Ngatai-Check v R
[2011] NZCA 543
•27 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA175/2011 [2011] NZCA 543 |
| BETWEEN RIKKI LEIGH SCOTT NGATAI-CHECK |
| AND THE QUEEN |
| Hearing: 29 September 2011 |
| Court: Harrison, Fogarty and Simon France JJ |
| Counsel: W Lawson and G Burt for Appellant |
| Judgment: 27 October 2011 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
The appellant, Rikki Ngatai-Check, was found guilty of murdering Karl Perigo-Check following a trial before Williams J and a jury in the High Court. He was convicted and sentenced to a term of life imprisonment with a 17 year minimum period of imprisonment.[1]
[1] R v Ngatai-Check HC Wanganui CRI-2009-083-3155, 23 February 2011.
Mr Ngatai-Check appeals against his conviction. His counsel, Mr Lawson, relies on the grounds that at trial photographs were improperly admitted, a pathologist gave inadmissible evidence, and the prosecutor was guilty of misconduct in his closing address. He says that the trial miscarried as a result.
Mr Ngatai-Check appeals separately against the minimum period of imprisonment.
Facts
The material facts were not in significant dispute at trial.
Mr Ngatai-Check, who was then aged 22 years, was in a relationship with the mother of Karl Perigo-Check. Karl was then aged 2 years. On the day of his death, Karl’s mother left him in Mr Ngatai-Check’s care.
The circumstances leading to Karl’s death were summarised by Williams J when sentencing Mr Ngatai-Check as follows:
[7] Early in the afternoon a woman visited, a friend of yours. Karl was fast asleep on the couch when she got there – she remembered that. You and your friend spotted cannabis oil and then she left. There is no argument but that you were stoned at that point.
[8] Some time later Karl woke up. He had wet his pants and he left a puddle on the couch seat cover. You got angry; you grabbed him and swung him around away from the puddle. His torso hit the edge of a coffee table in the middle of the lounge. This collision broke Karl’s 8th and 9th ribs on the right-hand side near his spine. The broken ribs punctured Karl’s right lung and he began to bleed into his chest cavity.
[9] You took him into the toilet in your flat and left him sitting there while you went back to playing video games on the bed in your bedroom next door.
[10] After five to 10 minutes Karl walked into the bedroom carrying a line of toilet paper behind him.
[11] This time you snapped completely. You sat up on the edge of the bed and kicked Karl roundhouse style in the stomach. Karl flew back towards the wardrobe door in your bedroom and he laid there on his side. The kick was so severe that it caused the internal tissue known as the ‘mesentery’ (we were advised during trial) to tear at a place called ‘the ileo-colic junction’. Such was your fury in that moment that you stood up and kicked Karl again, this time even harder. The kick rammed him up against the wardrobe door in your bedroom. With his back having nowhere to go behind him, your kick pressed Karl’s pancreas into his spine with so much force that you split the pancreas. The wound divided Karl’s splenic artery from the vein causing massive internal bleeding. Karl bled to death in a short time.
[12] If more proof were needed about the viciousness of that second kick, it comes in the fact that Karl’s left forearm and right elbow had carpet burns on them – the effect of him being skidded across the carpet by your kick.
[13] You then began cleaning up the toilet paper but you came to notice that Karl was now very sick indeed. His legs were convulsing uncontrollably, his face was pale, his lips were turning purple and he could not breathe.
[14] You realised what had happened and you picked Karl up, put him in your truck and raced to Whanganui Hospital arriving at 4pm.
[15] Karl was effectively dead on arrival.
Conviction
(a) Photographs
The first ground of appeal advanced by Mr Lawson is that Williams J erred in ruling that three post-mortem photographs of Karl produced by the Crown were admissible at trial.
Photograph 1 showed Karl lying fully clothed on his side on the pathologist’s gurney with his face obscured and his back to the camera. The pathologist was standing in front of the gurney with only his middle torso evident. His hand within a surgical glove was on Karl’s left shoulder.
Mr Ngatai-Check was charged with murder under s 167(b) of the Crimes Act 1961. The Crown alleged that he meant to cause to Karl bodily injury which he knew to be likely to cause death and was reckless whether death ensued or not. The Crown’s purpose in producing photograph 1 was to show that Mr Ngatai-Check must have been aware of the risk of death when delivering the kicks to Karl’s body because of the size disparity between the two and his appreciation of the likely effect of his second kick on such a small person lying prone on the floor.
Mr Lawson appeared for Mr Ngatai-Check at trial. He objected to the Crown’s admission of photograph 1 on the ground that its limited probative value was outweighed by the risk of an unfairly prejudicial effect in terms of s 8 of the Evidence Act 2006. He submitted, as he did on appeal, that the size disparity between Karl and Mr Ngatai-Check could be and was adequately explained by other means. On Mr Lawson’s argument, the photograph added nothing.
Williams J dismissed Mr Lawson’s objection. The Judge found that photograph 1 was relevant to an issue in the trial; and that its relevance was not diminished by the fact that the evidence could have been given in another form.[2] The Judge reasoned that:
[7] ... The fact is the victim had the special characteristic of being a small infant (small even by the standards of an average two year old). The jury is entitled to the best evidence of the fact as seen by the accused at the crucial time. The prejudicial effect of this on the jury is a natural consequence of the fact that the victim is a small infant. It is not an effect which presents a risk of unfair prejudice.
[2]R v Ngatai-Check HC Wanganui CRI-2009-083-3155, 22 November 2010 (Ruling No 1).
We agree with Williams J. In our judgment photograph 1 had appreciable probative value. It was the best available evidence of Karl’s size at the time of his death. A picture tells a thousands words. As Mr Collins points out, the photograph shows Karl from the reverse angle as he presented to Mr Ngatai-Check at the time of delivery of the second kick. It provided a visual reference point for Mr Ngatai-Check’s admission to the police that Karl was “fragile ... real small and ... delicate” and the opinion of a paediatric surgeon, Professor Kevin Pringle, that he was “significantly under grown height-wise for his age”.
Photograph 1 would assist the jury to assess for itself the susceptibility of a body of Karl’s size while lying in the depicted position to damage from a kick and the degree of force necessary to propel him into the wardrobe door causing his pancreas to press into his spine and rupture. The jury’s evaluation of that fact was directly relevant to the state of Mr Ngatai-Check’s knowledge and intent when delivering the second kick. That was a critical component of the ultimate question for determination on the murder charge.
Once the photograph’s probative value was established, prejudice to the defence was inevitable. The only issue was whether its admission raised a risk of illegitimate prejudice. Mr Lawson could not have objected if Karl had survived the blows and the photograph was produced showing him in the same prone position on a prosecution of Mr Ngatai-Check for injuring with intent to cause grievous bodily harm. It is the fact that Karl’s body was shown in a lifeless form which raised the potential for prejudice. But the risk of prejudice is a natural element of any prosecution for culpable killing of a child.
We are satisfied that the reverse angle and obscurity of Karl’s face minimised the prejudice otherwise inherent in the photograph. And there were no visible signs of injury or damage. Moreover, Williams J directed the jury against being influenced by feelings of prejudice or sympathy. He related this direction specifically to Karl’s age and the circumstances of his death. We are satisfied that the Judge’s words would have further limited the risk of any illegitimate prejudice.
Mr Lawson submits that photographs 2 and 3 should not have been admitted for the same reason. They were also produced to demonstrate the degree of force used by Mr Ngatai-Check. Both show small grazes or abrasions to Karl’s left and right arms. They were taken after his clothing had been removed. His upper body and part of his head are visible in photograph 3. On the Crown’s case the abrasions were caused by Karl’s contact with the carpet as he was propelled across the floor following Mr Ngatai-Check’s delivery of either or both kicks. They are colloquially known as “carpet burns”.
Mr Lawson also objected to the admission of photographs 2 and 3 at trial. Williams J rejected this challenge as well on the grounds:[3]
[8] As to photographs 2 and 3, whether they were caused by the first or the second (causative) kick, they remain relevant. The grazes give some indication of the level of force exerted in one or other of these kicks. Sufficient, that is, to propel the victim across a carpet with enough speed to cause his skin to burn. If the burns came from the first kick, then [Mr Ngatai-Check] must have seen the effect of the force of his kick but nonetheless delivered a second kick. If it was in fact the second kick then it still demonstrates that a high level of force was brought to bear. Either way, the injuries go to state of mind.
[3] R v Ngatai-Check HC Wanganui CRI-2009-083-3155, Ruling (No 1), 22 November 2010.
Mr Lawson submits that the photographs are of limited probative value when determining Mr Ngatai-Check’s state of mind during the fatal kick; and that photograph 3 was highly prejudicial because part of Karl’s face could be seen. He says the photographs could have been cropped to include only the specific injury, thereby minimising their prejudicial effect.
Again we agree with the Judge. Both photographs had a high probative value for the reasons given by Williams J. Consequently, as the Judge pointed out, they would have a significantly prejudicial effect on the defence but not unfairly so. It may have been preferable to crop photograph 3 more closely but that feature does not render the photograph unfairly prejudicial. Again, we refer to the Judge’s direction (see at [15] above).
This ground of appeal fails.
(b) Medical evidence
The second ground of appeal raised by Mr Lawson is that Williams J erred in dismissing an application to abort the trial after evidence given by Professor Pringle.
Professor Pringle is a paediatric surgeon. He was called by the Crown to give expert evidence about the injuries sustained by Karl and the force required to kill him. The Professor described the force necessary to cause the damage to Karl’s pancreas as “immense” and “enormous”. He likened the injuries to those suffered by children wearing lap seat belts in high speed head on car accidents.
Towards the end of his examination-in-chief, Professor Pringle was asked again about force. He said this:
Q.In terms of the damage that occurred and the mechanism by which the injury appeared to have been caused?
A.Mhm.
Q.Where was the pancreas fetched up?
A.The blow has to have been, the object that hit the pancreas has to have deformed the anterior abdominal wall and the –
Q.The front of the tummy?
A.The front of the tummy, jammed the pancreas and these blood vessels right up against the unmovable object of the spine.
Q.Right.
A.So it’s got to have moved all of that distance to do that damage.
Q.And the force required to do that?
A.This is a very severe blow. ... [T]his is a ... kick with venom.
(Our emphasis.)
In the jury’s presence Mr Lawson immediately objected to this last answer. His objection was essentially that Professor Pringle’s description of the kick being delivered “with venom” exceeded the scope of his admissible opinion evidence. Mr Lawson submitted that the Professor’s function was to describe the nature and extent of Karl’s injuries and their cause. But by this answer the witness trespassed into the forbidden area of Mr Ngatai-Check’s state of mind.
Mr Lawson applied for an order discharging the jury and directing a retrial. In a comprehensive ruling Williams J dismissed the application.[4] The Judge noted that:
[4] Mr Lawson argued that this was highly improper comment from a professional witness of standing and that its effect on the jury would be irretrievable. He argued that the jury would see this comment as indicating that in the professional opinion of a highly regarded paediatrician, Mr Ngatai-Check can only have intended to inflict severe injury on Karl Perigo Check when he delivered his second kick.
[5] Mr Lawson argued that that is the only way this comment would be interpreted by the jury and that presents a prejudice so great for [Mr Ngatai-Check] that it cannot be repaired by a direction that the jury should disregard any aspect of the comment that might be seen to go to Mr Ngatai-Check’s intention. All a direction will do, in Mr Lawson’s submission, is highlight the problem for the jury and make matters worse.
[4]R v Ngatai-Check HC Wanganui CRI-2009-083-3155, 26 November 2010 (Ruling No 2).
Williams J was satisfied that any risk of the jury interpreting the expert’s two words as carrying a meaning outside of his brief and expertise could be adequately met by a firm judicial direction. He accepted that this step would refocus or resurrect Mr Lawson’s objection. But that was a necessary consequence of the objection being made in front of the jury in the first place.
In summing up the Judge directed the jury as follows:
[39] Now at this point, I want to address something that Kevin Pringle said in evidence. You will recall him, he was the paediatrician. He explained the nature of Karl’s injuries and talked about the force necessary in his experience to cause the injury that caused Karl’s death. He said the second kick must have been delivered with venom. I have struck that comment from the record. And I want you to completely disregard it. I have taken that step because what he said was pure speculation on his part. And if you read it as going to the state of Mr Ngatai-Check’s mind, it was well beyond his brief and expertise. His expertise does not extend to what was in Mr Ngatai-Check’s mind when he delivered the second kick. All he can say is that the kick was delivered with significant force. That is a factor for you to consider but that is all. Beyond that you are the ones to make the judgment, not him. You, unlike Dr Pringle, have heard all of the evidence in this case and you must take into account all that evidence when you reach your conclusion.
Mr Lawson has in this Court repeated the same arguments advanced in support of his application for a mistrial. He says that Professor Pringle’s statement was highly prejudicial and went directly to the issue of murderous intent. Its adverse effect was compounded when viewed in the context of a highly emotive trial relating to a two year old child’s death. Thus the Professor’s comment was likely to have a particularly strong impact on the jury.
Mr Lawson acknowledges that Williams J was exercising a discretionary power when dismissing his application for a mistrial. However, he submits that the Judge erred in principle by concluding that the taint of the words “with venom” was not so great as to create a risk that the jury would conclude the blow was delivered with reckless intent. He says the Judge failed to apply the correct test – that was whether there was a danger or reasonable suspicion that Mr Ngatai-Check had been prejudiced and thus the jury may accept the inadmissible opinion when arriving at a verdict. While conceding that the Judge’s direction was comprehensive, Mr Lawson submits that that factor did not guarantee its effectiveness.
The starting point for considering Mr Lawson’s submission is this passage from R v Thompson,[5] cited by Mr Collins:
[16] Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts. An appellate court will not likely interfere with the exercise of that discretion. It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.
[5] R v Thompson [2006] 2 NZLR 577 (SC) at [16].
Similarly in R v McLean,[6] to which Williams J referred, this Court said:
[14] The legal principles are well settled. Where there is inadvertent disclosure of prejudicial information about an accused the trial Judge has a discretion to discharge the jury. Whether it will be proper to do so depends on the facts of the particular case. If the jury is not discharged, whether to give a direction and, if so, what direction in relation to the objectionable passage in the evidence, similarly depends on the facts of the particular case. If the trial proceeds and the accused is convicted the ultimate question on appeal is whether a substantial miscarriage of justice occurred.
[6] R v McLean (Colin) [2001] 3 NZLR 794 (CA).
These authoritative statements reinforce the truly discretionary power exercised by the Judge. Appellate courts will only interfere if when declining an application to discharge the jury the trial Judge erred in law, failed to give proper weight to a relevant factor or gave improper weight to an irrelevant factor, or was plainly wrong. Williams J had the unique benefit of familiarity with all the trial dynamics. He was best placed to exercise what was quintessentially a judgment on what step or steps should be taken to address the inadmissible evidence. His decision is entitled to particular respect as a result.
A sense of perspective is necessary when deciding whether Williams J made a reviewable error. Professor Pringle’s two words were inappropriate and gratuitous. They cannot be justified by adopting a strict or technical view. Their common meaning was plain. But they were, after all, as the Judge emphasised, only two words. It was not as if the witness disclosed a damaging fact.
Professor Pringle’s reference to the kick being delivered “with venom” must be construed in context. The phrase added nothing more than what was obvious from his preceding and unobjectionable observation that the blow was delivered with considerable force. Indeed, all the evidence pointed overwhelmingly in that direction. The Professor was drawing the same inference as the jury was being asked to draw. His observation was largely inconsequential when considered as it must be against the background of what had already been admitted into evidence and the circumstances of its admission. We cannot help but infer that the significance of Professor Pringle’s words has been exaggerated out of its true proportion.
Moreover, this Court proceeds on the premise that juries follow judicial directions. Williams J’s direction could not have been more emphatic. He directed the jury to treat Professor Pringle’s words as if they were never spoken. Of course there was the risk that by taking this step the Judge may have resurrected or compounded the original problem. But that would be the consequence of Mr Lawson’s initial reaction to the inadmissible phrase. Another counsel in the same position may have refrained from raising an objection in the jury’s presence and instead asked to see the Judge in Chambers to ensure that the witness did not repeat his breach, with the consequence that by the time of its deliberations what was said may have faded completely from the jury’s collective memory if ever it had made a particular impression.
Williams J decided on a particular course to address the issue which was, without doubt, reasonably open to him in the circumstances. The fact that another course may have been available is immaterial. We are not satisfied that the Judge erred or that there was any risk of a miscarriage as a result of the course he followed.
This ground of appeal fails.
(c) Prosecutorial misconduct
Mr Lawson’s third ground of appeal is that the Crown Solicitor, Mr Rowe, was guilty of misconduct in his closing address to the jury. He says there was a miscarriage because Mr Rowe advanced the Crown case in closing on a different basis than he did in opening.
The genesis of Mr Lawson’s complaint is that in opening Mr Rowe said:
About five to ten minutes later Karl appeared in the bedroom dragging toilet paper behind him. [Mr Ngatai-Check] became angry at the mess that Karl was making. He sat up on the edge of his bed and delivered a roundhouse style kick to Karl’s lower abdomen. This caused Karl to fall backwards towards the door and end up lying on his side on the floor. [Mr Ngatai-Check] then said he got up and he kicked Karl again. This time higher up in the abdomen pushing Karl against the wardrobe door. He cleaned up the toilet paper and when he came back he found Karl in distress on the floor having difficulty breathing ...
Mr Lawson observes that in opening Mr Rowe focussed on the second kick as being fatal based on the existence of four facts – namely the previous kick; the force with which the second kick was delivered; Karl’s relative size which was known to Mr Ngatai-Check; and Karl’s position, lying on his side when the kick was delivered. Mr Ngatai-Check had admitted to the police delivering two kicks to Karl separated by between five and ten seconds. Professor Pringle confirmed the existence of these kicks and their effect.
In closing Mr Rowe invited the jury to reject Mr Ngatai-Check’s assertion of delivering two kicks in relatively quick succession. He submitted that Mr Ngatai-Check had kicked Karl once when he came into the room leaving a trail of toilet paper behind him, gone to the toilet and found it a mess, and returned to kick Karl a second time. Mr Rowe’s theory was that by carefully comparing Mr Ngatai-Check’s statement against other evidence which had emerged at trial (Mr Ngatai-Check did not give evidence) the jury should infer that he had lied to the Police. In his submission there was a significant delay between the two kicks and:
The second kick was delivered in a circumstance where the force used was far more deliberate and intentional than [Mr Ngatai-Check] makes out.
Mr Lawson submits that Mr Rowe was guilty of misconduct by advancing in closing a theory that there was a significant delay between the two kicks. Mr Lawson complains that Mr Rowe’s submission was advanced without appropriate supporting evidence and was never foreshadowed. Thus Mr Lawson had no opportunity to address its plausibility at any stage of the trial. For example, Mr Lawson says, the alleged delay between the two kicks may have had medical consequences which could have been canvassed with the experts. As a result, Mr Rowe’s approach was prejudicial to the defence and an unfair trial resulted.
Again, in our judgment, Mr Lawson’s submission must be seen in perspective. He did not raise an objection with the Judge following Mr Rowe’s closing. He did not apply for the jury to be discharged or request the Judge to make special directions. Nor did he ask for leave to call or recall witnesses for cross-examination. Instead in closing Mr Lawson said this to the jury:
[11] ... I have to say I was stunned to hear Mr Rowe suggest now at this last part of the trial that the second kick was after an extended period when he had gone out and looked into the toilet and came back. [Mr Lawson’s personal reaction was irrelevant – his function was to make submissions.] That theory was never mentioned in opening – didn’t suggest that at all. It was never put to Professor Pringle as a possibility, and remember Professor Pringle had reviewed the video and considered Rikki Ngatai-Check’s video in conjunction with his assessment of the injury. This is what he says, the description by [Mr Ngatai-Check], of his second kick into the upper part of Karl’s abdomen where Karl was forced up against the wall adequately describes the circumstances within which the pancreatic injury could have occurred.
[12] Now if there was some other theory that he walked out past Karl and then came back and walked all the way around back into the same position before he kicked him, you might think that’s quite important to put the professor as a possibility. But here we are right at the end of the trial, this new theory pops up and immediately you ask yourself – why? Maybe it’s because he is struggling to get the right answer to the last question of his question trail.
[13] This is an example of selectively using evidence which does not help at all, and it is not consistent with what we know ... happened, and is likely to be correct.
[14] So I urge on you some real caution in relation to this extended period of time theory which appears to have just popped out of the ether within the last moment. And the reason it cannot be correct is that is ignores a whole lot of other factors – not least of which is Professor Pringle’s evidence on the point.
Furthermore, Williams J addressed this point in summing up in a way which favoured Mr Ngatai-Check. He commented as follows:
The defence rejects that scenario as the theory put together late in the day of the trial and poorly thought through. But the defence says in fact on either scenario – whether you follow Mr Ngatai-Check’s second interview or Mr Rowe’s scenario – either scenario is entirely consistent with Mr Ngatai-Check losing his cool and lashing out. The defence says to require Mr Ngatai-Check to accurately and minutely replay frame by frame those few moments between the scene on the couch and the second kick is a quite unrealistic counsel of perfection.
In Stewart v R the Supreme Court identified the differing roles and obligations of a prosecutor when opening and closing a case.[7] In summary, the opening address should be impartial and fair and provide a brief outline of the evidence which the Crown intends to call. By contrast, the closing address is a proper forum for argument where the Crown is entitled to advance its case forcefully. But the prosecutor must not engage in inflammatory rhetoric or legally impermissible submissions which effectively undermine a requisite degree of fairness. As Mr Collins submits, the prosecutor’s role in opening is to be conservative, not argumentative, whereas in closing it is to make an argument where appropriate.
[7] Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425.
In our judgment Mr Rowe did not step outside these boundaries when making his addresses. His opening was entirely appropriate. In accordance with his obligations, Mr Rowe outlined the evidence which would be called including Mr Ngatai-Check’s statement that he delivered two kicks to Karl’s body within quick succession. It was not his function to subject the statement to dissection or criticism. Among other things, Mr Rowe did not know whether Mr Ngatai-Check would be called to give evidence.
We are satisfied that Mr Rowe’s closing submission had a sufficient evidential foundation. As Mr Collins submits, Mr Rowe did not in closing change the Crown’s theory of the case – that is in kicking Karl the second time he intended to cause bodily injury of a type which he knew was likely to cause death. The only material difference was that Mr Rowe challenged the veracity of Mr Ngatai-Check’s assertion about timing, suggesting that the delay was much greater than originally stated.
Mr Rowe was entitled in closing to subject to analysis all the evidence which had been given to support a submission that Mr Ngatai-Check’s statement was untruthful. And with the benefit of the last right of address Mr Lawson was entitled to subject Mr Rowe’s theory to criticism. In the extensive passages from his closing address cited above (at [43]) Mr Lawson sought to use Mr Rowe’s address to Mr Ngatai-Check’s advantage by exposing what he submitted was a degree of desperation inherent in the Crown case.
Furthermore, Mr Lawson does not suggest that Williams J wrongly summarised his submission that the Crown’s closing theory was irrelevant. That was because, whether there was a delay or not between the kicks, the circumstances in which Mr Ngatai-Check delivered his second kick were consistent with a sudden loss of self control. Significantly, also, Mr Lawson did not identify on appeal how or why he might have cross-examined Professor Pringle differently if he was earlier aware of the Crown’s thesis. Indeed, it is difficult to envisage what admissible evidence he might have elicited from this witness.
We are not satisfied that this ground of appeal has any merit.
Sentence
Mr Lawson submits that the Judge erred in imposing a minimum period of imprisonment of 17 years. He accepts that s 104(1)(g) of the Sentencing Act 2002 applied because Karl “was particularly vulnerable because of his ... age”. As a result, the Judge was bound to impose a minimum period of imprisonment of at least 17 years unless it was manifestly unjust to do so. Mr Lawson’s argument is based on narrow ground. He says the Judge failed to give any or proper account for Mr Ngatai-Check’s remorse.
When sentencing Mr Ngatai-Check, Williams J carefully addressed Mr Lawson’s submission that it was manifestly unjust to impose the statutory minimum period of imprisonment as follows:
[34] In light of these considerations I would have given you a starting point of 15 years as very similar cases have. Does that mean that the minimum period of imprisonment of 17 years is obviously unfair? Mr Ngatai-Check, I do not think so. It is true that you did not intend to kill Karl but in the case of vulnerable victims such as infants the offender does not often actually intend to kill the victim. There are sadly too many cases like this. The reason there is such a high minimum for this kind of vulnerability is that the key ingredients are the helplessness of the victim and the power of the offender. It is so high because these little people are at our mercy. We can so easily kill them. The minimum is to warn us that we must not lose control around them. The consequences are too grave.
[35] In this case Karl died because he was so small. It was his helplessness and complete reliance on you, combined with your repeated attacks that make this crime so bad. Perhaps it would have been different if there was just one blow in the heat of the moment. But there were three. In two quite distinct phases.
[36] Your counsel and your letter have underscored your remorse today and I have every reason to believe that you are genuine in that and that as a result of the realisation of what you have done your life has changed. That is important but I do not think it is so important that it entitles me to set aside the sentencing direction that Parliament has given in this case.
[37] Previous cases in my view only adopt lower minimum sentences where there was some stand-out feature or features that made the sentence obviously harsh and wrong. Mr Ngatai-Check I regret to say I do not think the factors in your favour show such a stand-out feature or features. Mr Lawson quite rightly argues that I should make an overall assessment. Even if there is not one stand-out feature in combination the story in your favour is powerful. I see his point. But even when I consider all of these factors, as I have gone through them and I have listened carefully to counsel, I do not think that in combination they can be said to shade out Karl’s vulnerability or the viciousness of your attack. These are still in my assessment, and in my mind, the dominant features of your offending.
[38] Mr Lawson very ably argued that you are entitled to parity. That is there are cases much worse than yours with the same 17 year minimum. He is right. But there are also cases very similar to yours treated in the same way. This seems to be a result of the way Parliament has decided the law should be crafted. That of course is little concern of yours but I must sentence in accordance the words of the statute as they are given to me.
[39] I am satisfied that Parliament intended that your case should be covered by the mandatory minimum.
As this Court noted in R v Williams,[8] the presence of mitigating factors under s 9(2) of the Sentencing Act, which include remorse, will rarely displace the s 104 presumption of a minimum term. Williams J accepted that Mr Ngatai-Check was very remorseful. But he was not prepared to allow that factor to displace the s 104 presumption of a minimum term of 17 years.
[8]R v Williams [2005] 2 NZLR 506 (CA) at [66] adopting R v Parrish CA295/03, 12 December 2003.
The Judge had the benefit of conducting the trial and his reasoning on sentence was careful and compassionate. We are not satisfied that he erred. Moreover we agree with his conclusion that in all the circumstances a minimum period of 17 years was not manifestly unjust. The sentence appeal must fail.
Result
Mr Ngatai-Check’s appeal against conviction and sentence is dismissed.
Solicitors:
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington, for Respondent
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