Ngatae v The Queen - [2016] NZHC 3068

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000032 [2016] NZHC 3068

BETWEEN
MALACHI AUMETUA-TIPENE

NGATAE Appellant

AND

THE QUEEN Respondent

Hearing: 14 December 2016

Appearances:

S A Saunderson-Warner for Appellant
R D Smith for Respondent

Judgment:

14 December 2016

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Ngatae, was sentenced to two years and one month’s

imprisonment by Judge Phillips in the District Court at Dunedin on 23 November

2016 in relation to charges of injuring with intent to injure and injuring by an unlawful act.

[2] He appeals against his sentence on the basis that it is manifestly excessive. Grounds for this appeal are primarily that the sentence was excessive by reason of the uplift adopted on the charge of injuring by an unlawful act being too great. The ultimate sentence, the appellant says, should have been less than two years’ imprisonment and a sentence of home detention should have been substituted.

Factual Background

[3] Turning now to the factual background in this matter, the charge of injuring with intent to injure involved an incident that occurred in the early hours of Saturday

NGATAE v THE QUEEN [2016] NZHC 3068 [14 December 2016]

20 February 2016. The appellant (who was then aged 17) was with a group of friends. He received a telephone message from an associate saying that a friend was being assaulted and he went to that location. The appellant and a number of his associates approached a vehicle driven by the victim. One of those co-defendants punched the victim in the face through the window of the vehicle. He was then pulled from the driver’s seat. From a few metres away, the appellant threw a bottle which struck the victim to the rear of his scalp. The appellant then punched the victim to the head. The victim ended up on the ground and the appellant and others punched and kicked him to the head and body while he was on there. The victim received a cut to his scalp and a swollen and bruised right eye and cheek. The appellant admitted his involvement. His co-defendants, however, have pleaded not guilty and are awaiting trial.

[4] The other charge, this one of injuring by unlawful act, arose as a result of an incident on 20 August 2016. During the afternoon on that day the appellant was attending a street party in Dunedin. The victim in that incident was heavily intoxicated and was sitting on the footpath outside the address in question. The appellant approached him and said he wanted to punch the victim but he left only to return a short time later. At that time, the appellant stood in front of the victim and made a derogatory comment about the victim’s mother. He then punched him once on his jaw using his closed fist. The punch caused the victim to fall to the ground. The victim received a concussion resulting in an ongoing headache.

District Court’s Decision

[5] Turning now to 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 Ngatae v The Queen

Details

AGLC: Ngatae v The Queen [2016] NZHC 3068
Case: [2016] NZHC 3068
Decision Date: 14 December 2016

CaseChat Overview and Summary

The appeal heard by Gendall J concerned Mr Ngatae's sentence of two years and one month's imprisonment, imposed by Judge Phillips in the Dunedin District Court for charges of injuring with intent to injure and injuring by an unlawful act. The appellant argued that the sentence was manifestly excessive, primarily due to the 12 months' cumulative imprisonment for injuring by an unlawful act, which he believed should have been less. He also suggested that home detention should have been considered as a substitute. The court considered the appellant's submissions and relevant authorities to determine whether the starting point for injuring by an unlawful act was manifestly excessive and if leave should be granted for home detention.

The court found that the District Court did not err in imposing a cumulative sentence of 12 months' imprisonment on the charge of injuring by an unlawful act. The court noted that the incident was distinct and separate from the other charges, and the severity of the injury, along with the unprovoked nature of the assault, justified the starting point. Additionally, the appellant's culpability was similar to the offenders in the cited authorities, and the fact that the appellant was on bail for another serious violent offence at the time of this offence further aggravated the charge. The court also found that even if the starting point was considered excessive, the reduction of three months to account for the principle of totality corrected any potential error.

Furthermore, the court noted that since the sentence imposed was above the "short term imprisonment" period, it was not necessary to consider whether leave to apply for home detention should be granted. The court rejected the appellant's argument that the sentencing judge should tailor the end sentence to allow home detention as a substitute, as it had been firmly rejected by previous case law. Therefore, the appeal was dismissed.

In conclusion, the High Court found no error in the District Court's sentencing of Mr Ngatae for injuring with intent to injure and injuring by an unlawful act. The starting point for injuring by an unlawful act was deemed appropriate, and the court rejected the argument for home detention as a substitute. As a result, the appeal was dismissed, and the original sentence stood.

Orders