Ngataki v Police - [2022] NZHC 1952

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,…

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.

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Details

Case: [2022] NZHC 1952
Decision Date: 9 August 2022

CaseChat Overview and Summary

Curtis Ngataki appeals his two years and two months' imprisonment sentence for multiple charges, including driving while disqualified, unlawful taking of a motor vehicle, impeding breathing, assault on a person in a family relationship, threatening to kill, and causing harm by posting a digital communication. The appeal focuses on the ground that the sentence is manifestly excessive, specifically arguing that the District Court Judge should have applied a 15 per cent discount for the matters raised in the s 27 cultural report, rather than the 10 per cent discount applied. The High Court considered whether the District Court Judge erred in applying a 10 per cent discount for cultural and rehabilitative factors.

The High Court found that the Judge did accept Mr Ngataki’s account of his upbringing and the harm he was exposed to, and acknowledged the nexus between Mr Ngataki’s traumatic upbringing and his offending. However, the Judge was sceptical of Mr Ngataki’s recent acceptance of culpability for the offending and his articulated commitment to engage in rehabilitation, based on Mr Ngataki’s past failures when offered opportunities to rehabilitate. The High Court held that a 10 per cent discount to account for the cultural report was within range and appropriate, particularly within the context of offending involving reasonably serious violence. The Court found that Mr Ngataki’s offending and lack of compliance with previous sentences also militated against any higher discount.

The appeal was dismissed, and the original sentence stands.

This case highlights the importance of considering an offender’s background and cultural factors when imposing a sentence, but also the need for scepticism where there is a history of non-compliance with previous sentences and opportunities for rehabilitation. The Court found that a 10 per cent discount for cultural and rehabilitative factors was appropriate in this case, and that the District Court Judge did not err in applying this discount.

Orders