R v Ngati

[2012] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:	R v Ngati [2012] NSWDC 258
Hearing dates:	5 October 2012
Decision date:	05 October 2012
Before:	Berman SC DCJ
Decision:	For the offence of driving dangerously and not stopping during a police pursuit I set a fixed term of imprisonment of one year. For the offence of break enter and steal, the offender is sentenced to imprisonment. I set a non-parole period of eighteen months. I set an eligibility for parole in that matter of two years.
Catchwords:	CRIMINAL LAW - Sentence - Break enter and steal - Drive manner dangerous - Failing to stop during police pursuit - Significant criminal history - On bail at time of commission of this offence
Category:	Sentence
Parties:	The Crown Johnny Ngati
Representation:	Mr A Evers - Offender Director of Public Prosecutions
File Number(s):	2011/304308

SENTENCE

1. HIS HONOUR: On 31 July this year the trial of Johnny Ngati commenced. He pleaded not guilty to two counts on an indictment, the first alleging that he was guilty of an offence of aggravated break, enter and steal and the second alleged that he had failed to stop and driven dangerously while being pursued by police.

1. The Crown opened and evidence was called for a day and a half. After morning tea on the second day of the trial a change of attitude was foreshadowed. Mr Evers on the part of Mr Ngati suggested that his client would plead guilty to the non-aggravated form of count 1 and guilty to count 2. The Crown Prosecutor obtained approval to have the indictment amended by the insertion of an alternative count to count 1. Mr Ngati pleaded guilty to that as well as the driving offence and the Crown accepted those pleas of guilty in full satisfaction of the indictment. The jury was then discharged having had a day and a half of their time wasted. I say wasted because the Crown was never going to be able to prove count 1 in the way in which it was particularised on the indictment and the chances of Mr Ngati escaping conviction on the driving offence, given the evidence was mounting up against him, were very slim indeed. Thus it was entirely appropriate for the pleas of guilty to be entered in the circumstances I have outlined.

1. What is disappointing, however, is that this was not done some time earlier. It is accepted by Mr Evers that these were very late pleas of guilty. It is accepted that he could have pleaded guilty to the non-aggravated form of the offence of break, enter and steal at any time. I will therefore reduce the sentence that I would otherwise impose on Mr Ngati by a relatively small amount. Nevertheless there will be a discount to reflect the utilitarian value, small though it was, of Mr Ngati's pleas.

1. It is now my task to sentence Mr Ngati for the offences to which he has pleaded guilty. On 21 September 2011 in the early hours of the morning security camera footage at the Coles Illawong store recorded two men breaking into the premises and then using crowbars to open locked cabinets in which cigarettes were stored. One of the men was carrying a doona cover and both of them acted quickly placing large numbers of cigarettes, about $14,000 worth, into the doona cover before carrying it away. The two men were Daniel Sirol and Peter Ofo. They carried the stolen cigarettes to a Nissan Pintara motor vehicle driven by the offender.

1. The alarm had been raised whilst the two men were still in the store and large numbers of police responded. One police officer who was driving towards the Coles supermarket saw the Nissan Pintara. It aroused his suspicions and so he motioned for the driver to stop. He used his flashing lights and his siren and he used hand gestures as well to indicate to the driver that he wanted the vehicle to be brought to a halt. Instead the offender drove off and what followed thereafter was a sixty-five minute pursuit in which the offender drove, at times, highly dangerously. At some stages he was driving at or even below the speed limit but at other times he drove at a grossly excessive speed, on one occasion 165 kilometres an hour. In the course of attempting to evade the police pursuit he drove through seven red traffic lights. A map was tendered in the course of the trial indicating the length of the journey that the offender undertook with the police in pursuit of him. He drove through many suburbs risking the lives and safety of many people as he did so.

1. Eventually the offender drove his vehicle into a dead end street. The police following him realised that he was cornered. Once the offender too realised his mistake he tied to get away by ramming the vehicle he was driving into a police vehicle blocking his path. When that failed he reversed his car, ramming another police vehicle which had pulled up behind him. It was at that stage that the offenders were arrested. There were the two who had gone into the store and the offender who had performed the role unsuccessfully, it turns out as a getaway driver.

1. Many people appearing for sentence in these courts have difficult upbringings. We have an extreme example in the case of Mr Ngati. As people grow up they model their behaviour on what they see. Many people are brought up with good role models and therefore find it relatively easy to perform as valuable members of society. Mr Ngati did not have that opportunity. As he grew up he was exposed to a lifestyle where committing crimes was commonplace, as was acting violently. His parents had a large number of children, fourteen in fact. Mr Ngati was brought up by his grandparents. His contact with his parents was quite limited but when it did occur it was hardly to Mr Ngati's benefit. For example, when he saw his father he would usually be physically abusive towards him - as Mr Ngati told a psychologist, his father would beat him up pretty badly.

1. On top of that he had the example of behaviour carried out by his older siblings. They too modelled criminality and violence towards him throughout his young life. He came to believe that the way they behaved, committing regular crimes, was normal. When he saw them with money from one of their criminal enterprises he thought that was something to aspire to. A good example of the extent to which Mr Ngati was subject to bad role models through his siblings as he grew up is to be found in the circumstance that at present six of his siblings are currently in custody.

1. Mr Ngati did not have the same chances in life that most others in the community had. His decision, (and he accepts that it was his decision to begin and continue to commit crimes) has to be looked at in that light. He has a criminal history, quite a significant one for someone only twenty years of age. He has spent time in juvenile detention. He was only able to remain free in the community for a few months before committing this offence. This is his first time in adult gaol. It is no doubt a salutary experience for him.

1. He has been able to complete Year 10 whilst in detention and has worked at times in the past but he has not had much stability in his life at any time. He was in a relationship and had children. He says that one of the factors that led to him going downhill leading up to the offences I have got to sentence him for was that DOCS took his daughter away from him. That, he says, was the commencement of a period where he began using heroin, a drug he says he was affected by when he committed these offences.

1. He was on bail at the time he committed these offences, for an offence of assault occasioning actual bodily harm. He has since been sentenced for that matter and is in fact currently serving that sentence. The non-parole period will expire on 29 October 2012.

1. I discussed with Mr Evers the appropriate starting date for the sentences I am to impose upon Mr Ngati. I have decided that will be 30 April this year, applying the principle of totality which requires that I look at the overall effective sentence for the two offences I must sentence Mr Ngati for and the offences he is currently serving a sentence for. The principle of totality is important of course and for that reason I will partially accumulate the sentences that I will impose upon Mr Ngati.

1. Mr Ngati gave evidence. It is the sort of evidence I have heard many times before but not usually from someone as young as Mr Ngati. Often, offenders appear before me having spent a large proportion of their lives in custody and finally it seems they have realised the futility of the way they have lived their lives up until then. They finally recognise that by spending a life in custody simple pleasures which should be enjoyed by everyone are denied them. Mr Ngati gave evidence that he, even at the relatively youthful age of twenty, realises what he is missing by being in custody. Notwithstanding the bad role models he has had, he gave evidence that he understands he is missing out on many enjoyable parts of life through spending his time in custody.

1. Moreover Mr Ngati gave evidence about what he needs to do to stay out of trouble. He appeared to me to be genuine in what he said. But of course things are not going to be easy for Mr Ngati. He has a substantial way to go. It is primarily for that reason that I will make a finding of special circumstances in the offender's favour. Of course there are other reasons for special circumstances, in particular a mathematical one relating to the fact that these sentences will be accumulated on the sentence imposed in the Local Court.

1. Although Mr Ngati is twenty now, he was only nineteen at the time of these offences. Although the law draws a bright line between offences committed when an offender is under eighteen and those committed when the offender is over eighteen, there is no bright line as far as maturity is concerned. Mr Ngati was very much a young man when he committed these offences. He did not have the maturity that an adult would have. That is very much a matter in his favour.

1. I turn now to an issue I have not yet mentioned which concerns the issue of parity. Mr Cyril and Mr Offo were both sentenced by Judge Garling. The Crown appropriately provided me with Judge Garling's remarks on sentence and the criminal histories of both Mr Cyril and Mr Offo. Mr Cyril in fact had no criminal history. Mr Offo's criminal history was not quite as bad as that of Mr Ngati. It is important to note, when the sentence that I am about to impose upon Mr Ngati is compared with the sentences imposed on Mr Cyril and Mr Offo, that they both received a twenty-five per cent discount for pleading guilty, but that was for the aggravated form of the offence which carried with it a higher maximum penalty. I have fashioned a sentence in order to ensure that Mr Ngati does not have a justifiable sense of grievance when he compares the sentences I will impose upon him with the sentences imposed upon his co-offenders.

1. It remains the case that these two offences were serious. As I mentioned during the course of describing the offender's manner of driving, significant numbers of people were put at risk. I make that finding simply because of the length over which the pursuit took place and the way in which the offender drove during the course of that pursuit. Large numbers of police were chasing him and the pursuit only came to an end after the offender trapped himself in a dead end street, but even after that he continued to drive dangerously ramming two police cars in attempt to get away. To say that his driving was seriously criminal is something of an understatement.

1. The break enter and steal offence is also serious. He was part of a scheme which involved significant intrusion to the legitimate property rights of the supermarket in which cigarettes were taken. It is a fundamental rule in sentencing that the objective gravity of a crime must be reflected in the sentencing imposed. That fundamental rule is a significant constraint on the leniency that I can offer the offender. I sentence Mr Ngati as follows.

1. For the offence of driving dangerously and not stopping during a police pursuit I set a fixed term of imprisonment of one year to date from 30 April 2012. For the offence of break enter and steal, the offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 30 December 2012. It will expire on 29 June 2014 that is the first day in which the offender is eligible to be released to parole. I set an eligibility for parole in that matter of two years. Thus the overall sentence consists of an effective non-parole period of two years and two months to date from 30 April 2012 an overall term of four years and two months. The offender is disqualified from driving for a period of twelve months from today.

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Decision last updated: 01 March 2013