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…

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 Ngatoro v The Queen

Details

AGLC: Ngatoro v The Queen [2013] NZHC 52
Case: [2013] NZHC 52
Decision Date: 4 February 2013

CaseChat Overview and Summary

Ngatoro appeals against a sentence of 3 years 4 months imprisonment imposed for a number of offences, the most serious being injuring with intent to injure, which has a maximum penalty of 5 years imprisonment. The appellant was 17 at the time of the offending. The main issues raised on the appeal were whether the sentence imposed was manifestly excessive, whether the learned Judge erred by giving disproportionate weight to aggravating factors and insufficient regard to injuries actually sustained, and whether the learned Judge erred in multiplying the punitive effect of Ngatoro’s breaches of parole and offending while on bail. The Judge, after setting out the facts relating to the London Street offending, discussed the gravity of the London Street offending, and in particular the injuring with intent, and the starting point for the lead offence of injuring with intent to injure was four years three months’ imprisonment. The court found that the starting point was manifestly excessive, and that the uplift applied by the Judge was too much. The court also found that there should be some separate recognition for the expressions of remorse. 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, and 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.

Orders