Kingi v Police

[2024] NZHC 143

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-45

[2024] NZHC 143

BETWEEN

NGAPUAHI HURIWAKA TE PAEA KINGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 February 2024
Appearances:	J A Westgate for Appellant (via VMR) M B Brownlie for Respondent
Judgment:	12 February 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 February 2024 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KINGI v NEW ZEALAND POLICE [2024] NZHC 143 [12 February 2024]

Introduction

[1]    Ngapuahi Kingi pleaded guilty to one charge of aggravated burglary.1    On    6 September 2023 he was sentenced by Judge Harvey to two years and one month’s imprisonment.2

[2]    Mr Kingi appeals his sentence on the basis that the sentence was manifestly excessive because the Judge failed to give a sufficient discount for the defendant’s methamphetamine addiction and failed to give any discount for background cultural factors.

The facts

[3]The defendants and the victim are all associated with Black Power.

[4]    Mr Kingi and four others were at a property in Invercargill consuming alcohol. At approximately 7 pm they all travelled by car to the victim’s flat in Earn Street, Invercargill. The victim is known to the defendants.

[5]    At the victim’s flat, there was a confrontation between the victim and the defendants. CCTV footage from a dashcam of a passing motorist shows the victim standing on the footpath with four of the defendants at the front of the victim’s property. The fifth defendant was standing near the vehicle. After passing the address, the motorist looked in his rear vision mirror and saw the victim on the ground being punched by one or more of the defendants. Two gun shots were then heard approximately five seconds apart. The shots were fired by the victim and one of the defendants was shot.

[6]    During the confrontation, Mr Kingi was armed with a tomahawk with a knife attached to the handle.

1      Crimes Act 1961, s 232(1)(a) and 66. Maximum penalty: 14 years’ imprisonment.

2      R v Ngapuahi Kingi [2023] NZDC 19908.

[7]    On 22 December 2022 Police executed a search warrant at the address of one of Mr Kingi’s co-defendants. Mr Kingi was at the address and police seized a tomahawk with the knife taped to one end, from him.

District Court decision

[8]    On 12 July 2023 Judge Harvey provided a sentence indication on the charge, proposing a starting point of three years’ imprisonment. That indication was accepted and Mr Kingi was sentenced on 6 September 2023.3

[9]    In sentencing Mr Kingi, Judge Harvey said he was pleased Mr Kingi had acknowledged his major methamphetamine problem in the pre-sentence report. Judge Harvey considered this meant there was a very good chance Mr Kingi would be able to address his addiction and observed he needed to do this for the benefit of Mr Kingi’s young son.

[10]   To the indicated starting point of three years’ imprisonment, the Judge applied a discount of 25 per cent for Mr Kingi’s guilty plea, and a further five per cent to acknowledge Mr Kingi’s honesty with himself and the report writer about his methamphetamine addiction. The discount was applied to encourage Mr Kingi to continue his path to recovery.

[11]This resulted in an end sentence of two years, one month’s imprisonment.

Approach on appeal

[12]   The Court must allow an appeal against sentence if it is satisfied there was an error in the sentence, such that a different sentence should be imposed.4 In this case, Mr Kingi contends that the end sentence imposed was manifestly excessive. Whether a sentence is manifestly excessive is examined in terms of the end sentence reached, rather than the process by which it was determined.5 A court will not intervene if the

3      R v Kingi [2023] NZDC 19908.

4      Criminal Procedure 2011, s 250(2).

5      Kumar v R [2015] NZCA 460 at [81].

sentence is within a range that can be properly justified by accepted sentencing principles.6

Ground of appeal

[13]   Mr Kingi appeals his sentence on the basis that the Judge erred by giving no or insufficient credit for his methamphetamine addiction, his insight into and steps taken to address that addiction, and for background cultural factors.

Leave to appeal

[14]   The appeal was lodged out of time. However, the delay was not significant and no prejudice arose. Furthermore, there was no opposition to leave to appeal out of time being granted. Accordingly, the appellant is granted leave to appeal out of time.

Submissions

[15]   Counsel for Mr Kingi, Mr Westgate, submits that, at the very least, Mr Kingi should have a 15 per cent discount for his addiction issues and background factors in addition to the guilty plea discount.

[16]   Mr Brownlie, for the respondent, however, submits the aggravated burglary was not motivated by the appellant’s methamphetamine addiction and in the circumstances, the five per cent discount given was generous. The cultural report does not disclose cultural deprivation in the way is often the case with serious criminal offenders, and the end sentence imposed was not manifestly excessive.

Did the Judge err by giving insufficient credit for addiction issues and background factors?

[17]   The Sentencing Act 2002 requires a court to consider the particular circumstances of the offender, and the offender’s personal, family, whanau,

6      Tutangahau v R NZCA 279, [2014] 3 NZLR 482 at [32]–[36]; and Te Aho v R [2013] NZCA 47 at [30].

community and cultural background.7 As the Supreme Court explained in Berkland, understanding an offender’s background allows a court to tailor the sentence to the offender. It is part of what the Supreme Court called “individualised justice” where sentencing decisions reflect a careful evaluation of the circumstances of the offending and the offender.8

[18]   There may be factors in a person’s background which reduce an offender’s culpability or blameworthiness for what that offender has done.9 To be recognised in the end sentence, there must be a link between an offender’s background and the offending.10 The stronger the link, the more impact those factors will have in the final sentence imposed. The Supreme Court has said that “operative or proximate” causes of offending are likely to be “a potent sentencing factor”.11

Alcohol and drug use

[19]   Prior to sentencing, a Drug and Alcohol report was prepared by a specialist assessor. In it Mr Kingi discloses early exposure to alcohol, cannabis and methamphetamine. He claims to have used cannabis daily from the age of 12. However, he states that methamphetamine, which he has used frequently since age 12, is the main issue in terms of drugs.

[20]   Mr Kingi also reports that he was first exposed to alcohol at age eight and began “social drinking” at age 12, which then escalated in his late teens. More recently, Mr Kingi has reported a much lower level of alcohol consumption although occasional binge drinking is still a part of his life.12

[21]   Judge Harvey applied a five per cent discount for Mr Kingi’s acknowledgment of his methamphetamine addiction and intention to address those issues. In my view, this discount was generous. There is no evidence that Mr Kingi’s addiction was an

7      See, for example, the sentencing purposes in the Sentencing Act, s 7(1)(a), (b), (e), (f), (g), and (h); the sentencing principles in s 8(a), (c), (d), (e), (h) and (i); and the aggravating and mitigating factors in s 9(1)(h), (1)(j), (2)(a), (2)(e), (2)(f), and (2)(g).

8      Berkland v R [2022] NZSC 143 at [89].

9 At [91].

10 At [109].

11 At [108].

12     Sentencing Act 2002, s 9(3).

operative factor in the commission of the offence. For example, the offending was not motivated by the need to support his dependence on methamphetamine, including to obtain property which would enable him to buy methamphetamine. While Mr Kingi had consumed alcohol and methamphetamine on the day of the offending, voluntary consumption of alcohol or drugs cannot be considered by way of mitigation.13 At best the discount appeared to reflect a generous response to a nascent indication of rehabilitative potential, albeit not directly linked to the offending in question.

Cultural and background factors

[22]   A s 27 report prepared in mid-2020 was also provided to the Court. It explains that Mr Kingi is the youngest of a large whanau and was, by his own admission, a loved but very spoilt child. He reports that his mother was a good mother but that she drank alcohol through his early childhood. However, his mother stopped drinking when he was eight or nine years old and made positive changes in her life. Mr Kingi says his stepfather “treated [him] like a king” and taught him how to fish and dive and provide for himself. However, he attacked his stepfather on a number of times to defend his mother and siblings. Counsel for Mr Kingi submits that this history of family violence is a relevant background feature.

[23]   Mr Kingi also reports feeling angry and abandoned when he was taken into CYPF’s care for a period at age 12. Mr Kingi has also attended several schools where his behaviour and academic performance was poor.

[24]   For the most part, the  s 27 report indicates  a  good relationship between    Mr Kingi and his mother as well as his mother’s partner. Certainly, the report does not indicate that Mr Kingi has suffered cultural deprivation in a manner most commonly reported by serious criminal offenders who have become completely isolated from Te Ao Māori and have subsequently become involved in gangs or crime to substitute what they lost. Indeed, his mother expresses dismay at the suggestion he was deprived, saying he had been “gifted a high level of matauranga (knowledge) from Te Ao Māori” and “had been given more opportunity to make something of his life … than others” but had “wasted this opportunity”.

13     Sentencing Act 2002, s 9(3).

[25]   Mr Westgate submitted that while the offending was not directly related to a methamphetamine addiction, his drug use does explain his antisocial lifestyle which led to this offending and should have warranted a greater discount. Similarly, his exposure to violence in his childhood helps explain his willingness to perpetrate violence on others.

[26]   I acknowledge that Mr Kingi’s early exposure to violence is likely to have contributed to the normalisation of that behaviour as Mr Kingi grew up. However, he does not appear to have been the victim of family violence as is often the case. The Crown referred to the analogous case of Rushton v Police where the appellant had early exposure to family violence, a limited education, mental health issues, and disconnection with Te Ao Māori.14 In that instance, this Court applied a five per cent discount.

[27]   While I acknowledge that a modest discount perhaps could be applied  for  Mr Kingi’s background, a discount has already been applied by Judge Harvey for  Mr Kingi’s expressed willingness to address his drug addiction despite there being no demonstrated link between Mr Kingi’s methamphetamine addiction and the offending. I do not consider that background factors and Mr Kingi’s tentative steps towards addressing his methamphetamine use, warrant a discount materially greater than the five per cent discount given.

Result

[28]   The sentence of two years, one month imprisonment is not manifestly excessive. The available information does not suggest that a discount materially greater than five per cent should be applied for Mr Kingi’s addiction and other background factors.

[29]The appeal is dismissed.

Solicitors:

Crown Solicitor, Invercargill

Copy To:
J A Westgate, Barrister, Dunedin

14     Rushton v Police [2023] NZHC 2754 at [17].