Ngamoki v Police - [2023] NZHC 2813

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-34

[2023] NZHC 2813

BETWEEN
RANGITUATATA MAAKA TU NGAMOKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 October 2023

Appearances:

C M Andersen for the Appellant

M E A Brosnan for the Respondent

Judgment:

6 October 2023

JUDGMENT OF HARLAND J

Introduction

[1] This appeal, which the Crown opposes, initially concerned the correct calculation of the sentence of 25 months’ imprisonment imposed on Rangituatata Ngamoki in the Alexandra District Court on 20 February 2023.1 Having considered Crown counsel’s submissions however, Ms Andersen, on behalf of Mr Ngamoki, accepted that the Judge’s methodology for calculating the end sentence he imposed accorded with the methodology now required as a result of Moses v R.2

[2] At the hearing, however, Ms Andersen advanced two further submissions in support of Mr Ngamoki’s appeal justifying the result which she had initially contended, namely that this Court should allow the appeal and impose an end sentence of either 24 or 23 months’ imprisonment.

1 New Zealand Police v Ngamoki [2023] NZDC 3282.
2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

NGAMOKI v POLICE [2023] NZHC 2813 [6 October 2023]

[3] Ms Andersen challenged the amount of the uplift the Judge awarded to reflect Mr Ngamoki’s previous offending, and she invited me to follow the approach in Reweti v R,3 which held cases that result in an end sentence on the cusp of home detention may require an adjustment if they plainly call for a merciful approach.4

[4] Ms Brosnan for the Crown maintained that the overall sentence was not manifestly excessive and therefore the appeal ought to be dismissed.

Background

[5] In order to provide a context to Ms Andersen’s submissions, I now briefly outline the background to the charges.

[6] Mr Ngamoki was sentenced by Judge Robinson in respect of charges of intentional damage on 23 December 2021, theft of a donation box on 13 March 2020, and two charges of burglary, a charge of threatening to kill, aggravated assault and resisting Police on 19 March 2022.

[7] The facts were outlined in paras [4]–[9] of Judge Robinson’s decision. In summary, the charge of intentional damage relates to Mr Ngamoki punching a glass panel and breaking it, while heavily intoxicated, when he was asked to leave a hotel in Dunedin. The theft of the donation box relates to Mr Ngamoki taking a donation box owned by St John from a motel reception area in Haast.

[8] The lead and most serious charges concern what happened in Cromwell in the early hours of the morning on 19 March 2022 when Mr Ngamoki entered a block of residential flats in Cromwell rented by polytechnic students. Having been asked to leave one of the flats, Mr Ngamoki entered another where a young woman was asleep in bed. He watched her sleep before she awoke to find him standing over her. Before he left that…

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 Ngamoki v Police

Details

AGLC: Ngamoki v Police [2023] NZHC 2813
Case: [2023] NZHC 2813
Decision Date: 6 October 2023

CaseChat Overview and Summary

Rangituatata Ngamoki appealed against the sentence of 25 months' imprisonment imposed by the Alexandra District Court, contending the sentence was excessive. The Crown opposed the appeal. The primary issue was whether the uplift for previous convictions was proportionate, and whether the sentence was manifestly excessive. The court noted that the uplift of 15% resulted in a total sentence of 25 months. Ms Andersen argued that the uplift should have been 10%, resulting in a sentence of 23.25 months. The Crown maintained that the sentence was within the available range and not manifestly excessive. The court found that while the uplift was near the upper end of the range, it was still within the Judge's discretion. The court also found that rounding the uplift and discounts to 24 months would not be appropriate as the sentence was not on the cusp of home detention. The appeal was dismissed, and the original sentence was upheld.

The court dismissed the appeal and upheld the sentence of 25 months' imprisonment.

Orders