Ngamoki v R
[2022] NZCA 171
•9 May 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA692/2021 [2022] NZCA 171 |
| BETWEEN | RIKI WIREMU NGAMOKI |
| AND | THE QUEEN |
| Hearing: | 31 March 2022 |
Court: | Gilbert, Woolford and Dunningham JJ |
Counsel: | A S Bloem for Appellant |
Judgment: | 9 May 2022 at 9 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
The appellant, Riki Ngamoki, was sentenced to six years and three months’ imprisonment for serious offending committed when he was 16 years old.[1] During his sentence, he was convicted of two further offences and sentenced to an additional 23 months’ imprisonment.[2] His counsel, Ms Bloem, argues his overall sentence of eight years and two months’ imprisonment is excessive to the point of being “crushing”. She says the Judge was wrong not to reduce the sentence to reflect the principle of totality.
[1]R v Ngamoki [2017] NZDC 7445.
[2]R v Ngamoki [2021] NZHC 2918 [High Court judgment].
In comprehensive and thoughtful submissions, Ms Bloem makes the point that such a sentence will have no real deterrence value and will almost certainly be counterproductive to her client’s prospects of rehabilitation and reintegration. We agree. Nevertheless, having regard to the relevant provisions of the Sentencing Act 2002, and to case law on the application of the totality principle, we can see no error in the Judge’s sentence.
Background
When Mr Ngamoki was 17 years old, he was sentenced on three charges of kidnapping, four charges of aggravated robbery, assault with intent to rob, escaping custody, assault with intent to injure, and unlawfully taking a motor vehicle.[3] From an overall start point of 10 years and six months’ imprisonment, the Judge afforded a 20 per cent discount for youth and a 25 per cent discount for guilty pleas. No discount was afforded for cultural factors. This led to an end sentence of six years and three months. The Judge acknowledged that, at his age, this was a long sentence for Mr Ngamoki. However, he expressed the hope Mr Ngamoki would be “given [the] opportunity to develop” while in prison and avoid further long prison sentences.[4]
[3]R v Ngamoki, above n 1.
[4]High Court judgment, above n 2, at [48].
While 20 years old, and still serving his sentence of imprisonment, Mr Ngamoki was involved in a violent group attack on two prisoners in a prison exercise yard. One man was stabbed to death in the incident, while Mr Ngamoki and others attacked the deceased man’s associate, knocking him to the ground and then repeatedly kicking him.
A few months later, when Mr Ngamoki was 21, he launched, without warning, two punches at a Corrections officer who was escorting him to his cell. It took six officers to gain control of Mr Ngamoki and, during the struggle, the Corrections officer he assaulted sustained a broken finger. The officer also suffered a laceration to his ear from the initial attack.
When sentencing Mr Ngamoki, Moore J adopted a starting point of two years for the charge of injuring with intent to injure and added a further six months for the second offence. He then increased the sentence by three months to reflect Mr Ngamoki’s criminal history.[5] From the total sentence of two years nine months’ imprisonment, the Judge applied a seven per cent discount for youth and a 10 per cent discount for late guilty pleas.[6] He also applied a 10 per cent discount for cultural factors, noting that:[7]
Mr Ngamoki experienced dislocation from his whānau, disordered parental attachments, antisocial role modelling and a dysfunctional childhood which has contributed not only to his gang affiliations, but his offending.
[5]At [41], [43] and [52].
[6]At [63] and [66].
[7]At [76] and [77].
Counsel for Mr Ngamoki provided the Court with positive references from family members and friends. While the Judge did not have evidence of successful rehabilitative endeavours before him, he considered Mr Ngamoki’s youth, and the support he had from whānau and friends, meant he had some rehabilitative prospects. A further five per cent discount was applied for that factor.[8]
[8]At [69].
Significantly, having reached an end sentence of 23 months, the Judge reminded himself he must consider the principle of totality saying, “I must not impose a sentence which may be appropriate when viewed in isolation, but is excessive to the point of being crushing when viewed in its totality.”[9] However, on that issue the Judge reached the following conclusion:[10]
The purposes and principles of sentencing have to be balanced, and while there is a need to promote rehabilitation where possible, deterrence and denunciation are also important. On my assessment and standing back and looking at the sentence in its totality, I do not consider either of the sentences to be excessive or crushing such that an adjustment for totality is needed.
Grounds of appeal
[9]At [82].
[10]At [84].
Ms Bloem focuses her arguments on the Judge’s failure to make an adjustment for totality which, she submits, should have been 12 months. While not challenging the individual discounts as inappropriate, she says they were insufficient to ensure that Mr Ngamoki’s overall sentence was not manifestly excessive. In particular, she says:
(a)Mr Ngamoki’s age at the time of sentence warranted a greater reduction for totality;
(b)the Judge erred in prioritising the principles of deterrence and denunciation over Mr Ngamoki’s rehabilitation when considering totality; and
(c)Mr Ngamoki’s cultural background warranted a further adjustment to the overall sentence when considering totality.
Appellant’s submissions
Ms Bloem commences her submissions by addressing the purpose of adjusting a sentence for totality. She cites s 85 of the Sentencing Act, which states that cumulative sentences “must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”. In her submission, integral to the totality principle is the idea of avoiding a “crushing” sentence. That is, one that destroys the expectation of a meaningful life after release.[11] She submits therefore, the principle of totality aligns with a major purpose of sentencing, being “to assist in the offender’s rehabilitation and reintegration”.[12]
Youth as a special circumstance
[11]Mariko Bagaric and Theo Alexander “Rehabilitating Totality in Sentencing: From Obscurity to Principle” (2013) 36(1) UNSWLJ 139 at 151.
[12]Sentencing Act 2002, s 7(1)(h).
In Ms Bloem’s submission, the offender’s personal circumstances, and in particular his youth, must be taken into account in determining whether an end sentence is crushing and requires a totality adjustment. Ms Bloem supports her contention by reference to R v Mead,[13] and R v Hurrell.[14]
[13]R v Mead [2019] NZHC 3065.
[14]R v Hurrell [2021] NZHC 2870.
In R v Mead, the defendant was already serving a sentence of seven years and 11 months’ imprisonment. Without an adjustment for totality, his end sentence would be 10 years and two months’ imprisonment. When considering totality, the Court observed that, at 24 years of age, the defendant was still young, and he had been in prison since he was 17 years old. Furthermore, his security classification had restricted him from accessing rehabilitative services in prison. After taking these factors into account, the Court concluded his end sentence needed to be adjusted, bringing it down to nine years and five months’ imprisonment.
In R v Hurrell, albeit in the context of a sentencing indication, the defendant was charged with a further violence offence while he was in prison and when he was 21 years of age. In that case, Moore J accepted that as the sentence would be imposed cumulatively on the existing sentence, he would need to take into account the principle of totality, particularly given Mr Hurrell’s age.
Ms Bloem submitted that while the youth discount provided to Mr Ngamoki was “arguably within range”, further consideration needed to be given to his age in light of totality. She pointed to the growing awareness of the role that an offender’s physical, emotional and cognitive development has in the judicial context, and which is increasingly reflected in how young people are treated by the criminal justice system. This was clearly acknowledged in Churchward v R, where youth was recognised as a mitigating factor.[15] But there have been a number of developments since Churchward which are designed to further accommodate the developmental immaturity of young people. These developments include the extension of the Youth Court’s jurisdiction to cover 17-year-olds and the creation of the Young Adult List, which is a recent judge-led initiative providing tailored support to those aged 18 to 25 appearing in Court. Such innovations accommodate developmental immaturity at every part of the process, not just as a mitigating factor at sentencing. Despite such developments, Ms Bloem notes there are still many young people, like Mr Ngamoki, who continue to be treated in a similar fashion to their adult counterparts. He has been exposed to adult imprisonment without any protective measures, which can cause significant harm.
[15]Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
Finally, Ms Bloem notes that a totality reduction to reflect youth serves a different purpose from a youth discount, and thus there will be no double counting. When considering youth in the context of whether it is a mitigating factor, the assessment is focused on the diminished culpability of the defendant and recognises their under-developed cognitive capacity and impulsive behaviour. In contrast, in the context of the totality principle, the consideration of youth relates to what effect an extended sentence would have on someone who is young and whether it would destroy their expectation of a meaningful life after release.
The role of denunciation and deterrence
The second ground advanced by Ms Bloem questions the Judge’s focus on deterrence and denunciation. While Ms Bloem accepts that in cases of recidivist violent offending in prison, principles of deterrence and denunciation may be prioritised, she says this need not always be the case. The underlying rationale for longer sentences assumes they are effective at deterring offenders from offending again. However, research shows that imposing long sentences can have the opposite effect, resulting in more violent offending.[16] This is particularly so where the offending is impulsive, as opposed to that which involves conscious planning, and where research indicates that youth have poorer impulse control and behaviour regulation than adults.[17]
[16]Sentencing Advisory Council Does Imprisonment Deter? A Review of the Evidence (Sentencing Advisory Council, Victoria, Australia, April 2011) at 18.
[17]Ben Johnson Do Criminal Laws Deter Crime? Deterrence Theory in Criminal Justice Policy: A Primer (Minnesota House Research Department, January 2019) at 5; and Elizabeth S Scott and Laurence Steinberg “Blaming Youth” (2003) 81(3) TexLRev 799 at 815.
Ms Bloem points out that the Courts are beginning to recognise the impact that the prison environment itself has on offending that occurs while in prison. In Vincent v R, this Court noted:[18]
We accept that the need to uphold prison discipline required a sentence of sufficient severity to act as a deterrent against conduct of this kind, but some allowance should have been made for the frustrations that inevitably arise where inmates are forced together in close quarters over lengthy periods of time with minimal periods allowed each day outside their cells.
In that case, a six-month discount was allowed to reflect that Mr Vincent had become institutionalised. Similar recognition was given to the fact that incarceration can increase the risk of further violent offending in R v Wereta,[19] and Papa v R,[20] (although in both cases, such recognition did not override the conventional view that violent offending in prison should be met with a stern response). Ms Bloem submitted however, the punitive principles of denunciation and deterrence should not overshadow the importance of rehabilitation, particularly when the offender is young and the offending impulsive.
[18]Vincent v R [2015] NZCA 201 at [64].
[19]R v Wereta [2015] NZHC 2248.
[20]Papa v R [2020] NZHC 80.
Ms Bloem also referred to research which suggests that feelings of shame or inadequacy in young people can manifest themselves in violent behaviour.[21] Many serious offenders have been emotionally or physically abused during childhood, instilling overwhelming feelings of shame, inadequacy and humiliation.[22] Violence is then used as a defence mechanism by young people who have not been taught healthy coping strategies as children.[23] Ms Bloem says the cultural report prepared under s 27 for Mr Ngamoki suggests that his violent behaviour is caused, at least in part, by longstanding feelings of shame, inadequacy and humiliation. Without meaningful intervention addressing the underlying causes of Mr Ngamoki’s violent behaviour, further imprisonment will not act as a deterrent. Instead, further punishment will likely increase feelings of humiliation and shame, thus continuing the cycle, and exacerbating violent behaviour.
[21]James Gilligan “Shame, Guilt, and Violence” (2003) 70(4) SocRes 1149 at 1168.
[22]At 1153–1154.
[23]James Gilligan “Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?” (2000) 67(3) SocRes 745 at 763–764.
Ms Bloem goes on to say this conclusion is supported by the rationale behind the District Court’s new Te Ao Mārama model. Central to that model is an acknowledgment that the District Court has overemphasised punishment at the expense of rehabilitation. It recognises that punitive approaches to offending often do not make communities safer, but actually can have the opposite effect. The prioritisation of punishment is particularly ineffective where offending is driven by external causes such as addiction, mental health issues or past trauma.
Ms Bloem says Mr Ngamoki’s cultural report talks positively about his rehabilitative prospects, and the report writer recommends that a “trauma-informed” approach is adopted in his sentencing, reflecting his need to transition back into the community where access to pro-social environments are readily available. By adjusting the sentence for totality, Mr Ngamoki would be given the opportunity to commence his rehabilitation and reintegration into society sooner, and this better protects the community and the interests of victim as required by the provisions of the Sentencing Act.
Relevance of cultural background
The third ground advanced by Ms Bloem for applying a totality reduction relates to Mr Ngamoki’s cultural background. The cultural report illustrates that Mr Ngamoki suffered from a very difficult and traumatic upbringing. He had little stability in his life growing up and experienced dislocation from his whānau, disordered parental attachments, antisocial role modelling, and a dysfunctional childhood. His gang affiliation resulted from his search for a sense of belonging, having lacked stability as a child.
Ms Bloem points out that in Mr Ngamoki’s original sentence, cultural factors were not taken into account, and in the present sentence he was afforded only a 10 per cent discount. Over the combined sentence this equates to a two per cent discount to recognise cultural factors. In Ms Bloem’s submission, the appellant’s cultural background warranted a further adjustment to the overall sentence when considering totality.
Discussion
We start by observing that no challenge is taken to any aspect of sentencing other than the refusal to adjust for totality, nor do we consider there could be. Each component of this sentence was within range. While the deduction for youth was modest, the Judge was more generous in his approach to rehabilitative potential which is, of course, a factor associated with youth. The discount for factors identified in the cultural report was also within range having regard to other cases.[24] While Ms Bloem invited us to view the discount for cultural factors over the length of the combined sentence, we do not consider that appropriate. The sentence for the earlier offending was not appealed and cannot be revisited by application of the totality principle in a subsequent sentencing exercise, as we were invited to do.
[24]In Moses v R [2020] NZCA 296, [2020] NZLR 583 a combined discount of 15 per cent was afforded for the connection between the appellant’s offending, her cultural background, and her prospects of rehabilitation. In Carroll v R [2019] NZCA 172 on a 12 year starting point for violent offending, a discount of 18 months was allowed for a cultural report which showed her offending was linked to a violent upbringing which led her to seek refuge in gang culture, along with a modest credit for time spent on EM bail.
In our view, this appeal must be considered in light of the purpose of an adjustment for totality which is set out in s 85(2) of the Sentencing Act as follows:
If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
This principle applies both to sentencing for proximate offending and also to crimes committed while already in custody for other offences. As noted in Skipper v R, “the totality principle is not limited to sentencing on a single occasion for multiple offences”.[25] The Court of Appeal in R v O noted that the policy behind s 85 was clear; while individual sentences needed to be decided in a manner that reflected the seriousness of each offence, the total sentence needed to be structured in a manner that avoided a wholly disproportionate result.[26]
[25]Skipper v R [2011] NZCA 250 at [34].
[26]R v O CA258/05, 3 March 2006 at [19].
In sentencing Mr Ngamoki, the Judge did not adopt the language of s 85, rather he considered whether the resulting sentence was “excessive or crushing”.[27] While the term “excessive” is analogous to the phrase “wholly out of proportion”, the term “crushing” focuses on the impact of the sentence on the offender, rather than whether the sentence reflects the gravity of the offending.
[27]High Court judgment, above n 2, at [84].
However, the consideration of whether a sentence is crushing is frequently used when deciding whether to adjust for totality. The term seems to have been first used in R v Bradley, where this Court cited Principles of Sentencing, a text which set out a two-limb test for applying the totality principle.[28]
[First] a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or [second] if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects.
In that case, the Court concluded “[w]eighing these factors we are satisfied that an unusually long sentence is called for, but not one so long as to be crushing or to deprive the prisoner of all hope.”[29] From this conclusion, other cases have adopted the test of whether a sentence is crushing when applying the totality principle. For example, a number of decisions of this Court caution against cumulative sentences that would lead to a “crushing” result.[30]
[28]R v Bradley [1979] 2 NZLR 262 (CA) at 263, citing D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) at 57–58.
[29]At 264.
[30]Haywood v R [2015] NZCA 551 at [13]; Taylor v R [2018] NZCA 444 at [17]; Piao v R [2020] NZCA 607 at [22].
However, a more critical approach was taken by Queensland Court of Appeal in R v Schmidt, where Fryberg J discussed how the concept of a “crushing” sentence relates to the totality principle.[31] He observed that on a number of occasions, the Courts had employed the concept of a “crushing” sentence when considering the application of the totality principle. However, he pointed out there is a difference between the principle of totality and the avoidance of a crushing sentence.[32] For example, in R v Yates, Murphy J said the question of whether the sentence is crushing on the offender “cannot be determinative of the real issue, which is, whether the sentence imposed is appropriate to the crime having regard to all the circumstances”.[33] Similarly, in R v Smith ex parte Attorney-General, Chesterman J wrote:[34]
I add deferentially, as an aside, my opinion that the essence of the principle is not to avoid imposing a “crushing” sentence on the offender but rather to ensure that the aggregate sentence fairly and justly reflects the total criminality of the offender’s conduct.
[31]R v Schmidt [2011] QCA 133, [2013] 1 Qd R 572.
[32]At [36], citing R v Barnes [2003] VSCA 156 at [31].
[33]R v Yates [1985] VR 41 (VCCA) at 49.
[34]R v Smith, ex parte Attorney-General (1998) QCA 220.
After reviewing a number of cases, Fryberg J concluded:[35]
[t]he cases suggest that whatever meaning is attributed to “crushing”, a crushing sentence may but need not be set aside. If that is so, then it cannot be a proper ground of appeal simply to show that a sentence was crushing. Whether associating the word with the totality principle adds anything to the standard requirement for the court to consider factors such as age, intellectual capacity and prospects for rehabilitation in relation to any sentence or sentences which it may impose remains a matter for consideration.
[35]R v Schmidt, above n 32, at [40].
That discussion leads us back to the central issue in any appeal which challenges the application of the totality principle, being whether the sentence imposed is wholly out of proportion to the gravity of the overall offending. The fact a sentence is “crushing” may be indicative of that, but is not determinative.
In this case, we must consider whether the resulting eight year and two months’ sentence was out of all proportion to the gravity of Mr Ngamoki’s offending. It includes three charges of kidnapping, four charges of aggravated robbery and other violence offences, and then the subsequent violence offences committed on two separate occasions while in prison. This is serious offending and, looked at in its totality, we consider the addition of a further 23 months for the two offences committed in prison is not disproportionate to the gravity of the offending. A 12‑month totality adjustment, as advocated by Ms Bloem, would result in a sentence that does not reflect the gravity of the recent violent offending in prison and would be contrary to the accepted principle that violent offending committed while in prison should attract a stern response.[36] As was said in Waru v R:[37]
… where an appellant has re-offended while in prison, the message from this Court has been clear and consistent. Such offending demands a stern response particularly where, as in this case, the offending goes to the maintenance of discipline needed to manage a prison effectively.
[36]Connelly v R [2010] NZCA 52 at [31]; Tryselaar v R [2012] NZCA 353 at [18]; Lake v R [2017] NZCA 39 at [7]; and Waru v R [2019] NZCA 347 at [31] and [32].
[37]Waru v R, above n 37, at [31] (footnotes omitted).
Furthermore, Mr Ngamoki has now nearly completed his initial sentence. He remains eligible for parole, even with the additional 23 months added to his sentence. This is not a case where his release date or potential release date is extended so far into the future by the additional sentence that the penalty could be seen to be disproportionate to the gravity of Mr Ngamoki’s serious, violent offending.
Accordingly, we agree with Moore J that the test for a totality adjustment in s 85 was not met, and there was no error in the sentence imposed.
Result
The appeal against sentence is dismissed.
Solicitors:
Bloem & Associates, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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