Ngatai v Police
[2015] NZHC 2249
•17 September 2015
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 RespondentJudgment:
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 was in custody, he requested waiver of his right to a pre-sentence report and asked to be sentenced on the basis that the only possible sentence was one of imprisonment.
Judge Munro’s sentencing decision
[9] Judge Munro dealt with the charges for the possession of cannabis and receiving of property together. The Judge sentenced Mr Ngatai on the basis that the only possible sentence could be one of imprisonment because he was in no position to undertake any other sentence. That was because there was no suitable address for EM bail while he was on remand in relation to the May 2015 charges and so he had to remain in custody.
[10] The Judge dealt with the cannabis charge first. She did not believe that the
possession of cannabis was for Mr Ngatai’s personal use only and said:4
The amount of cannabis that was found leads to a legal presumption that it was for supply and I take into account the fact that there were a number of bags that were already packaged which would indicate to me that there was an intention to sell it.
[11] Judge Munro then identified that Mr Ngatai had some history of offending, but nothing of significance that had happened recently, and she set a starting point
4 At [3].
for the possession of cannabis as six months’ imprisonment. She did not add any uplift for the prior offending.
[12] In relation to the receiving charges, the Judge set a starting point of six months’ imprisonment and again decided there would be no uplift. Judge Munro held that the sentences should be assessed cumulatively, being different types of offending and unrelated. The Judge then gave Mr Ngatai a 25 per cent reduction in sentence for his guilty pleas, which resulted in the total sentence of 12 months overall being reduced to one of nine months’ imprisonment. In terms of the orders made, a sentence of imprisonment of that term was imposed on each of the three charges to be served concurrently.
[13] Reparation was also ordered of one half share of the value of the clothing that was taken, that is, $447.95.
Mr Ngatai’s co-offender’s sentence
[14] Mr Ngatai’s partner Ms Forbes was sentenced on the same day as Mr Ngatai by the same judge to 150 hours community work on the two charges of receiving the stolen property, those also to be served concurrently. In her sentencing notes relating to Ms Forbes, Judge Munro acknowledged that she had earlier that day dealt with her co-offender Mr Ngatai. The Judge said, however, that Ms Forbes’s situation was quite different. She was not facing any drugs charges and she did have one dishonesty conviction five years ago on which she was convicted and discharged. The Judge then said she was prepared to deal with Ms Forbes by way of a community-based sentence. She acknowledged that community work was available and that Ms Forbes understood that she needed also to pay reparation for half of the value of the goods received.
Grounds for appeal
[15] Mr Mills for Mr Ngatai has submitted that the starting point of six months’
imprisonment in relation to the charge of possession of cannabis was appropriate.
He also accepts that a sentence of imprisonment was inevitable given the fact that
Mr Ngatai was in custody on unrelated charges.
[16] However, Mr Mills submits that the District Court Judge erred in law by failing to take into account the sentence imposed on the co-offender Ms Forbes. He submits that the disparity between the sentence of imprisonment imposed on Mr Ngatai and the community-based sentence imposed on Ms Forbes was so gross and unjustifiable as to suggest to an independent objective observer that the administration of justice has been miscarried. In that, he was relying on the
judgment of the Court of Appeal in MacFarlane v R, 5 which I will come back to in a
moment. Furthermore, Mr Mills submitted that the Judge failed to take into account
the totality of Mr Ngatai’s offending when assessing the effective end sentence.
Approach to appeal
[17] An appeal against sentence must be allowed if the Court is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.6 The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.7 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.8
[18] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather
than the process by which the sentence is reached.9
5 MacFarlane v R [2012] NZCA 317.
6 Sentencing Act 2002, s 250.
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8 At [33], [35].
9 Ripia v R [2011] NZCA 101 at [15].
Parity principles
[19] Section 8(e) of the Sentencing Act 2002 requires the Court to take into account “the general 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”.
[20] In MacFarlane, the Court of Appeal recently restated the test as to whether disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal. It said:10
Disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”. The difference must be “unjustifiable” or “gross”. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence. (emphasis added and footnotes omitted)
[21] I have emphasised the last sentence because, in the end, that is really what this case is about.
Appellant’s submissions
[22] Mr Mills submits that the Judge erred in determining the starting point for the two charges of receiving property as being six months’ imprisonment. Although it is accepted that a sentence of community work or any community-based sentence was not available, it is argued that the starting point of six months sits uneasily alongside the sentence of 150 hours of community work for the co-offender. Counsel submits that there can be no distinction between the role of Mr Ngatai and the role of his co- offender in the receiving because:
(a) there is nothing to suggest that Mr Ngatai took a more significant role.
The property in respect of both charges was found in the bedroom shared by Mr Ngatai and Ms Forbes.
10 MacFarlane v R, above n 5, at [24].
(b)Judge Munro ordered that Mr Ngatai pay one half a share of the value of the clothing received, indicating that Mr Ngatai and Ms Forbes were equally culpable in respect of the offending.
[23] I accept that the Judge made no distinction between the two offenders; nor could she have done on the facts before the court. But Mr Mills argues that the way in which the Judge approached the two co-offenders meets the threshold of a disparity so unjustifiable and gross that a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice.
[24] In support of his argument, counsel referred to the decision of the Court of Appeal in Singh v R,11 which I read simply as a case in which McFarlane principles were applied. As an alternative argument, Mr Mills submits that the Judge did not take into account the totality of the offending pursuant to s 85 of the Sentencing Act
2002. This requires a court, when imposing cumulative sentences of imprisonment, to ensure that they do not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. Mr Mills argues that the resulting sentence of nine months’ imprisonment overall was out of proportion to the gravity of the overall receiving offending, and it is submitted that if the totality of the offending was taken into account, including with the cannabis charge, it would have been appropriate to reduce the sentence by three to four months to reflect the true culpability of the offender.
Crown submissions
[25] The respondent submits that the starting point of six months’ imprisonment for the receiving charges was well within the range available to the Judge. It relies on two not dissimilar decisions: Ellis v R12 and Vansilfhout v New Zealand Police,13 in which property valued at $5,000 in the first case, and $4,500 in the second case, resulted in the Court regarding an appropriate range as a starting point for receiving
between 12 and 18 months in Ellis and, in Vansilfhout, 18 months to 21 months’
11 Singh v R [2013] NZCA 245.
12 Ellis v R [2012] NZCA 513.
13 Vansilfhout v New Zealand Police HC Rotorua CRI 2006-470-0002, 7 March 2006.
imprisonment. On that basis the Crown submits that the starting point of six months imprisonment was entirely justified in relation to the offending in circumstances where the only possible sentence was one of imprisonment.
Discussion
[26] I accept as reasonable the concession by counsel for the appellant that the cannabis sentence of six months’ imprisonment could not be disputed. The question, therefore, is how the Court should then have approached the fact that Mr Ngatai was also being sentenced for two charges of receiving stolen property. It could have been done by one of two means: either to take the cannabis offending as the lead offence and provide an uplift on the basis of the receiving charges; or to do what the Judge did in this case, namely, to take a cumulative approach to assessing the appropriate overall sentence and then consider the totality principles.
[27] I accept that the value of property taken in this case was markedly less than that involved in the Court of Appeal decisions in Ellis and Vansilfhout, but I note that the starting point adopted by the Judge reflects that difference by being only six months. Given that there were two separate burglaries involved in providing the goods on which the receiving charges were based, I consider a starting point of six months to have been lenient approach. It is certainly not out of kilter with those authorities when Mr Ngatai’s history of offending is considered. Although that offending was historic and occurred at a time when he was a youth offender, the Judge could well have decided an uplift was appropriate. In those circumstances, a starting point of six months’ imprisonment on the receiving charges for Mr Ngatai and for Ms Forbes might be considered to have been lenient in itself. In my view, the Judge would have been entitled to take nine to 12 months as the appropriate sentence on the receiving charges alone.
[28] The discount that the Judge then applied to Mr Ngatai’s total sentence of 12 months’ imprisonment of 25 per cent was orthodox and not disputed by the prosecution. The total effective sentence of nine months’ imprisonment, for two separate types of offending, was entirely within the range and, in my view, relatively lenient.
[29] The emphasis of the Court of Appeal’s test in MacFarlane is on an objective assessment carried out by a reasonable and fair minded observer aware of all of the circumstances relating to the offending and the offenders – and I emphasise all of the circumstances of the offenders. Mr Mills has not been able to indicate to me that the Forbes’ sentence was unjustifiable in terms of the imposition of a community-based sentence. But he is highly critical of the Judge for having imposed a sentence of only 150 hours community work when that could not, by any reasonable argument, equate to six months’ imprisonment.
[30] I agree that in the circumstances of the case 150 hours community work was a lenient sentence, and arguably very lenient. But I come back to the point that I emphasised in the Court of Appeal’s judgment in McFarlane that a lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
[31] As the Court of Appeal has said, sentences of community service have punitive aspects that are intended to be very real and effective alternatives to imprisonment; and they should not regard as sentences which present an insignificant reaction to offending.14 This is reflected in the fact that community work sentences are high up on the hierarchy of sentences. Sentences of community work are designed to achieve the principles associated with imprisonment of accountability, deterrence and denunciation while also promoting a sense of community participation and awareness.15
[32] When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community's safety.16
It follows from this principle that the Court must impose the least restrictive outcome
that is appropriate in the circumstances according to the hierarchy of sentences set
14 R v Rawiri [2011] NZCA 244 at [18]; R v Burton [1982] 1 NZLR 601 (CA); R v Minto [1982] 1
NZLR 606 (CA).
15 R v Rawiri, above n 14, at [17].
16 Sentencing Act 2002, s 16(1).
out in the Act.17 The Court cannot impose a sentence of imprisonment unless it is satisfied that:18
(a) the sentence is being imposed for a statutory purpose or purposes;
(b)that those purposes cannot be achieved by a sentence other than imprisonment; and
(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.
And as the Court of Appeal has said, Judges “will generally strive to avoid a custodial sentence where there is a genuine prospect of rehabilitation, unless other sentencing principles or purposes operate to rule out that option".19
[33] Those principles were all applicable to Ms Forbes’s situation, and no challenge could be made to the Judge’s approach, except possibly to the amount of community work she was required to undertake.
[34] None of those considerations could be applied to the appellant’s position. In my view, the disparity between the two sentences was understandable given that Mr Ngatai’s position was markedly different; and while I accept that Ms Forbes received a very lenient sentence, that does not make the Judge’s approach to Mr Ngatai’s sentencing wrong.
[35] Accordingly, I dismiss the appeal.
………………………….
Toogood J
17 Section 8(g).
18 Section 16(1).
19 R v Rawiri, above n 14, at [22].
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