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Metua v R

Metua v R

Case [2018] NZHC 246 26 February 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000474

[2018] NZHC 246

BETWEEN
NGATUAINE METUA

Appellant

AND

THE QUEEN

Respondent

Hearing: 5 February 2018

Appearances:

J M Scott for the Appellant

J E L Carruthers for the Respondent

Judgment:

26 February 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 26 February 2018 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
MOJ Public Defence Service, Auckland Crown Law, Wellington

NGATUAINE METUA v R [2018] NZHC 246 [26 February 2018]

[1] Ngatuine Metua pleaded guilty to one charge of doing an indecent act on a child.1 He was sentenced to a term of eight months’ imprisonment by Judge Thomas in the Auckland District Court on 19 December 2017.2

[2]Mr Metua now appeals his sentence.

Factual background

[3] The offending occurred after Mr Metua, then 65 years old, had spent the afternoon drinking with others in a friend’s garage. In the early evening, Mr Metua went into the hallway of the house. He saw the 10-year-old complainant, whom he knew, in the lounge. He called her over to him, hugged her tightly, and told her to wait in the hallway while he used the bathroom.

[4] Upon his return, Mr Metua put his hands between the complainant’s legs and touched her genitals over her clothing. She asked him to stop; he did not. He told her not to tell anyone or he would go to jail.

District Court judgment

[5] Judge Thomas in the District Court sentenced Mr Metua following an earlier sentence indication.3 He took a starting point of 14 months’ imprisonment.

[6] He noted that the pre-sentence report was not “particularly favourable”, highlighting that it assessed Mr Metua’s risk of re-offending as high. However, he noted the “much more favourable” psychological report, and that it assessed Mr Metua’s risk of re-offending as much lower. He accepted prison would be harder on Mr Metua than on the ordinary prisoner due to his health, age and the fact that English is his second language. He allowed discounts for these factors, as well as for Mr Metua’s early guilty plea.

1      Crimes Act 1961, s 132(3).
2      R v Metua [2017] NZDC 29572.
3      R v Metua DC Auckland CRI-2017-004-003725, 20 July 2017.

[7] The Judge had noted in his earlier sentence indication that home detention was “less likely than prison because of the seriousness of this type of offending” but indicated that he would consider the point fully after the pre-sentence report and further submissions. 4 At sentencing he concluded that while the reports provided further background, they did not alter his earlier view that prison was the more appropriate response and the least restrictive outcome available.5

[8] The Judge imposed a final sentence of eight months’ imprisonment. Mr Metua automatically became a registrable offender under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 as a result of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metua v R

Details

AGLC: Metua v R [2018] NZHC 246
Case: [2018] NZHC 246
Decision Date: 26 February 2018

CaseChat Overview and Summary

The appeal before the High Court was brought by Ngatuine Metua against his sentence for indecently assaulting a child. The District Court had sentenced Mr Metua to eight months' imprisonment. He appealed on the basis that the District Court had failed to sufficiently consider the option of home detention. The High Court found that the District Court had erred in its approach by not giving sufficient consideration to home detention as an appropriate sentence for the offence. The Court found that the District Court failed to adequately weigh the relevant factors, including the low risk of reoffending, Mr Metua's age and health, and his rehabilitative needs. The High Court concluded that a sentence of home detention would have been appropriate, and quashed the District Court's sentence of imprisonment. The High Court imposed a sentence of four months' home detention, with standard and special conditions.

The High Court found that the District Court had not erred in its assessment of the pre-sentence report or the effect of the offending on the victim. The Court also found that the District Court had not erred in not considering mandatory registration on the Child Sex Offender Register as an additional punitive element. The Court noted that Mr Metua did not meet the threshold of risk required for a discretionary order for non-custodial sentencing. The High Court concluded that the District Court's sentence was manifestly excessive and that home detention was the appropriate sentence.

Orders