Ngaropo v Police

[2019] NZHC 2060

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-463-56

[2019] NZHC 2060

BETWEEN

IMELDA NGAROPO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 August 2019
Appearances:	Appellant in person (with W Tautari as McKenzie friend) H J Sheridan for Respondent
Judgment:	22 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 August 2019 at 10:00 am

Registrar/Deputy Registrar

Solicitors:
Pollett Legal (Tauranga) for Respondent

NGAROPO v POLICE [2019] NZHC 2060 [22 August 2019]

Introduction

[1]    On 21 June 2019, Judge PS Rollo sentenced Ms Ngaropo to 80 hours’ community work, with nine months’ supervision.1 Ms Ngaropo now appeals this sentence. Her contention is she should have been discharged without penalty because of amends she had made at the direction of a body known, in short, as “Paa Kooti”,

The sentencing

[2]    Ms Ngaropo was sentenced by Judge Rollo on five charges related to her driving.

[3]    Two charges arose from an occasion on 18 June 2018 when Ms Ngaropo was found to be driving with excess breath alcohol. The level was 694 micrograms of alcohol per litre of breath. Ms Ngaropo was also driving while disqualified. The drink-driving charge was aggravated because Ms Ngaropo had twice previously been convicted of drink-driving (on 29 July 1996 and on 24 January 2018).

[4]    The remaining three charges arose from Ms Ngaropo’s driving on 5 October 2018. The  charges  were  driving  with  excess  blood  alcohol,  with  a  level  of  133 milligrams of alcohol per 100 milligrams of blood; driving while disqualified; and assault on a police constable acting in the execution of her duty (charged under the Summary Offences Act 1981). The drink-driving offence in this set of charges was also in the aggravated form because it was Ms Ngaropo’s fourth offence of this kind.

[5]    Ms Ngaropo pleaded not guilty to the 5 October 2018 offending and was convicted following trial before Judge Rollo.

[6]    Judge Rollo records that Ms Ngaropo did not challenge any of the prosecution evidence and did not participate in the proceeding itself. I infer this was because of Ms Ngaropo’s view of the jurisdiction of the Court.

1      Police v Ngaropo [2019] NZDC 12302.

The appeal

[7]    The nub of Ms Ngaropo’s appeal is that because of the involvement of Paa Kooti, and the work in the community she did as a result, she had addressed her offending to the point where Judge Rollo should have discharged her.

[8]    My task is to see whether Judge Rollo made an error such that a different sentence should be imposed. If the sentence is manifestly excessive that will be such an error. I start by setting out the Judge’s approach to the Paa Kooti involvement:

[6]        The background to that is your involvement in an organisation called Paa Kooti. It is a Māori kaupapa that is focused, in this area, out of Te  Puke. It is marae and whanau-based and my understanding of the process is that it is intended to be a form of alternative system of justice to be dealt with, effectively on marae, by Māori dealing with Māori offenders. The difficulty, as we have previously discussed, not only in your case but in another case you were present at involving a young man who was being assisted by Mr Tautari and others, is that the law does not recognise an alternative form of justice in the way Paa Kooti seeks to provide.

[7]        Having said that, Ms Ngaropo, there are a number of steps being taken within the Courts and within the Justice Ministry to look at different ways to deal with criminal offending, or traffic offending, particularly to meet expectations and cultural differences with Māori, so you might be slightly ahead of the law in the approach which you and the Paa Kooti kaupapa are embracing.

[8]        Having said that, as we have again previously discussed, as a Judge of the District Court, I am bound to apply the law as it currently is, not as it might become in due course.

…

[11]              The second point is that the documents which you have put before me, including an affidavit from Mr Tautari, tell me that you have had an adjudication, effectively, by the Paa Kooti kaupapa, as to how you should repay the community for your offending, specifically, that you undertake 160 hours’ community work, as overseen by the Paa Kooti organisation, and that you undertake some rehabilitative counselling.

[12]              I accept the documents that Mr Tautari has put before me which record that you have undertaken various work for persons, intending it to be ‘community work’.

[13]              The problem, and it is a problem that has been at the forefront of conflict in belief by the Paa Kooti organisation and the Courts in the past, is that community work should be sanctioned through the agency that administers sentences of community work in Aotearoa/New Zealand and that is the Department of Corrections. And the attitude which the

Department has taken is that, if it is not a sanctioned form of community work, then it does not count as ‘community work’.

[14]              I know from past experience, and Mr Tautari and I discussed this at the last hearing, as I recall, that on occasions, particularly in my case, I have given credit where there was some uncertainty as to whether ‘informal’ community work was approved or not. That was in Whakatane District Court some years ago.

[15]              The secondary point is that the ‘counselling’ which you have undertaken, that does not have to be sanctioned through the Department of Corrections. The law recognises that, if a person takes rehabilitative steps to address the causes of their offending, then they are entitled to credit for that in the sentencing process. What I am told is that you have completed an alcohol course through the local hauora and done so successfully and so, what you are putting before me, in effect, through the Paa Kooti kaupapa, is a body of community work, so called, and the rehabilitative alcohol course.

[9]       Judge Rollo went on to consider Ms Ngaropo’s personal circumstances and decided not to follow the recommendation of imprisonment in the latest PAC report:2

I think the most positive thing is that you have taken some steps to make changes in your life, supported by Mr Tautari and the wider whānau who support you today, and my embracing that is going to be beneficial in the longer term.

[10]     In addition to the sentence of community work and supervision, Judge Rollo granted Ms Ngaropo an alcohol interlock licence and did not impose disqualifications on the two disqualified driving charges.

[11]     Judge Rollo made it clear this was a sentence imposed as an alternative to a sentence of imprisonment and warned Ms Ngaropo that any further drink-driving offending would be met with a sentence starting point of imprisonment.

Discussion

[12]     This Court has twice before considered how work undertaken by people under the auspices of Paa Kooti should be taken into account by a sentencing Court. Justice Moore’s decision of 16 October 2017 is the first and major judgment.3 That was a

2 At [18].

3      Oneroa-Hill v District Court at Tauranga [2017] NZHC 2471.

case where mahi was undertaken by a person prior to the District Court considering remitting outstanding fines through the substitution of community work.

[13]     I respectfully agree with the principles set out and discussed by Moore J. In brief summary they are:

·The jurisdiction of Paa Kooti cannot be recognised by the Courts.

·There is ample provision in the Sentencing Act 2002 by which mahi undertaken by a person to address criminal wrongdoing can be, and should be, taken into account by a sentencing Court. It includes s 8(i) which provides pathways by which Māori customary considerations may be taken into account in the sentencing process; s 10 which requires the sentencing Court to take into account (relevantly) the performance of any work or service made by or on behalf of the offender to the victim as well as any remedial action taken by the offender in relation to the circumstances of the offending; and s 27 which entitles an offender to ask the Court to hear from whanau and others on the offender’s cultural background.

·The weight to be given to mahi depends on proof it has been carried out and details of what was done.

·The relevance of mahi goes to remorse and making amends. In other words, it goes to mitigation of the offending and can point to rehabilitation.

[14]     Justice Moore made the following comments, which I adopt for the purposes of this appeal:

[58]      All of these points simply reinforce that the mahi undertaken voluntarily by [the appellant] is merely evidence from which to infer the existence of mitigating factors such as acceptance of responsibility and completion of remedial action. It is not work which operates in any way as a substitute for the community work which would have otherwise been imposed by a sentencing Court. Offenders who may attempt to pre-empt a sentence of community work by undertaking work voluntarily therefore risk receiving limited, or even no, recognition at sentencing for that work.

[59]      For this reason, institutions such as Paa Kooti as well as offenders wishing to undertake significant amounts of voluntary community work

would be well advised to work co-operatively with the Department of Corrections and the Courts to protect against unnecessary and significant duplication of work. To do otherwise would be to run the very real risk that work undertaken outside the auspices of properly regulated Government agencies, will not be taken into account. This will have the effect that offenders will find themselves duplicating their efforts by not only completing community work within their own societal structures but also being required to complete the full amount of any sentence of community work imposed by the Court.

[15]     Justice Edwards, in her judgment of 16 February 2018,4 dealt with a further appeal by the appellant from the resentencing by the District Court ordered by Moore J as the outcome of the appeal before him. Justice Edwards concurred with Moore J’s analysis and considered the 40 percent discount applied by the District Court Judge in reduction of community work hours in response to the mahi was generous.

[16]     In this case, although Judge Rollo accepted the documents put forward as establishing the mahi, the  detail  in  them is  sparse.  From  my perusal  it  seems  Ms Ngaropo predominantly assisted Paa Kooti with kaimahi. No details are given.

[17]The mahi was not done in consultation with the Department of Corrections.

[18]     I accept that Judge Rollo could have discussed more fully the weight he would give to the mahi. However, in an appeal against sentence it is the end sentence that is the key consideration, not whether the path to it might have been expressed in a more detailed way.

[19]     My reading of Judge Rollo’s sentencing notes is that the Judge did, in a holistic way, take the mahi into account. He saw it as part of the steps Ms Ngaropo had taken to make changes in her life. Those changes persuaded the Judge to step back from imprisonment.

[20]     In my view, the end sentence imposed  by the  Judge  gave  full  weight  to Ms Ngaropo’s work and efforts to make amends to society by performing it. On my assessment, a sentence of intensive supervision coupled with community detention was available. The actual end sentence is lenient and explicable only by the Judge

4      Oneroa-Hill v Department of Corrections [2018] NZHC 163.

giving Ms Ngaropo full credit for her rehabilitative progress. The Judge’s view of that progress seems justified. Ms Ngaropo told me she and her partner are employed, they live at the marae, and the marae is an alcohol-free environment.

Result

[21]The appeal is dismissed.

Brewer J