh Ngati, has appealed against a conviction entered in the District Court and has sought leave to appeal against the resulting sentence. The appellant was charged that on 15 June 2005 at Airds, while in the company of another person, he broke and entered a certain dwelling house and committed therein a serious indictable offence, namely the assault of Barbara Keeley, occasioning her actual bodily harm.

The conviction appeal

4 Ms Keeley and her children, who included teenagers whom I shall call simply J and R, lived in a house at Airds. Nearby lived the Ngati family, who comprised or included the appellant, his wife, a son whom I shall call H and daughters whom I shall call simply P and T. On the day of the events giving rise to the charge, Ms Keeley had a conversation with one of the young persons who lived in the district and he spoke to her in an insulting way. Ms Keeley went to the young person’s mother and spoke to her about it, and she reprimanded him. He happened to be a friend of H, the son of the appellant. Not long afterwards the appellant, his wife, H and P walked down the road towards Ms Keeley’s house, calling her out. Ms Keeley was afraid, ran into the house and locked the front door and the security door. Members of the Ngati family stepped up onto the veranda and began banging on the window. They smashed the window. H enlarged the break by kicking out the glass and entered the house through the resulting breach. Other members of the Ngati family entered the house, probably after the front door was opened from the inside, and set upon Ms Keeley. She sustained bodily injury. There was no issue at trial whether Mrs Ngati or either H or P had assaulted Ms Keeley. They had all previously admitted to doing so, Mrs Ngati in the District Court and the two children in the Children’s Court. There was no evidence that the appellant had landed any of the blows that injured Ms Keeley. The Crown case against him was that he was present, encouraging or assisting or standing by ready to assist those members of his family who assaulted Ms Keeley. The resolution of that question depended on the answer to the question whether the appellant entered the house. The jury were instructed that if they were satisfied beyond reasonable doubt that he did enter the house, they could find him guilty of the charge.

5 It is convenient to deal first with the third ground of appeal, namely that the verdict was unreasonable or incapable of being supported by the evidence. The test to be applied in determining whether the verdict should be set aside on the ground that it is unreasonable is that set out in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493 -

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Footnotes omitted)

6 Ms Keeley said in evidence that she saw the appellant, his wife, P and H in the middle of the road walking towards her house. They were all yelling, telling her to get over to them. She said to them that her speaking to the youth’s mother had nothing to do with them. She was in the driveway of the house and had to get quickly inside the house. She was about seven metres from her front door when they were about the same distance from her front gate. She hurried to her front door because they were still walking and yelling and swearing at her. She went inside and locked the latch on the screen door and closed the door behind it. She could see through the vertical blinds and the lace curtain at the front window. She saw the four of them on the veranda, still yelling to her to get outside, to come out, calling her a slut and a mole. She was afraid to go outside. They started banging on the windows. She stood near the front door, guarding the door. The window broke. The hand of H came through and then he smashed the rest of the glass with his foot. He entered the house through the window. He pushed a lounge chair out of the way and pushed her out of the way and went looking through the house. The mother and the daughter reached in and grabbed her by the arm and tried to drag her through the window. She managed to resist. She was afraid for her children. She gave her daughter R a cordless telephone and told her to ring 000. She spoke to the emergency operator herself. At one point she was trying to push the girls into the safety of R’s bedroom and told them to lock the door and not to open it. The appellant’s son H was looking through the house. His wife and daughter dragged her out of R’s bedroom. The appellant was pacing in the open space between the dining room and the lounge. They were all talking at once saying, “get out here” and yelling and swearing. She went on to describe the attack made by the appellant’s wife and daughter, punching her and pulling her hair out.

7 Ms Keeley’s daughter R gave evidence. She said that the appellant, his wife and the two children were together at the front of the Keeley house, walking towards it and yelling things like “come out here and fight me”. Her mother said that it was nothing to do with them. She saw them walk into the yard. Her mother came into the house and locked the door. The four then climbed up on the veranda and she saw them there, yelling to her mother to come outside, knocking on the windows and banging on the wall. Her mother told her to use the phone to dial 000, and after the window broke she did so. She went to her bedroom with other children. She remained in the room and heard loud noises as though the house was being smashed. At one point her mother tried to get into the room, but R was sitting on the floor behind the door and made it difficult for her to do so. She stayed on the telephone until she heard the sirens and the arrival of the police. She did not see the appellant in the house.

8 Ms Keeley’s son J gave evidence. He was in his bedroom, which faced the front of the house. He heard voices, yelling, and his mother yelling. He looked quickly out the front and saw H walking with the appellant. The appellant had a piece of wood in his hand. He picked up his telephone and wallet and ran out through the back door. He jumped over his back fence into the back yard of a neighbour, Steven King. He and King telephoned the police from the kitchen of that house. The people he spoke to told him to stay on the phone until he heard the sirens, so he did so. He was worried about his mother and sisters, so he was watching out of the kitchen window of the house he was in. He saw the appellant walk out of the back door with his son H. They walked down the back steps, around the back yard, had a look and then re-entered the house. When he heard the police sirens he disconnected the telephone, went back over the fence and returned home. When he got into the house he saw police and ambulance officers. He saw the appellant’s wife, son and daughter but not the appellant himself.

9 Mr King gave evidence that did not entirely correspond with that of J. He said that when the noise began he was in the Keeley house with J. He heard yelling in the street. He could not hear what was being said but that they called Ms Keeley a slut. He heard the window break. He and J went into the lounge and saw H and his sister in the lounge. He and J went to the back of the house, jumped the back fence and went to ring the police. He agreed that he had made his statement to the police only about two weeks before he gave evidence. He did not see the appellant in the Keeley house or in the back yard.

10 The appellant gave evidence. He appeared to agree that he, his wife, son and daughter had approached the house, but said that he remained outside the fence facing the front door. He did not even go into the yard. He admitted that he had lied to the police in an interview when he denied that his son or his daughter had entered the house. He agreed that they had entered the house. He said that he had lied in order to protect them. He said that his wife and the two children went into the house and he saw his wife come out, escorted by the police. He denied holding a piece of wood. He said that Ms Keeley had pushed H and had called P a “fucking black nigger”.

11 H gave evidence. He, too, said that Ms Keeley had pushed him and had used towards his sister the words uttered by the appellant. He admitted that he had entered the house.

12 P gave evidence. She, too, spoke of the pushing and the words attributed to Ms Keeley. She admitted entering the house.

13 Neither H nor P recalled ever seeing the appellant in the house.

14 There were other witnesses as well, though I do not find it necessary to summarise their evidence.

15 Mr Marr, for the appellant, conceded that there was sufficient evidence which, if accepted, was apt to satisfy the jury of the appellant’s guilt. Although he did not abandon this ground of appeal he did not, I thought, press it with any vigour. Plainly there was an abundance of evidence from Ms Keeley and from her son J to prove the presence of the appellant in the house. The frightening circumstances that undoubtedly took place may have been apt to result in mistaken recollection, though my reading of the transcript of evidence does not suggest that the two persons who identified the appellant as an entrant were mistaken. It seems to me that the conflicts in the evidence were peculiarly of the type that can only properly be resolved by a jury seeing and listening to the witnesses. Acknowledging the superior position of the jury I conclude that it was open to the jury to be satisfied beyond reasonable doubt on the evidence of Ms Keeley and J that the appellant was in the Keeley house at relevant times.

16 I would dismiss this ground of appeal.

17 The remaining two grounds of appeal may be dealt with together. They are that the trial judge erred in directing the jury in his summing up in relation to majority verdicts and that he erred in directing the jury in relation to majority verdicts when he gave a direction in accordance with Black v The Queen (1993) 179 CLR 44.

18 During the summing up his Honour said this to the jury -

Under our system of law, your verdict, whether it be guilty or not guilty, ought to be unanimous. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence, or place a different emphasis on parts of the evidence. However, by whatever route you each arrive at that ultimate decision of guilty or not guilty, that final decision must be the decision of you all, that is, unanimously before it can become your verdict.

You may know the law now permits me, in certain circumstances, to accept a majority verdict. Those circumstances have not yet arisen, so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a verdict which is not unanimous, I will give you a further direction.

19 At the end of the summing up, immediately before he invited the jury to retire to consider its verdict, his Honour dealt with some final matters. There was this paragraph -

Thirdly, if you reach a stage of your deliberations when you think you are just not going to be able to reach a unanimous verdict, send me a note to that effect and I will endeavour to provide some further assistance.

20 Almost one and a half hours later the jury wrote a note, MFI 9, in the following terms -

”At the moment, the verdict is as follows. Seven by guilty, five by not guilty. At the present time no-one is willing to change".

21 This exchange between his Honour and counsel ensued -

HIS HONOUR: I have in mind giving the jury a Black direction. Any views?

HARRISON (for the Crown): That would be the only appropriate course. They seem to have reached the conclusion reasonably quickly and individually. Whether or not - I suppose there's only two course, either a full Black direction or your Honour asks them to take about it a little bit more without going into the full Black direction but--

HIS HONOUR: Yes, I think they need the assistance of those components of the Black direction that invite them to listen to others and challenge their own thoughts but nevertheless remain true to their oath. Mr Marr?
MARR (defence counsel): They have been out less than an hour and a half. There's quite a lot of evidence. I am in your Honour's hands. They probably should be given some assistance, your Honour.
HIS HONOUR: Yes. I am just wondering whether I should tell them. Part of the modified Black direction that is now suggested includes this. The circumstances in which I may take a majority verdict have not yet arisen, and you should still consider that your verdict of guilty or not guilty must be unanimous. I just wonder whether I should say something to the effect of when the circumstances do arise, in which I may accept a majority verdict, the majority is 11/one and not any less than that. I am just wondering whether the jury are thinking, well, we are a majority now. We can't advance it and they are looking for some indication as to when such a majority can be accepted.
MARR: I must confess I have not looked at the law in relation to majority verdicts. I haven't had to deal with it. I should have looked at it. Your Honour, is there some period of time involved before--
HIS HONOUR: The provisions of the Jury Act now provide that I may - and it is a matter for my discretion - but I may accept an 11/one majority verdict, assuming a full jury of 12, once a reasonable time has elapsed, the jury have been deliberating for a reasonable amount of time, but that such reasonable time must not be less than eight hours. The circumstances in which I can discharge a jury on one view of the provisions, is upon my satisfaction that they will not reach a majority verdict, and that is a little awkward when the time has not yet arisen when I can even accept one.
I am just wondering if, for example, the jury were to remain deadlocked, as they are, or there is some slight movement, but they come back in another hour or something like that and say, we're still at this situation, on one view of the provisions I could not discharge them until I was satisfied they could not reach an 11/one majority. So I am just wondering whether I should be clear with them from the outset, what I am talking about, when I am talking about a majority verdict and so forth, so that it comes as no surprise to them later on when I am telling them about it. I can't see any harm in it myself to disclose that little piece of information.
MARR: Your Honour, I don't think it would necessarily assist the accused if they were told now about 11/one but if your Honour said something about the limited circumstances in which there can be a majority verdict, what the jury has presently indicated would not satisfy that, and that the time has not arisen - has not yet arisen - in which that could be considered.
HIS HONOUR: What I might say is this. Adding to the passage I just referred to, when I refer to a majority verdict, the law now provides that in certain circumstances a verdict of guilty or not guilty, agreed upon by 11 of you can be accepted. Those circumstances, as I have said, have not yet arisen. Your verdict, at this stage, must be agreed upon by all 12. I don't see any harm in giving them that piece of information really.
Potentially, also I could tell them that it has got to be after a minimum of eight hours deliberation, but I don't know that I need to - that that would be useful to them, at this stage.

MARR: My concern is that after being out for an hour and a half they may then attempt to come to a majority verdict, instead of being deadlocked for eight hours.

HIS HONOUR: Well, I'm being clear with them that their verdict must be a unanimous one. I cannot accept a majority verdict. That's further confirmed in a latter stage of the suggested direction. Anything further. Can I have the jury, please.

22 The jury returned to court and his Honour gave the following further directions -

HIS HONOUR: Thank you, ladies and gentlemen. I've received a note from you which is in these terms:

"At the moment, the verdict is as follows. Seven by guilty, five by not guilty, and at the present time no-one is willing to change".

There is a further direction I can give you in these circumstances. Before I do so I should indicate that is unnecessary for you to disclose the split in your consideration of your verdict. The only thing that is important to me, at this stage, is that you are split and you are unable to agree.

I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation.
There seems to be some sort of a disturbance in a room, in a lower room, of this building. I would ask for your forbearance and see if you can concentrate on what I am saying.
The circumstances in which I may take a majority verdict have not yet arisen, and you should still consider that your verdict of guilty or not guilty must be unanimous. Now, when I refer to a majority verdict, the law now provides that in certain circumstances a verdict of guilty or not guilty agreed upon by eleven out of twelve jurors may be accepted. Those circumstances, as I have said, have not yet arisen, so you must confine yourself to attempting to reach a unanimous verdict either way of guilty or not guilty.
Experience has shown that juries can often agree if given more time to consider and discuss the issues. But if after calmly considering the evidence, and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has either sworn or affirmed that you will give a true verdict according to the evidence, and that is an important responsibility. You must fulfil it to the best of your ability. Each of you, as I have indicated earlier, takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion, which you may have, and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can consistently with your oath, or your affirmation, as a juror join the verdict if you do not honestly and genuinely think it is a correct one.

I remind you your verdict, whether it be guilty or not guilty, must be a unanimous one. All twelve of you must in the end agree upon that verdict. It may be that the particular paths which lead each of you to that unanimous decision are not quite the same, but nevertheless your verdict of guilty or not guilty must be the verdict of you all. In other words, provided that you all agree that a particular verdict should be given, it does not matter that you do not agree as to why that particular verdict should be given. Experience has shown that juries are able - often able - to agree in the end if they are given more time to consider and discuss the evidence and for that reason Judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. Now in this case, of course, we have quite a deal of evidence. Four plus days of evidence both in the Crown case and the defence case. There is a degree of inconsistency between witnesses. There are assessments to be made as to what you make of the accuracy, reliability, honesty of the various witnesses, and then you have the arguments that were put to you in the closing addresses of the Crown Prosecutor and counsel for the accused last Friday, which took all up close to two hours. So, there is quite a deal of material for you to consider and to discuss. So I would ask you to retire again and see whether you can reach a unanimous verdict in this trial. Thank you, ladies and gentlemen.

23 More than two hours later the jury returned with its verdict. The transcript records this exchange -

CLERK OF ARRAIGNS: Would the foreman please stand. Have the jury agreed upon a verdict according to the directions that were given?
FOREPERSON: Yes they have.
CLERK OF ARRAIGNS: How say you, is the accused John Ngati guilty or not guilty?
FOREPERSON: Guilty.
HIS HONOUR: Thank you Mr Foreman, sit down.

24 It was submitted that the jury appeared to have been confused by the directions they had been given on majority verdicts and so inappropriately disclosed their voting figures. Then, after the Black direction, one or more jurors may have gained the impression that it was inevitable that a verdict by majority would be permitted eventually and might therefore have joined in a verdict with which they did not agree.

25 Before dealing with these grounds of appeal I should mention a further matter. The first passage extracted from the summing-up is taken almost verbatim from the Criminal Trials Courts Bench Book, a publication of the Judicial Commission of New South Wales now generally available to practitioners as well as judges. Counsel informed the Court that there was a divergence of opinion among judges in the District Court about whether it was appropriate for a judge directing a jury even to mention the existence of majority verdicts until the time had arrived when it was appropriate for such a verdict to be delivered. After a good deal of hesitation, counsel for the appellant invited the Court to deal with the appeal alternatively on the wider basis that a miscarriage of justice would follow if a trial judge so much as mentioned the existence of majority verdicts before the time arrived for the delivery of such of verdict.

26 In my view there are several features of the present appeal which make it inappropriate for disposal on such a wide basis, including the late emergence of the submission, without full and considered argument, and the fact that, for reasons which will appear, the jury in the present case plainly returned a unanimous verdict.

Were the jury confused?

27 The principal contention on these grounds was that there was a miscarriage of justice because the jury were confused by the reference to a verdict by majority. Counsel referred to the judgment of this Court in R v RJS [2007] NSWCCA 241, a case in which, as in the present case, the jury delivered a verdict after they had reported having difficulty agreeing and after the consequent Black direction. The problem in RJS was that although the jury were told that they should continue to try to reach a unanimous verdict, they were at the same time told, in effect, that if they were unable to do so within quite a short time (effectively, I think, fifteen minutes) the Court would accept a verdict by majority. So the information which followed immediately upon the direction to return a unanimous verdict completely undermined it.

28 Counsel also referred to the Victorian case of R v VST [2003] VSCA 35, referred to in para [23] of RJS, in which the Victorian Court of Appeal considered it wiser for a judge sending a jury back to continue to try to reach a unanimous verdict to avoid telling them that the time at which a majority verdict might be accepted was imminent.

29 There was no such flavour in anything his Honour said to the jury in the present appeal. The jury were told a second time that the circumstances in which a majority verdict might be accepted had not yet arisen. His Honour gave no indication when, or, I think, even whether, those circumstances would arise. In my view nothing his Honour said was calculated to water down the plain instruction that a unanimous verdict was necessary. And after that, more than two hours elapsed before the jury delivered its verdict.

30 Neither do I think that the manner in which the verdict was announced assists the appellant’s case. It is correct to say, as has been submitted, that the words usually uttered after a unanimous verdict viz “so says your foreman, so say you all” were absent. Even so, the foreman affirmatively answered the question whether the jury had agreed upon a verdict “accordingly to the directions that were given”. In view of the directions that were given that could only have meant that the verdict about to be delivered was the verdict of all twelve members of the jury.

31 In my opinion this ground of appeal has not been made good. I would dismiss the appeal against conviction.

32 Before passing to the sentence, I should mention a further aspect of the trial. I have noted that his Honour in reading out the contents of the jury note informed those present how the foreman had reported that the jury were voting at that time.

33 When a judge receives a message from a jury dealing with its deliberations as a jury, two potentially conflicting principles may come into play. The first is the fundamental requirement of the administration of the criminal law that a trial and every aspect of the trial must take place in open court: R v Smith [1982] 2 NSWLR 608 at [611] per Street CJ. So the accused is entitled to know if there is a communication between the jury as a jury and the trial judge. There are exceptions to this general rule, however, and the important one for present purposes is that the deliberative processes of the jury should be and remain confidential. Counsel for the appellant said as much when he described the disclosure by the jury of voting figures as inappropriate. The principles to which I have referred are uncontroversial and because this matter does not determine the disposal of the appeal may be dealt with briefly. They and their authorities are gathered in R v Burrell [2007] NSWCCA 65 at [253] – [266].

34 Obviously his Honour was obliged, having received the note, to inform counsel and the accused of its receipt. Since the note responded to an invitation made during the summing-up and effectively requested further directions it was appropriate for counsel to be told about its context and its general tenor. Counsel had to be adequately informed of the difficulty the jury were having so that they could assist the Court by making submissions they considered appropriate. However, they did not need to know the voting figures in order to respond and, in my opinion his Honour ought not to have published those figures.

The sentence appeal

35 His Honour sentenced the appellant to imprisonment for three years and nine months, comprising a non-parole period of two years and a balance of term of one year and nine months. It was submitted that the sentence was harsh, notwithstanding that the maximum penalty for this offence is twenty years’ imprisonment and the standard non-parole period five years. It was submitted that Ms Keeley suffered only very minor injuries, not requiring any treatment. It was submitted, and may be accepted, that the appellant had no criminal record of any significance.

36 In dealing with the objective seriousness of the offence, his Honour, having referred to the victim impact statement provided by Ms Keeley, found that she and her children had been most distressed and had had to move from the Campbelltown region. That had caused upheaval to their lives in many ways, including in employment, schooling and in general social and familial relations. His Honour observed that Ms Keeley continued to endure certain psychological trauma.

37 His Honour accepted that the offence occurred fairly spontaneously and that the attackers made no attempt to disguise themselves. The appellant was motivated by whatever he understood had previously happened in relation to Ms Keeley. The evidence did not enable his Honour to find precisely what that understanding was except that the incident resulted from members of the appellant’s family taking umbrage at Ms Keeley’s remonstration with the young man. His Honour observed that it was an element of the offence that it was committed in company, but observed that an aggravating feature was constituted by the number of offenders, which exceeded the number necessary to constitute the element of “in company”. It was also an aggravating feature that the premises were broken and entered when it was known that there were people inside. There were not only Ms Keeley but four children, two of them as young as seven and eight years. The incident was most terrifying for all of them. His Honour accepted that the offender did not involve himself directly in the assault upon Ms Keeley but found that as head of the family, his presence, influence and encouragement were instrumental in the offence.

38 Having referred to the wide range of offences contemplated by the section under which the charge was brought, his Honour concluded that the offence fell below the middle of the range of objective seriousness. Accordingly, his Honour determined not to apply the standard non-parole period, but observed that it retained its place as a benchmark against which to assess the sentence.

39 None of these conclusions or findings came under attack. The general submission was that there must have been error somewhere in the sentencing process because the result was a sentence that was so long as to be above the range of available discretion. Reference was also made to the sentences imposed upon Mrs Ngati and the children. In fact Ms Ngati had pleaded guilty to the offence of assault occasioning actual bodily harm in company and had asked that an offence of entering with intent to commit an indictable offence be taken into account. She was sentenced by another judge of the District Court to imprisonment for two years with a non-parole period of one year. Twenty-five per cent discount was allowed for her plea of guilty. Mrs Ngati’s offence attracted a maximum penalty of seven years’ imprisonment.

40 His Honour noted that the two children had pleaded guilty in the Children’s Court to more minor offences and each had been placed on a twelve-month probation order.

41 His Honour concluded that no real issue of parity arose in view of the differential way in which the offences of the other members of the appellant’s family had been dealt with.

42 In my opinion there is no substance in any of the submissions made on appeal. The non-parole period, being forty per cent of the standard non-parole period, was well within his Honour’s range of sentencing discretion. So was the total term of the sentence. As to the question of disparity it seems to me that the respective sentences bear the kind of relationship one would expect them to have, given that Mrs Ngati pleaded guilty to a much less serious offence. The comparison between sentences imposed in the higher courts and in the Children’s Court is permissible, of course, though not without its difficulties, arising principally from the unique measures the Children’s Court may take in dealing with young offenders. However, it does not seem to me that the appellant has demonstrated any entitlement to a more lenient sentence on account of the sentences imposed upon his wife and children, particularly in view of the fact that if he had not been present giving his encouragement, this attack might never have happened.

43 I would grant leave to appeal against sentence but would dismiss the appeal.

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