Ngataki v Police
[2022] NZHC 1952
•9 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-000098
[2022] NZHC 1952
BETWEEN CURTIS GORDON NGATAKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 August 2022 Appearances:
B Shamy for the Appellant
G Alloway for the Respondent
Judgment:
9 August 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 9 August 2022 at 3.30 pm.
Registrar/Deputy Registrar Date:
NGATAKI v NEW ZEALAND POLICE [2022] NZHC 1952 [9 August 2022]
Introduction
[1] The appellant, Curtis Ngataki, was sentenced in the District Court to two years and two months’ imprisonment for the following charges1 — two charges of driving while disqualified (third or subsequent);2 unlawful taking of a motor vehicle;3 impeding breathing;4 assault on a person in a family relationship;5 threatening to kill;6 and causing harm by posting a digital communication.7
[2] Mr Ngataki appeals his sentence on the ground that it is manifestly excessive. He does so on a discrete issue, namely that the Judge ought to have applied a 15 per cent discount for matters raised in the s 27 cultural report. The Judge had applied a 10 per cent discount.
Facts
[3]This offending occurred over multiple instances in late 2021.
[4] Around 7.30 pm on 30 October 2021, Mr Ngataki and the victim were intoxicated and in the victim’s hotel room. An argument broke out, and Mr Ngataki threw the victim to the ground. After pushing the victim again, he placed one hand around her neck and applied such force that she could not breathe. At the same time, Mr Ngataki’s free hand was used to gouge the victim’s right eye. The victim received a haemorrhage in her right eye, kidney pain and other aches.
[5] On 20 November 2020, while still disqualified from driving, Mr Ngataki drove himself and the victim to a hotel in the victim’s car. Another argument ensued and, when the victim said she would leave, Mr Ngataki took her phone and went outside. The victim followed, asking the hotel’s duty manager for help. Noticing the duty
1 Police v Ngataki [2022] NZDC 10402.
2 Land Transport Act 1998, ss 32(1)(a) and (4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000. A disqualification from holding or obtaining a drivers’ licence of at least one year must be imposed.
3 Crimes Act 1961, s 226; maximum penalty seven years’ imprisonment.
4 Crimes Act 1961, s 189A; maximum penalty seven years’ imprisonment.
5 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
6 Crimes Act 1961, s 306; maximum penalty seven years’ imprisonment.
7 Harmful Digital Communications Act 2015, s 22; maximum penalty two years’ imprisonment or a fine not exceeding $50,000.
manager making a call, Mr Ngataki began walking down Lincoln Road and yelling at the victim for having the police called. He also threatened to kill the victim and her family before running off down the road. Upon returning, Mr Ngataki demanded the victim’s wallet and, when she refused, demanded she get in the car with him. He got in the victim’s car without her permission and drove off, damaging the car in the process and taking the victim’s cell phone and keys.
[6] Mr Ngataki used this phone to post naked photographs of the victim to her Facebook page, which remained publicly visible for about half an hour.
[7]It goes without saying that aspects of this offending are serious.
Principles on appeal
[8] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and a different sentence should be imposed.8 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.9 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
District Court decision
[9] Taking the impeding of breath and associated assault as the lead charges, the Judge adopted a starting point of two years’ imprisonment. This reflected the loss of breath suffered by the victim and level of applied force indicated by the bruising.
[10] Uplifts of six months were applied for the driving while disqualified charges and the threat to kill.
8 Criminal Procedure Act, ss 250(2) and 250(3).
9 Ripia v R [2011] NZCA 101 at [15].
[11] The posting of intimate pictures on the victim’s Facebook page, which were seen by her son, attracted an uplift of eight months’ imprisonment.
[12] A final uplift of two months was applied to reflect Mr Ngataki’s previous offending. However, following a totality adjustment, the starting point was reduced to three years and four months’ imprisonment.
[13]A discount of 25 per cent was given for the guilty plea.
[14] The Judge canvassed numerous elements of the cultural report, including Mr Ngataki’s exposure to gang and family violence as well as abuse of drugs. The Judge accepted these but raised concerns about the extent of self-reporting involved, particularly as it pertained to the rehabilitative efforts Mr Ngataki had made in the past and planned to make. He applied a 10 per cent discount for the cultural report matters.
[15] The Judge therefore applied a total discount of 35 per cent, leading to an end sentence of two years and two months’ imprisonment.
Submissions
Appellant’s submissions
[16] Counsel for Mr Ngataki, Mr Shamy, did not take issue with the Judge’s starting point, nor the various uplifts. The appeal focused exclusively on the discount applied for Mr Ngataki’s cultural circumstances.
[17] In arguing that the Judge should have applied a greater discount for the matters contained in the cultural report and should have considered the merits of home detention, Mr Shamy contended that three errors were made by the Judge.
[18] First, the Judge did not afford sufficient recognition to Mr Ngataki’s self-reported history of having been subjected to violence and other forms of abuse. In other words, the Judge was sceptical of the reliability of Mr Ngataki’s statements to the report writer. Mr Shamy argued that abuse can often be difficult to corroborate, particularly where those most able to corroborate may have a vested interest in denying
it occurred. He also submitted there was in fact corroboration in the form of Mr Ngataki’s mother’s letter, wherein she confirmed Mr Ngataki’s account.
[19] Second, the Judge ought not have been sceptical of Mr Ngataki’s rehabilitative aspirations as recorded by the s 27 report writer. Mr Shamy argued the Judge placed too much weight on the presentence report wherein Mr Ngataki denied or minimised his offending. Mr Shamy noted that the cultural report, provided months after the presentence report, contained reference to greater ownership of the offending by Mr Ngataki. Additionally, Mr Shamy argued one of the purposes of rehabilitation is to help an offender gain insight into their offending.10
[20] The third error, Mr Shamy argued, was a failure to re-examine sentencing principles in light of the cultural report. For instance, s 8(i) which provides for a court to account for an offender’s background when imposing a sentence or otherwise dealing with an offender with a rehabilitative purpose.
[21] An increase in the discount for the cultural report from 10 per cent to 15 per cent would be more than tinkering, Mr Shamy submitted, due to it making home detention available for the Court’s consideration. To this end, Mr Shamy argued for home detention’s rehabilitative potential, with reference to the pillars of Māori health and wellbeing within the framework of Te Whare Tapa Whā.
Respondent’s submissions
[22] First, Mr Alloway submitted the Judge’s concerns around the self-reported aspects of the cultural report pertained to the steps Mr Ngataki contended he had taken or intended to take to address his offending by way of rehabilitation, not his background of abuse which the Judge plainly accepted had occurred.
[23] Second, Mr Alloway submitted the Judge did not err in the weight he placed on Mr Ngataki’s minimisation of the offending in the presentence report. Mr Alloway said the Judge was entitled to look at the history of Mr Ngataki’s approach to his
10 Ranford v Police [2021] NZHC 132 at [24].
offending (including insight and rehabilitation) on the basis that past behaviour is recognised to be a reliable predictor of future behaviour.
[24] Third, Mr Alloway submitted that it is clear from the decision that the Judge did appropriately apply all the relevant purposes and principles of the Sentencing Act 2002.
Analysis
Starting point
[25] No issue was taken by either counsel with the starting point and relevant uplifts adopted by the Judge. I consider these were within the appropriate parameters available to the Judge.
Cultural report
[26] The rationale behind, and value of, cultural reports is well-trodden ground. Understanding the background of an offender may warrant a discount to reflect matters such as a reduction in moral culpability or scope for rehabilitation. There does need to be a causal nexus between the offending and the matters identified in the cultural report, although this nexus does not need to be strong or extensively evidenced.11
[27] Mr Ngataki’s report reveals several matters. He was exposed to, and was a victim of, domestic violence from a young age. Normalisation of violence appears throughout his childhood and adolescence. He was also exposed to gang life and drug usage in his youth. In short, he was not protected by the adults in his life throughout his childhood.
[28] As to his adulthood, the report records that when Mr Ngataki was released from prison in 2019, he “spoke of being motivated to attain employment and become independent”. For several reasons enumerated in the report, this did not ultimately occur.
11 Waikato-Tugeha v R [2021] NZCA 503 at [51].
[29] The report dedicates a section to rehabilitation. While on remand, Mr Ngataki expressed a desire to engage in programmes on gang management and counselling and to be involved in a restorative justice process.
[30] However, of equal note is that Mr Ngataki has failed to complete a preventing violence course and “bailed early” on a course of residential rehabilitation with Higher Ground.
[31] In short, there is no proven record of Mr Ngataki actively initiating or completing any rehabilitation in his adult life.
Did the Judge err?
[32] I am satisfied the Judge did accept Mr Ngataki’s account of his upbringing and the harm he was exposed to. He also acknowledged the nexus between Mr Ngataki’s traumatic upbringing and his offending.
[33] The Judge was sceptical of Mr Ngataki’s recent acceptance of culpability for the offending and his articulated commitment to engage in rehabilitation. That was open to the Judge on the basis of past failures by Mr Ngataki when offered opportunities to rehabilitate.
[34] The Judge did not make express reference to specific sections of the Sentencing Act. However, nothing in the judgment indicates the Judge was not abreast of all the relevant sentencing principles. For instance, when dealing with the cultural report, the Judge clearly considered issues of both reduction in moral culpability and possibilities for rehabilitation.
[35] Properly accounting for s 27 reports is a highly fact-specific enterprise, which can make drawing from analogous cases difficult.12 Nevertheless, particularly within
12 Whittaker v R [2020] NZCA 241 at [51].
the context of offending involving reasonably serious violence,13 a discount of 10 per cent to account for the cultural report is within range and appropriate.14
[36] Mr Ngataki’s offending and lack of compliance with previous sentences also militated against any higher discount.
[37] In summary, I am satisfied the Judge did not err in applying a 10 per cent discount for cultural and rehabilitative factors in this case.
Conclusion
[38]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitors, Christchurch CC:
B Shamy, Christchurch
13 R v Patangata [2019] NZHC 744 at [44]; and Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [57].
14 Whittaker v R, above n 12; Solicitor General of New Zealand v SC [2017] NZHC 2252; Solicitor- General v Napia [2019] NZHC 742; Court-Clausen v R [2020] NZCA 488; and Solomon v New Zealand Police [2019] NZHC 2668.
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