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 address, he took food from the kitchen.

[9]                  Mr Ngamoki then went back into the first flat, accused the occupants of narking and threatened them, saying that he would pull a knife and that he was a member of a

3      Reweti v R [2018] NZHC 809 at [24] referred to in Moses v R, above n 2, at [39].

4      Moses v R, above n 2, at [64].

gang. Fearing for their safety, the occupants offered Mr Ngamoki alcohol in an attempt to have him leave the premises.

[10]              The Police were called. Mr Ngamoki was aggressive, threatened to hunt a Police officer down and shoot him, and made threats to kill on multiple occasions. He lashed out at the Police, kicking another constable in the head, causing the officer to lose balance. He was aggressive and hostile towards the Police as they attempted to arrest him.

[11]              The Judge referred to Mr Ngamoki’s criminal history, observing that at the age of 27 he had already amassed an extensive history involving multiple convictions for dishonesty, burglary and violence.

[12]He then referred to the pre-sentence report and said:

[13]                The pre-sentence report is troubling, to say the least. You are assessed at moderate to high risk of offending, based on what is described as your total contempt for the judicial system, your refusal to engage with Probation, and your history of offending. The risk of harm to others is assessed as moderate, and I suspect it will only increase if you fail to engage in rehabilitation.

[13]             With reference to the s 27 report that had been prepared for Mr Ngamoki, the Judge noted that Mr Ngamoki’s background was somewhat unusual because he had experienced a positive upbringing with a degree of parental support. The Judge noted the fact that Mr Ngamoki’s siblings had achieved well and he observed that there was no history of inter-generational offending or trauma. The Judge however noted that Mr Ngamoki had been identified as having an undiagnosed attention deficit disorder and alcohol addiction issues.

[14]             The Judge’s calculation of the starting point, and the uplift and discounts he applied are set out in the following table:

Starting point

Starting point for two burglary charges – 24 months’ imprisonment

Uplift for aggravated assault, threatening to kill and resisting police charges – six months’

imprisonment

Global starting point of 31 months’ imprisonment

Uplift for charges of intentional damage and theft

– one month’s imprisonment

Personal factors

Uplift for previous convictions of dishonesty offending, burglary and violence – 15 per cent Discount for guilty pleas – 25 per cent Discount for alcohol and drug addiction and ADHD – 10 per cent

Total discount of 20 per cent

(25 + 10 – 15)

End sentence

31 months – 20 per cent

24.8 months’ imprisonment (rounded to 25 months’

imprisonment)

The appeal

[15]             The principles applicable on appeal are well known and need not be repeated. The Court must allow an appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.5 Otherwise, the Court must dismiss the appeal.6 An appeal court should not intervene where the sentence imposed is within an available range. However, it can substitute its own view if the sentence under appeal is manifestly excessive or one that cannot be justified on the application of relevant sentencing principles.7

Discussion

[16]             As can be seen, the Judge applied an uplift of 15 per cent to reflect Mr Ngamoki’s previous convictions for dishonesty offending, burglary and violence. Ms Andersen submitted that 15 per cent was disproportionate and the uplift ought to have amounted to 10 per cent.

[17]             Mr Ngamoki has an extensive criminal record. Recent convictions include taking documents for a pecuniary advantage (two convictions), unlawfully being in a yard, shoplifting, theft, wilful damage (four), burglary (eight), assault (four) and threatening to kill (three), although some of these convictions occurred after some of the offending Mr Ngamoki was presently charged with. In respect of these

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

6      Section 250(3).

7      Tutakangahau v R [2014] NZCA 279 at [36]; and Ripia v R [2011] NZCA 101 at [15].

convictions, Mr Ngamoki has mostly been sentenced to non-custodial sentences, but he was sentenced to eight months’ imprisonment to be served concurrently with two charges of burglary for offending on 24 January 2016, one month’s imprisonment for offending on 6 July 2015, and six months’ imprisonment for a charge of threatening to kill for offending on 20 December 2016. He also has served periods of home detention for charges of wilful damage, assault and threatening to kill. Mr Ngamoki also has six convictions for breaching sentences, which Ms Brosnan suggests means that the sentences imposed did not have the necessary deterrence or accountability impact.

[18]             If the 10 per cent uplift is applied, Ms Andersen submitted that this would take the end sentence, applying the Moses methodology, to one of 23.25 months’ imprisonment.

[19]             Ms Brosnan in response characterised the uplift as stern but not out of range. She also submitted that the starting point adopted by the Judge was generous to Mr Ngamoki given that there were two burglaries involved. She submitted that the range available to the Judge could well have been more than 25 months’ imprisonment. Ms Brosnan also notes that Mr Ngamoki was subject to a sentence of supervision and community work when the present offending occurred (other than the theft charge), which could further justify an uplift,8 although caution needs to be taken to avoid double counting.

[20]             Overall, Ms Brosnan submitted that the sentence was not manifestly excessive and that to interfere with it, particularly if there was a difference between 1 to 1.5 months’ imprisonment, would be tinkering.

[21]             Uplifts for previous convictions must be proportionate to the sentence imposed for the previous offending and the sentence for the present offending.9 An uplift is unlikely to be proportionate if it exceeds the prior sentence, including where the prior sentence was less than a sentence of imprisonment.10 Here, the uplift of 15 per cent

8      Sentencing Act 2002, s 9(1)(c).

9      R v Ward [1976] 1 NZLR 588 (CA) at 590; Tiplady-Koroheke v R [2012] NZCA 477 at [24]; and

Webb v R [2022] NZCA 137 at [27].

10     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41]; and Webb v R, above n 9, at [27].

of 31 months’ imprisonment is equal to 4.65 months’ imprisonment, which is roughly one third of the total sentences of imprisonment for the relevant previous convictions.

[22]             Accepting that, for an incarcerated defendant, the difference between 1 and 1.5 months of a sentence is significant, I am nonetheless not persuaded that the overall sentence can be said to be manifestly excessive. I agree with Ms Brosnan that the starting point for the burglary charges is within range but could well have been higher and there could have also been an uplift for offending while subject to sentence. I also agree that the uplift, although possibly near the upper end of the range, was nonetheless still available to the Judge.

[23]             Alternatively, Ms Andersen submitted that the calculation of uplift and mitigating matters, if the 15 per cent uplift was rounded from 4.65 months to 4 months and the 35 per cent discount was rounded from 10.85 months to 11 months, would result in an end sentence of 24 months’ imprisonment, instead of the Crown’s assessment of 24.8 months rounded to 25 months. Ms Andersen submitted this rounding down to 24 months would be appropriate as a result of Reweti v R. However, Ms Andersen accepted that no home detention address was available for Mr Ngamoki and therefore that was not a consideration for this Court. Nonetheless, she submitted that an end sentence of 24 months’ imprisonment would be the “right sentence” to be imposed as it would be categorised as a short rather than long term of imprisonment.

[24]             The District Court Judge did not round the uplift and discounts but applied them as a net percentage to the starting point. He took 20 per cent off the starting point of 31 months, which would result in an end sentence of 24.8 months’ imprisonment, which was then rounded to 25 months’ imprisonment. The Supreme Court in Su v R commented: “Whether adjustments to sentences expressed as percentages are rounded up or down when translated into actual weeks, months or years will depend on the particular circumstances of each case”.11 The Court of Appeal in Ferris-Bromley v R commented that “if the period of months does not equate exactly to the percentage, there is no failure of intent, no patent error and no basis to intervene”.12

11     Su v R [2020] NZSC 156 at [12].

12     Ferris-Bromley v R [2017] NZCA 115 at [17].

[25]             I do consider that the judgment in Reweti v R suggests a different approach should be taken. That case was cited in Moses v R as demonstrating a case where the two-step methodology, where guilty pleas are not calculated as a separate step in sentencing, was adopted when the three-stage methodology with a separate guilty plea step was predominant.13 The Court of Appeal in Moses v R noted that subsequent cases took the approach that the two-step approach in Reweti was only available where sentences were on the cusp of home detention and plainly called for a merciful approach.14 Of course, that two-step approach became the default approach after the judgment in Moses and was applied in this case. Reweti is not authority for going beyond that approach.

[26]Overall, I am not satisfied that the end sentence was manifestly excessive.

Result

[27]The appeal is dismissed.

Harland J

Solicitors:

C M Andersen, Barrister, Dunedin RPB Law / Crown Solicitor, Dunedin.

13     Moses v R, above n 2, at [39] and [41].

14 At [41].