Ngatai v Police - [2015] NZHC 2249

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-41 [2015] NZHC 2249

BETWEEN
TAINA COLIN NGATAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 September 2015

Appearances:

Mr Mills for Appellant
M Jenkins for Respondent

Judgment:

17 September 2015

ORAL JUDGMENT OF TOOGOOD J

NGATAI v NEW ZEALAND POLICE [2015] NZHC 2249 [17 September 2015]

[1] Taina Colin Ngatai, the appellant, pleaded guilty to one charge of possession of cannabis for supply1 and two charges of receiving property over $1000.2 On
17 June 2015 he was sentenced by Judge Jocelyn Munro at the District Court in Rotorua to 9 months’ imprisonment on each charge, to be served concurrently.3 He was subject to standard and post-release conditions for six months after the sentence expiry date as directed by a Probation Officer. Mr Ngatai was also ordered to pay reparation of $447, deferred until 3 months after his release.

[2] Mr Ngatai appeals his sentence on the basis that it is manifestly excessive.

Facts

[3] On 9 March 2015, a burglary occurred at the Outdoorsman Headquarters shop located on Tarawera Road, Rotorua. Property stolen from that burglary included Levi jeans, North Face women’s jackets and Hunters Element jackets. Between 25 February 2015 and 26 February 2015, there was a burglary in
105 Clinkard Avenue, Rotorua. A Panasonic Television and a Panasonic Stereo belonging to Mr Rental were stolen.

[4] On 18 March 2015, the Police conducted a search of Mr Ngatai’s address. In his bedroom, which he shared with his partner, a Ms Forbes, the Police located four pairs of Levi jeans with security tags attached, two Hunters Element jackets, one North Face women’s glacier top and three security and price tags belonging to the Outdoorsman Headquarters. The items were confirmed as being stolen from the Outdoorsman Headquarters during the burglary.

[5] The television and stereo which had been stolen from Clinkard Avenue were also located at Mr Ngatai’s property. The rear of the TV was engraved with Mr Rental and the serial number had been scratched off the stereo, but it still had the
markings of its owner.

1      Misuse of Drugs Act 1975, s 6.
2      Crimes Act 1961, ss 246 and 247.
3      New Zealand Police v Ngatai [2015] NZDC 11733.

[6] A search through the roof of the bedroom located a large plastic box containing dried cannabis and a number of pre-packaged bags of cannabis were also located. The cannabis had a combined weight of 175 grams.

[7] In explanation, Mr Ngatai said he had no knowledge of any of the items at the address. Mr Ngatai and Ms Forbes were charged as parties to the two charges of receiving property over $1000. Mr Ngatai was also charged with possession of cannabis for supply. Both Ms Forbes and the appellant pleaded guilty to the charges they faced.

[8] At the time Mr Ngatai entered the guilty pleas, he was in custody on remand in relation to a number of charges arising from late May 2015. Because he…

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 Ngatai v Police

Details

AGLC: Ngatai v Police [2015] NZHC 2249
Case: [2015] NZHC 2249
Decision Date: 17 September 2015

CaseChat Overview and Summary

In this case, Taina Colin Ngatai, the appellant, appealed against his sentence imposed by Judge Jocelyn Munro at the District Court in Rotorua. Ngatai was sentenced to 9 months' imprisonment on each charge of possession of cannabis for supply and receiving property over $1000, to be served concurrently. The appellant argued that the sentence was manifestly excessive due to the disparity in sentencing between him and his co-offender, Ms Forbes, who received a sentence of 150 hours of community work. The court had to decide whether the disparity in sentencing was so gross and unjustifiable as to suggest a miscarriage of justice and whether the totality of the offending was taken into account.

The court considered the principles of parity and the desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances. The court also examined the test for disparity between sentences of co-offenders, which requires the difference to be unjustifiable or gross. The court found that the Judge's approach to sentencing was within the range that could be properly justified by accepted principles and that the difference in sentencing was understandable given the different circumstances of the offenders. The court also considered the totality of the offending and found that the total effective sentence of nine months' imprisonment was relatively lenient.

The High Court dismissed the appeal, affirming the original sentence imposed by the District Court. The court found that the disparity in sentencing was not so marked as to lead a reasonably minded independent observer to think that something had gone wrong with the administration of justice. The court also found that the totality of the offending was taken into account, and the sentence imposed was within the appropriate range. The final orders were that the appeal was dismissed, and the original sentence of 9 months' imprisonment for each charge, to be served concurrently, was upheld.

Orders