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Ngamoki v R

Ngamoki v R

Case [2022] NZCA 171 9 May 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA692/2021
[2022] NZCA 171

BETWEEN	RIKI WIREMU NGAMOKI Appellant
AND	THE QUEEN Respondent

Hearing:	31 March 2022
Court:	Gilbert, Woolford and Dunningham JJ
Counsel:	A S Bloem for Appellant JEL Carruthers for Respondent
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…

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 R

Details

AGLC: Ngamoki v R [2022] NZCA 171
Case: [2022] NZCA 171
Decision Date: 9 May 2022 at 9 am

CaseChat Overview and Summary

The appellant, Riki Ngamoki, was appealing against his sentence of eight years and two months’ imprisonment for serious offending committed as a juvenile and while in custody. Ngamoki’s counsel, Ms Bloem, argued that the sentence was excessive and that the trial judge erred by not adjusting the sentence to reflect the principle of totality. The Court of Appeal dismissed the appeal, finding that there was no error in the sentence imposed.

The Court of Appeal found that the trial judge had appropriately considered the principle of totality and had concluded that the sentence was not excessive or crushing. The Court found that the sentence reflected the gravity of Ngamoki’s offending, which included three charges of kidnapping, four charges of aggravated robbery and other violence offences, as well as two further offences committed while in prison. The Court found that the additional 23 months imposed for the two offences committed in prison was not disproportionate to the gravity of the offending. The Court found that Ngamoki’s sentence did not extend his release date or potential release date so far into the future that the penalty could be seen to be disproportionate to the gravity of his serious, violent offending.

The Court of Appeal found that the sentence imposed was within range and that the trial judge had appropriately considered the principles of sentencing, including the principles of deterrence, denunciation and rehabilitation. The Court found that the sentence imposed was appropriate to the crime having regard to all the circumstances, and that there was no error in the sentence imposed. The appeal against sentence was therefore dismissed.

Orders