Ngatoro v The Queen

[2013] NZHC 52

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-21 [2013] NZHC 52

GEROME NGATORO

Appellant

v

THE QUEEN

Respondent

Hearing:         4 February 2013

Counsel:         A W Clarke for the Appellant

J D Lucas for the Respondent

Judgment:      4 February 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr A W Clark, Burnard Bull & Co., Solicitors, Gisborne

Mr J D Lucas, Elvidge & Partners, Office of the Crown Solicitor, Napier

NGATORO V R HC GIS CRI-2012-416-21 [4 February 2013]

[1]      Mr Ngatoro appeals against a sentence of 3 years 4 months imprisonment for a number of offences.   The most serious offence is injuring with intent to injure which has a maximum penalty of 5 years imprisonment.  The appellant was 17 at the time of the offending.

Offences

[2]      There are three groups of offences.  The first occurred on 28 June 2012 at London Street, Gisborne.   This is when the injuring offence occurred.   Directly related to that offence were offences of possession of an offensive weapon – a chair leg, which appears to have been metal – which was used in the assault, and unlawful assembly – there were two co-offenders and, more broadly, there was an altercation between members of two gangs.  Also connected, in a sense, is an offence of wilful damage which occurred just before the assault and involved smashing the back window of a car.  Following the assault the appellant and one of his co-offenders left the property. They armed themselves with molotov cocktails which led to an offence of possession of a restricted weapon. And they unlawfully went into a building.

[3]      The facts relating to those offences may conveniently be taken from the District Court judgment.  This summary relates to the appellant and his co-offenders Thomas Moeke, aged 18, and Iwitoa Gemmell, aged 17. The Judge said:

[5]       The London Street offending occurred on 29 June 2012.  I take this offending as the lead offending for sentencing purposes.  I take the injuring with intent to injure charge as the lead charge for sentencing purposes.  None of you dispute the Crown summaries.  At a party on 29 June 2012 you, and others who were associated with the Mongrel Mob, found yourselves at an address which was also being frequented by members and associates of the Black Power.  Tensions got to the point where early on in the evening there was taunting between the gangs and small fights broke out.  As a result of those tensions and the provocation from both sides, the three of you went to another residence.  You armed yourselves with the batons and chair legs that I have spoken of.

[6]       You returned to London Street.  Once you got there you assaulted the victim.  He was intoxicated at the time.  You struck him to the ground.  You punched and kicked him and struck him with the chair legs that you had brought to the address.  Mr Gemmell, you were not actively involved in that assault.   You had armed yourself and you were actively encouraging Mr Moeke and Mr Ngatoro in the assault that they were carrying out.

[7]       The victim has chosen not to participate in the Court process.  That does not mean that we can relegate the effect of the assault to something that is minor, simply on that basis.   He received cuts to his face and head, bruising to various parts of his body.  The Court cannot ascertain, with any degree of accuracy, how serious those injuries were.  But given the injuries we do know about and the context in which you inflicted them.  They [sic] can only be described as moderate at least.

[8]       The three of you then left the party and went to another address.  Mr Moeke and Mr Ngatoro, you armed yourselves with molotov cocktails. Your intention was to return to the address and set fire to it.  You were distracted, fortunately for all concerned, on the way by a female associate. You decided to go with her to an unoccupied address.  That is where police later found you and that is the unlawfully in a building charge that you face Mr Ngatoro.

[4]      The second group of offences were two offences of wilful damage.  On 14

June 2012 the appellant got angry after an argument with a family member.  He went down the road, smashed the glass door of a theatre with a metal wrench and then smashed the glass door of a nearby school by throwing the wrench through the glass pane in the door.  The cost of repairs from this was around $3,000. A separate matter indicated from these two and some other offences is that the appellant plainly has a serious anger management problem.

[5]      The remaining group of offences comprises two breaches of parole and two breaches of bail. The appellant was on parole, having been released from prison on a sentence of 2 years 6 months imprisonment imposed in May 2010.   The offences were failing to report.

Issues

[6]      The main issues raised on the appeal are helpfully recorded in a concise way

in Mr Clarke’s submissions for the appellant as follows:

(a)      Was the sentence imposed manifestly excessive?   This is directed primarily to a question as to whether the starting point for the lead offence of injuring with intent to injure was manifestly excessive.

(b)Did the learned Judge err by giving disproportionate weight to aggravating   factors   and   insufficient   regard   to   injuries   actually

sustained?   I regard this as an essential part of the enquiry into the first issue.

(c)      Did  the  learned  Judge  err  in  multiplying  a  punitive  effect  of  Mr

Ngatoro’s breaches of parole and offending while on bail?

[7]      Further  issues  are  whether  there  was  sufficient  allowance  made  for  the

appellant’s youth, for his expressed remorse and for a guilty plea.

[8]      For the Crown, Mr Lucas acknowledged that the arithmetical calculation of a

25% reduction for the guilty plea was incorrect to the extent of 2 months, so that there should in any event be a reduction of the end sentence by 2 months.

Judgment under appeal

[9]      The Judge, after setting out the facts relating to the London Street offending – as recorded above – discussed the gravity of the London Street offending, and in particular the injuring with intent, as follows:

[9]       The London Street offending is serious offending.   It involved an attack on a person who was on the ground.  It involved two of you attacking one.  It involved weapons.  You targeted his head.  It was in the context of responding to gang-fuelled tensions.

[10]      The Crown points to the premedition of the attack.   Your counsel have both argued that this cannot be described as a premeditated attack.  It is not premeditated in the sense that you intended to go to the party to cause trouble.   There is no evidence that you did.   But it is premeditated in the sense that having found trouble, the three of you decided to leave the address specifically  for  the  purposes  of  arming  yourselves.     Having  armed yourselves you made a decision specifically to go back and use those weapons.   Having left the address again, two of you armed yourselves specifically with molotov cocktails.  You did so specifically with the intent of going back and causing even greater damage than you had already caused.

[11]      In respect of the assault on your victim, this falls within the second category of offending set out in R v Harris [2008] NZCA 528. Mr Moeke and Mr Ngatoro, your counsel has pointed to other cases which have adopted a lower starting point than that which I am about to adopt. All cases need to be determined on their individual facts. There are points between the cases that are common with this case. There are other factors that are not present in this case and vice-versa. R v Taueki [2005] 3 NZLR 372 presents a clear categorisation of offending. It is based primarily on the extent of the injuries but not totally so. Exactly where your offending falls in terms of which

category and how far into the category can only be assessed by the particular circumstances of this case.  For the aggravating features that I have already described I consider that for each of you the starting point with those aggravating features is three years’ imprisonment.

[10]     As will be apparent, this was a discussion applying in broad terms to all three offenders.  The co-offenders were sentenced at the same time.  The Judge then dealt further with Mr Ngatoro’s particular circumstances, both in respect of further offending and personal factors, as follows:

[14]     Mr  Ngatoro  you  also  face  additional  London  Street  charges: possession of a restricted weapon, namely the molotov cocktail; being unlawfully in a building; and wilful damage.  You were on parole at the time of your offending at London Street.   That needs to be recognised by an increase in the starting point and significantly so.  The starting point in your case, to recognise those additional factors, goes up to four years six months’ imprisonment.

[15]      You also face two other charges of wilful damage.  That relates to the incident that occurred on 15 June 2012 where you damaged the property of Unity Theatre and Montessori School.   That act is aggravated by the extent of the damage and the loss, $3000-odd, you caused.  You are not in a position to make any reparation and there is no prospect of the owners getting anything from you as a result of all of that.  You also face charges of breach of parole and intentionally damaging a  motor vehicle as well as charges of breach of bail.   All of those warrant ordinarily significant individual uplift.  I need to apply the totality principle that means that any uplift needs to be kept in proportion with what is an appropriate penalty for your overall offending and so I reduce what would otherwise be a significant uplift. The starting point for you is four years 10 months’ imprisonment.

[16]     You also were young at the time, aged 17.  That also is reduced by your previous convictions and the fact that you were on parole at the time of the London Street offending.   Nevertheless I give you a discount to mark your youth all the same and that is to four years three months’ imprisonment. You have made some unfortunate remarks in your pre-sentence report but I understand fully the context in which you made those remarks.  I understand the sorts of reasons that prompt you to act and speak in the way that you have.  What I do take note of is the letter that you have provided me and that is something that is a lot more encouraging.   For your guilty plea and the expression of remorse I give you a discount of 25 percent.

[11]     As  earlier  recorded,  the  final  sentence  for  injuring  with  intent  was imprisonment for 3 years 4 months.  The sentence for all other offences was 1 month imprisonment, with those sentences to be served concurrently.

Submissions

[12]     The earlier outline of issues contains the main points made by Mr Clarke for the appellant.  For the respondent, Mr Lucas submitted that the Judge’s starting point and the various adjustments he made were within range having regard to the number of offences and the relative gravity of them.

[13]     Central to Mr Clarke’s primary submissions in relation to the starting point

for the lead offence is the Court of Appeal decision in R v Harris1 as follows:

[10]      An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this  basis,  we  envisage  bands  and  starting  point  sentences  (ie  before allowance for personal aggravating and mitigating factors) as follows:

Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

Band two: where the injuries are moderate, sentences of up to two

years’ imprisonment can be justified;

Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

[11]      Beyond the extent of the injury, the appropriate starting sentence will depend  upon  the  effect  that  any  additional  aggravating  and  mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

1 R v Harris 2008 NZCA 528 (CA).

[14]     Mr Clarke referred to a number of decisions applying Harris.  I have taken account of these decisions.  I will list them without going into the detail.  They are: Neho,2  Ross,3  Winklemann,4  Eden,5  Schuster,6  Bennett7  and McEwen.8    I have also taken account of two particular cases referred to by Mr Lucas.  They are:  Wright v Police9 and Annas v R.10

[15]     Mr Clarke submitted that the cases he referred to all indicate that the starting point adopted by the Judge in this case was too high to the point of being manifestly excessive.  Mr Clarke also submitted that some of those decisions also indicate that the uplift applied by the Judge was too high.

[16]     Other  points  in  the  submissions  of  both  counsel  I  will  pick  up  in  the discussion of the issues, to which I now come.

Discussion

[17]     The offence of injuring with intent to injure is plainly the lead offence.  The injuries  were  moderate.    The  Judge,  as  earlier  recorded,  held  that  they  were “moderate at least”.  The fact that the victim chose not to cooperate does not of itself mean that an assessment as to the gravity of the injuries cannot be made.  On the other hand the gravity of the injuries cannot be assessed beyond the available information.   The summary of facts records that the cuts to the face noted by the Judge were “small cuts”.   The summary of facts, to which the appellant pleaded guilty,  also  records  that  the victim  did  not  seek  any medical  attention.    In  my

judgment the injuries can only be described as moderate at most.

2 Abraham Neho v R CA656/2009, 15 February 2010.

3 Ross v R CA315/2010, 20 July 2010.

4 Kurt Tamati Winklemann v R CA153/2010, 28 May 2010.
5 Eden v R CA542/2010, 7 March 2011.

6 Schuster v R CA94/2011, 26 July 2011.
7 Bennett v R CA548/2011, 8 May 2012.
8 R v McEwen CA472/2009, 12 November 2009.
9 William Wright v New Zealand Police HC Whangarei CRI-2009-488-000047, 20 October 2009.

10 Wendy Joanne Annas v R CA675/2010, 8 March 2011.

[18]     The Court of Appeal’s decision in Harris11 involves an analysis of one aspect of the Taueki12 decision – fixing a starting point by reference to the injuries imposed. As the Harris decision makes clear, that is not the end of the enquiry and the Judge quite properly looked also to aggravating factors in addition to the injuries inflicted.

But confining the analysis at this point to the gravity of the injuries, and on the basis that they were moderate, Harris indicates that the starting point would not exceed 2 years imprisonment.  As with all tariff decisions indications such as these are not to be treated as rigid limits.   But it is an important indication of an upper limit in relation to injuries inflicted.  In respect of moderate injuries 2 years, therefore is in broad terms the upper limit for the most serious of moderate injuries, if one can use such an expression.

[19]     If the injuries in this case are assessed in isolation, in my judgment the starting point would be significantly below 2 years.  By reference to the other cases I have been referred to, in my judgment the starting point should not be more than 12 to 18 months. And I would emphasise that a reference of a range of 12 to 18 months is in fact quite a substantial range.   By that I mean that an additional 6 months imprisonment  is  a  substantial  addition  when  dealing  with  an  offence  with  a maximum penalty of 5 years imprisonment.

[20]     The uplift  for aggravating  factors beyond  the  extent  of injuries  must  be confined to the offence being dealt with.  In this case it is the offence of injuring with intent.   At paragraphs [10]-[11] the Judge appears to have included the molotov cocktail offence in his assessment of the gravity of the injuring offence.  He certainly referred to it in that context and appears to have regarded this as a significant aggravating factor.  But the molotov cocktail offence is not an aggravating feature of the assault.  It was unrelated to the assault and in fact occurred after the assault.  It is not an act connected with the victim of the assault at all.

[21]     The aggravating factors include, in particular, the use of a weapon (by the appellant and Mr Moeke), the fact that the assault involved two people with others

being involved as parties, an assault to the head as well as other parts of the body,

11 R v Harris above n 1.

12 R v Taueki [2005] 3 NZLR 372 (CA).

and some pre-meditation in that the appellant and Mr Moeke armed themselves with the chair legs.  In respect of the last point the Judge does appear to have been in error when he said that the offenders left the property to get weapons.   The admitted summary of facts says that they armed themselves with the chair legs after they got to the address.

[22]     In my judgment the starting point, if assessed solely by reference to the injuries inflicted, should not be more than 15 months imprisonment.  The uplift for the other aggravating factors in my judgment should not be more than 6 to 9 months imprisonment.  In respect of the aggravating factors this is a case where the longer period should be imposed.  That results in a starting point of 24 months for the lead offence.   Standing back and looking at this particular offence in relation to the maximum penalty of 5 years imprisonment, I also consider that the starting point of

2 years imprisonment is appropriate.

[23]     There must be an uplift for the other offences.  Mr Clarke, of course, takes no issue with that proposition.  The broad submission is that the uplift applied in this case is too much.   Because I have concluded that the starting point for the lead offence was manifestly excessive, and because there is a submission in relation to possible double counting, I do consider it is appropriate also to undertake this part of the exercise afresh.

[24]     There is need in applying an uplift to avoid double counting.  The unlawful assembly was in considerable measure part and parcel of the fact that these three men went to the property together, with the appellant and Mr Moeke encouraged it seems by Mr Gemmell, who had been there earlier and left because of an incident affecting him.  The unlawful assembly is also contained in reasonable measure in the aggravation of the assault from its having been carried out by more than one person and  with  others  encouraging  them.    Similarly  the  offence  of  possession  of  an unlawful weapon – the chair leg – is contained in the aggravating factor of using a weapon in the assault.

[25]     The molotov cocktail offence is serious.   However, its gravity needs to be assessed in relation to the facts as a whole.  The gravity is diminished somewhat by

the fact that the appellant was easily distracted by the young woman they met. Having armed themselves with molotov cocktails they then went off to have sex with her and forgot about whatever plans they had earlier formed.

[26]     All of the offences that night – other than the lead offence – would in my judgment not justify an uplift of more than 6 to 9 months after applying the totality principle.

[27]     The other offences would justify at most a further 6 to 9 months.

[28]     Overall – and allowing for totality overall – in my judgment the uplift for the other offending should be 15 months imprisonment.  Added to the starting point of

24 months imprisonment for the lead offence, that produces a total of 3 years 3 months imprisonment.

[29]     The appellant’s previous offences do, to an extent, offset the total reduction that might otherwise apply because of youth.  Previous offences include two offences of aggravated robbery, one of robbery with assault and two of common assault. These offences occurred when the appellant was aged between 14 and 15 years.  Mr Clarke advised me that the appellant was initially being dealt with in the Youth Court and, it seems, on the robbery that occurred first in time.   However, the further offences occurred while he was before the Youth Court leading to the sentence in the end being imposed in the District Court.  The sentence imposed in respect of these offences committed when he was aged between 14 and 15 years was imprisonment for 2 years 6 months.  I have not been provided with any detailed information about these earlier offences, save for the information that Mr Clarke was able to provide.  I therefore need to be cautious in relation to any assessment of these earlier offences. But imprisonment for a period of 2  years and  6 months in respect of offences committed when a person is aged 14 and 15 years does seem to be a very stern sentence.

[30]     I will come back to the relationship of these earlier offences to the question of reduction for youth.

[31]     There is also a question of remorse.  The Judge accepted that expressions of remorse by the appellant warranted some weight.  I consider, with respect, that that is entirely appropriate having regard to his youth.  However, the reduction allowed for the expression of remorse was contained in the 25% reduction for the guilty plea. The guilty plea was entered seven days after the appellant’s first appearance in Court.  There is no issue that he is entitled to the maximum reduction of 25%.  For this reason in my judgment there should be some separate recognition for the expressions of remorse.  This can also be regarded as a reduction in an endeavour, so far as is possible, in imposing a sentence, to seek to encourage this young man to take a grip on his own life and get out of the spiral of increasingly serious offending that he seems to have got into. The pre-sentence report indicates that he has not been given any adequate direction in life.  There has been alcohol and drug abuse.  There is a gang background and gang aspirations.  Continuing in this way with continuing serious offending is bound to result in further sentences of imprisonment of greater length. Against this I note that, on the basis of the information before me, there does not appear to have been any State intervention for this appellant of any consequence save imprisonment.  Not to put too fine a point on it this can only be described as depressing.   Nothing will be achieved by imposing sentences of imprisonment of ever increasing length in respect of a person who has been in prison, in effect, from the age of about 16.

[32]     Weighing the relevant principles and purposes of sentencing in respect of this young man, and seeking to encourage him to get a grip on his own life as best as the Court can encourage him, I consider that there should be a reduction in the sentence because of his youth and the expression of remorse of 10 months.   From the 39 months importation earlier referred to, that would result in a sentence of 29 months.

[33]     The appellant is then entitled to a reduction of 25% for the guilty plea.  That produces an end sentence for the lead offence, with an adjustment upwards in the percentage calculation, of 21 months imprisonment.

[34]     The appeal is accordingly allowed.   The sentence imposed in the District

Court of 3 years 4 months for injuring with intent to injure is quashed.  In respect of

that offence a sentence of 1 year 9 months imprisonment is substituted.  The other

sentences remain as imposed in the District Court.

Woodhouse J