Ngamotu v The Queen - [2010] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND
CA523/2009
[2010] NZCA 121
BETWEENREIHANA CLAUDE NGAMOTU

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 March 2010

Court:O'Regan, Rodney Hansen and Simon France JJ
Counsel:A J S Snell for Appellant

T Epati for Respondent

Judgment:1 April 2010 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]        Mr Ngamotu appeals a final sentence of five years, two months, two weeks’ imprisonment.   The sentence was imposed by Judge Cunningham on 31 July 2009 following a guilty plea to an indictment containing 20 counts of varying forms of assault.[1] The primary victim was his partner of 15 years, and the other victims were his three children, and a friend of his partner. The offending dates back to November 1996.
[1]      R v Reihana Ngamotu DC Gisborne CRI -2008-016‑001901, 31 July 2009.
[2]        The charges to which Mr Ngamotu pleaded are assault with a weapon (x 2), assault on a female (x 6), injuring with intent to injure (x 2), assault with intent to injure (x 4), threatening to kill (x 3), assault on a child (x 3), and cruelty to a child.
Facts
[3]        It is necessary to detail the conduct involved in all of the 20 charges, although they can be grouped in relation to each of the victims.
[4]        Concerning his partner, the first offence was in November 1996. A verbal argument escalated into a physical confrontation. Mr Ngamotu hit his partner in the mouth sufficiently hard to result in the loss of a tooth. The victim impact statement makes it plain it was a matter that caused both considerable on‑going pain and considerable stress to the victim for some time. Eventually a denture was made to replace the tooth.
[5]        In August 2003, Mr Ngamotu’s partner returned home, accompanied by a friend. An argument ensued and Mr Ngamotu punched his partner four times in the face with a closed fist. The friend was surprised that Mr Ngamotu would act in this way in front of her. She sought to intervene and was herself punched. The assault on her, as with the assault on Mr Ngamotu’s partner, occurred in front of the friend’s children (the assault on the friend is count 3 in the indictment).
[6]        The next assault was about three weeks later. It involved Mr Ngamotu head butting his partner, resulting in laceration to her right eyebrow that required stitches.
[7]        There is then a gap of four years to December 2007. An argument in the car whilst on the way to work saw Mr Ngamotu divert to a beach area. His partner was pulled from the passenger seat and forced against the car with his forearm against her throat. This caused a difficulty in breathing that lasted for some time. As a consequence, Mr Ngamotu was charged both with assault with intent to injure, and threatening to kill.
[8]        During the same month an argument during the…

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 Ngamotu v The Queen

Details

AGLC: Ngamotu v The Queen [2010] NZCA 121
Case: [2010] NZCA 121
Decision Date: 1 April 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Reihana Ngamotu, the appellant, contested the severity of his sentence against The Queen, the respondent. Mr. Ngamotu was sentenced to five years, two months, and two weeks in prison following a guilty plea to 20 counts of assault, including assault with a weapon, injuring with intent, and assault on a child. The victims included his partner of 15 years, his three children, and a friend of his partner. The court had to decide if the sentence was excessive and if the totality principle was properly applied. Mr. Ngamotu’s counsel argued that some of the individual sentences were excessive, particularly the eight-month sentence for throwing a closed knife at his partner, which did not result in injury. Counsel also argued that the final sentence was excessive by 12–18 months. The Crown, however, argued that the sentence was appropriate given the sustained domestic abuse and the number of victims. The court found that the sentence was within the available range, noting the cruelty of the assaults, the manufacturing of opportunities for violence, and the significant emotional impact on the victims. The court dismissed the appeal, affirming that the sentence was appropriate and the totality principle had been properly applied.

Orders