Ng v The King

[2024] NZHC 3742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000570

[2024] NZHC 3742

BETWEEN

ADAM SINGWAY NG

Appellant

AND

THE KING

Respondent

Hearing:	2 December 2024
Counsel:	SP Dickson on instruction from OR Hintze for Appellant AR Crumley for Respondent
Judgment:	10 December 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 10 December 2024 at 2 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. SP Dickson, Auckland.

OR Hintze, Whangārei.

NG v R [2024] NZHC 3742 [10 December 2024]

The appeal

[1]    Adam Ng committed a host of offences, including possession of methamphetamine for supply, and burglary. He received a 28-month sentence of imprisonment.1 Mr Ng appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The ultimate concern is whether the sentence is manifestly excessive.3

Background

[2]Judge J M Jelaš helpfully described much of the offending at sentencing:

[3]    There are two charges of burglary. On 5 May 2021 the defendant was the driver of a motor vehicle used to commit a burglary during the early hours of the morning at Henderson High School Hockey Pavilion construction site. The associate with Mr Ng took tools to break into a shipping container. From the container, various construction tools and equipment was stolen. Mr [Ng] was a party to that offence by being the driver of the getaway vehicle.

[4]    The following month on 21 June 2021, Mr Ng again during the early hours of the morning with an unknown associate used tools to break into a shipping container at the business address of New Zealand Cuisine. From the property, boxes of frozen hot dogs were stolen valued at approximately $700.

[5]    Victims of these burglaries have completed victim impact statements. They speak of the costs that they have incurred as a result of their building tools and other items being stolen and of the stress of wondering if they are going to be the victim of further burglaries and whether their building equipment left at a construction site will be safe and for the New Zealand Cuisine victim, there is the cost of replacing items and the impact on their business which for them included stock write-offs and effects on their staffs’ bonus pay.

[6]    On 1 July 2021 police executed a search warrant at Mr Ng’s home address and it was through that search that items were recovered which resulted in the charge of receiving. There were lots of pet products located that have been previously stolen. The pet products received by Mr Ng have a value of just over $1,000.

[7]    It was in his bedroom that the drug items were found. He has accepted having  methamphetamine  in  his  possession  for  supply;  approximately  30 grams of methamphetamine was recovered. Also, in his bedroom in a small locked safe was $14,232 worth of cash, in items of clothing was another

$4,070 in cash and in an airgun hardcase was $1,650 of cash.

1      R v Ng [2024] NZDC 22246.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[8]    In his bedroom and also in a shed on the property were 200 live rounds of nine millilitre Luger ammunition (bullets).

[9]    At the time, Mr Ng explained his offending was due to his heavy dependency on methamphetamine, explaining he uses approximately one gram a day. He acknowledged his supply of others was for the purposes of funding his own addiction.

…

[11]              Mr Ng then had a period on bail, however, new offending arose in May 2023 which were driving-related offences. If those were the only offences before the Court Mr Ng would not be facing an imprisonment sentence. They would have been resolved by way of disqualifications, fines or community work.

[12]              The most recent offence occurred while Mr Ng was on bail back to his home address. A further search warrant was executed at his home address on 1 February 2023. In the garage various precursor substances were located, consistent with an intent to manufacture methamphetamine. They included 610 millilitres of hypophosphorous acid and 6,270 grams of iodine found in three glass bottles.

[3]The “driving-related offences” referred to by the Judge are captured by

Ms Crumley’s written submissions on behalf of the Crown:

3.9On 20 May 2023, Mr Ng was the driver of a white Mitsubishi Canter Truck in Glen Eden. At the time, Mr Ng had a warrant for his arrest. Police observed Mr Ng driving into Adam Sunde Place in Glen Eden which is a dead-end street. Using multiple vehicles, police blocked the road in order to prevent Mr Ng from fleeing. A police officer approached Mr Ng and demanded he get out of his vehicle. Mr Ng accelerated toward the officer and crashed into a parked Toyota Corolla. The crash caused extensive damage to the parked Corolla and shunted it out of the way enabling Mr Ng to drive back onto Glengarry Road.

3.10Police drove directly behind Mr Ng on Glengarry Road and activated their red and blue lights and sirens, signalling him to stop. Mr Ng failed to stop and continued driving through West Auckland while being pursued by Police. While driving on Millbrook Road in Henderson, Mr Ng drove through a red light at approximately 40kph, turning left onto View Road. Mr Ng was followed to Lincoln Road where he drove through another red light at the same speed. At the time of the incident, numerous members of the public were using the road. By this stage, the wheels of Mr Ng’s truck had been spiked.  Mr Ng continued driving onto State Highway 16. Mr Ng drove toward the city on rims, losing control and traction. Mr Ng drove on the Point Chevalier off-ramp and crashed his truck into the barrier of the motorway.

3.11Mr Ng ran from the truck and jumped over the barrier, where he was apprehended by Police. Due to injuries sustained from the fall, Mr Ng

was transported to Auckland Hospital where a medical officer requested a blood sample. Mr Ng refused to give a blood specimen when requested.

[4]    The Judge adopted a global starting point of four years and four months’ imprisonment. Her Honour deducted 15 percent for Mr Ng’s guilty pleas, some of which were early, and some of which came later; 15 percent for personal circumstances; and eight months for time on restrictive bail conditions. As observed, this produced a sentence of 28 months’ imprisonment.

A précis of Mr Ng’s case

[5]    Mr Ng does not contest the global starting point or any of its components. Rather, he contends the Judge failed to adequately discount the sentence for mitigating features. On Mr Ng’s behalf, Ms Dickson contends the sentence should have been  24 months’ imprisonment or less, in turn raising the prospect of home detention.    Ms Dickson argues the latter should now be imposed to facilitate Mr Ng’s rehabilitation.

Analysis

Restorative justice

[6]    Mr Ng offered to participate in a restorative justice conference, but nothing came of this. Ms Dickson argues a five percent discount should have been given to reflect Mr Ng’s preparedness to do so. No such request appears to have been made of Judge Jelaš, perhaps because Ms Dickson did not act for Mr Ng at sentencing.

[7]An identical issue confronted Powell J in Harris v Police, who said:4

[12]      A sentencing court is required, under s 9(2)(f) of the Sentencing Act 2002 to take into account remorse shown by an offender “or anything else described in s 10”. Section 10(1)(a) provides that the Court must take into account any offer on the part of an offender to make amends. Accordingly, sentencing judges often give credit for a willingness on behalf of the offender to participate in restorative justice if it indicates an expression of remorse.

[13]      Restorative justice is a process that is designed to redress the harm done to victims, hold the offender to account and engage the community in

4      Harris v Police [2019] NZHC 3044 (footnotes omitted).

the development of programmes or strategies to prevent further offending. There is no dispute Mr Harris was willing to participate in a restorative justice conference however the victims declined to as they were entitled to do. As noted by the learned authors of Adams on Criminal Law however, since the Criminal Procedure Act 2011 now allows for involvement in the restorative justice process as a matter of course, a willingness to participate in a restorative justice conference that does not proceed may, of itself, mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his or her offending and wishes, in a meaningful way, to atone for it.

[14]      In this case it is difficult to place much weight on Mr Harris’ offer to engage in restorative justice given the nature of the offences to which he had pleaded guilty. Specifically, it is apparent that few of the charges lent themselves to any form of restorative justice at all. The charges for possession of pipe or utensils, possession of a knife, obstructing Police, breaching supervision and breaching community work were clearly entirely inappropriate for restorative justice. Likewise, the fact that the male assaults female charge was committed against his partner with whom he so much wanted to be with that he breached his bail conditions (with the feelings apparently reciprocated) also casts doubt on whether any offer to undergo restorative justice was genuine and/or deserving of any discrete credit.

[15]      This leaves the various theft charges. With one exception, these related to shoplifting from commercial stores: Torpedo 7, Kathmandu and Rebel Sport. Given the nature of these victims it is not surprising that they were not interested in restorative justice, and Mr Harris would be likely to be aware of this fact.

[16]      In any event the offer to attend restorative justice was not matched by any other offer of amends for the purposes of s 10(1) of the Sentencing Act. In such circumstances, and noting that Mr Harris’ shoplifting continued notwithstanding the initial filing of charges, there must be significant doubt that any offer to participate in restorative justice was genuine. As Judge Dawson noted at sentence when His Honour acknowledged Mr Harris’ expression of remorse:

You have expressed your remorse through your letter, but given your ongoing persistent offending you need to be considered on your record, rather than what you say you are going to do at sentencing. It sounds a little hollow when you just keep offending in the same way. You need to show that you can do what you say you want to.

[17]      In the circumstances and notwithstanding Judge Dawson did not specifically refer to Mr Harris’ offer to participate in restorative justice, I do not consider any form of discrete discount was warranted for Mr Harris’ offer to participate in restorative justice.

[8]    Powell J’s remarks also apply here. There is nothing tangible beyond Mr Ng’s letter of remorse (and like statements in his cultural report) to suggest Mr Ng is truly remorseful, particularly given he committed nine of his 10 offences while he was on bail.

Health

[9]Mr Ng gave the Judge a short letter from his doctor, which reads:

I am [Mr Ng’s] family doctor. I have known [Mr Ng] for 18 years. He has always been polite and courteous to me. He suffers from an anxiety disorder, panic attacks and depression. His anxiety has gotten worse since being placed in jail. Unfortunately, his medical problems have led him into self-medicating with illegal drugs.

My concern is that if [Mr Ng] is incarcerated in jail for an extended period, his mental health will further deteriorate and he could become suicidal.

I therefore request that the court show some leniency and mercy in [Mr Ng’s] case and avoid sending him to prison for an extended period.

[10]   Ms Dickson contends the Judge should have deducted 10 percent for Mr Ng’s difficulties, noting a larger deduction was allowed in Zheng v R.5

[11]   A convenient statement of principle appears in Adams on Criminal Law — Sentencing:6

In M (CA91/12) v R [2013] NZCA 325 at [54] the Court of Appeal noted that the extent to which age and ill-health can mitigate sentence depends on the circumstances of the offence and the offender. There is no discernible pattern to the reductions in sentence because of the variation in circumstances. It emphasised that any reduction should be “limited”. In that case a reduction of two years on an effective sentence of 16 years’ imprisonment imposed on a 78-year-old offender who was in poor health was held to be adequate to recognise his age and ill-health. Similarly, in C (CA100/16) v R [2017] NZCA 58 at [22], a 16-year sentence was reduced by two years. Were the appellant to serve the full term of the imprisonment imposed, that would consume the whole of his likely remaining life. In KHP v R [2015] NZHC 452, a two-and- a-half year starting point was reduced by three months on account of advancing years (85) and associated infirmities.

[12]   The material to support a deduction is both unsworn and terse. These concerns aside, a deduction would not typically follow from the matters identified by Mr Ng’s doctor. The pre-eminent concern is risk of suicide. Sadly, such a risk is not uncommon in the prison population, and obviously, the Department of Corrections has an obligation to manage that risk. So, prisoners are sometimes housed in special cells, put under watch, or both, for just this reason. The issue is conventionally addressed as a matter of penal administration.

5      Zheng v R [2015] NZCA 451.

6      Adams on Criminal Law — Sentencing (looseleaf ed, Thomson Reuters) at [SA9.17].

[13]   Cases giving rise to a sentencing discount tend to involve unusual or exceptional phenomena, particular to the defendant, so that he or she suffers disproportionately severely in  prison.  The  cited  case  of  Zheng  is  illustrative.  Ms Zheng had various medical conditions, which affected her health. She spoke little English. She suffered poor mental health and was the sole caregiver for her two adolescent children. The Court of Appeal received uncontested evidence from a clinical psychologist that Ms Zheng was suffering more in prison “than the average offender” because of her various afflictions.7

[14]No like evidence exists here.

The Salvation Army Bridge Programme

[15]   Mr  Ng  was  admitted  to  the  Salvation  Army  Bridge  Programme  on     27 June 2022. He was asked to leave that programme 14 July 2022. Ms Dickson contends “a small discount of five percent would be appropriate to reflect this”.     Ms Dickson argued Mr Ng was asked to leave only because he failed to comply with Covid-19 protocols.

[16]   That submission is a little narrow. The Salvation Army’s two-page treatment summary form in relation to Mr Ng says:8

[Mr Ng], in general, had trouble complying with Salvation Army rules. While he continually sought clarification on what the rules were, his compliance with them did not seem to change while he was here.

[17]   The form (later) adds:

[Mr Ng] was discharged 14/07/22 for failing to follow our COVID, security and visitor rules.

On the evening of Wednesday 13th July [Mr Ng] had visitors arrived, outside of visiting times and without booking a visit. He got into their car while not wearing a mask and was also seen on CCTV rummaging through the boot of the vehicle. This was a breach of the Bridge’s security, visitor and COVID rules.

On Sunday 10th July a separate incident involved [Mr Ng] refusing to stay at Ewington Avenue until CCTV footage had been reviewed to determine

7      Zheng v R, above n 5, at [71].

8      The respondent offered this form, without objection at the hearing, to address the submission.

whether he had been a close contact of a fellow resident who had tested positive for COVID while he was there. This was a breach of Bridge COVID rules.

Also on Sunday 10th July [Mr Ng] had also been asked to stay at the Ewington site because he had attended A&E over the weekend and his discharge papers from A&E, along with the new medication prescription, needed to be reviewed. He left Ewington with the rest of the Waitakere residents to return to Waitakere. He did not notify Ewington he was leaving, and he did not inform Waitakere RSW that he had been asked to stay. He did not wear a mask in the van. This is a breach of the Bridge’s COVID rules.

[18]   Given all this, the Judge cannot be faulted for not discounting the sentence on the basis of Mr Ng’s relatively short stay in the programme.

Drug dependency

[19]   The Judge accepted Mr Ng’s offending “was significantly driven by his ongoing struggle with his dependency on substances”.9 The Judge mitigated the global starting point by 15 percent for Mr Ng’s personal circumstances, including drug dependency. Ms Dickson contends this level of discount was inadequate given the Judge’s finding.

[20]   In Zhang v R, a Full Court of the Court of Appeal held drug addiction may permit a deduction of up to 30 percent of the starting point, depending on the extent to which addiction mitigates culpability.10

[21]   The Judge’s conclusion appears somewhat at odds with the level of deduction; her Honour’s reference to “dependency” rather than addiction does not appear to have been intended to connote something lesser (or other) than addiction. And, the Judge did not explain why  she  settled  upon  15  percent.  It  follows  there  is  force  in Ms Dickson’s submission this aspect involved error. This is not the end of the inquiry, however. The ultimate question is whether the sentence is manifestly excessive. Three points suggest otherwise.

[22]   First, and as will be recalled, Mr Ng received an eight-month discount for time on electronically monitored bail. But, as Ms Crumley observes:

9      R v Ng, above n 1, at [1] (emphasis added).

10     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].

5.2… Mr Ng’s compliance whilst on bail was abysmal; nine of the 10 charges Mr Ng faced arose whilst he was on bail simpliciter.

5.3Mr Ng was on EM bail for a total of 321 days. Mr Ng breached his EM bail on six occasions. The breach that resulted in his remand in custody related to Mr Ng testing positive for the presence of methamphetamine. Given the charges that arose while Mr Ng was subject to bail simpliciter, and the number of breaches of EM bail, an eight month imprisonment discount was generous in the circumstances.

[23]   Section 9(3A)(c) of the Sentencing Act 2002 identifies, as a mandatory consideration in this context, “the offender’s compliance with … bail conditions during the period with an EM condition”.11 The fact of six breaches of electronically monitored bail should have operated to constrain the level of discount and, depending on their severity, might have offset it altogether.

[24]   Second, the Judge did not impose any additional prison time for the driving offending outlined at [3], despite its seriousness.

[25]   Third, additional consideration appears to have been given to Mr Ng’s drug dependency in setting the starting point.   The Judge adopted a starting point of     two years and six months’ imprisonment for the charge of possession of methamphetamine for supply. That starting point “acknowledg[ed] the purpose for which [Mr Ng] had the methamphetamine in his possession acknowledging Mr Ng’s dependency on the substance”.12 It is difficult to discern from that statement the extent of the consideration given. However, it is apparent the Judge acknowledged the relevance of Mr Ng’s drug dependency throughout the sentencing process.

[26]   So, while the Judge arguably erred in relation to  the level  of discount for  Mr Ng’s drug addiction, that for time on electronically monitored bail was generous, as was the approach in relation to the driving offending. In terms of the statute, no “different” sentence is, therefore, called for assuming (without deciding) the Judge erred in relation to addiction as a mitigating factor.

11     Emphasis added.

12     R v Ng, above n 1, at [15].

Result

[27]   The appeal is dismissed.

……………………………..

Downs J