Ngawati v Police HC Rotorua CRI-2011-463-46

[2011] NZHC 1601

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-46

BETWEEN  HARE WILLIAM NGAWATI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 August 2011 (Heard at Hamilton)

Counsel:         F Wood for Appellant

S Simmers for Respondent

Judgment:      15 August 2011

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Davys Burton, Rotorua –  [email protected]

Crown Solicitor, Rotorua –  [email protected]

NGAWATI V NEW ZEALAND POLICE HC ROT CRI-2011-463-46 15 August 2011

[1]      Hare William Ngawati pleaded guilty to fifteen charges on 18 April 2011.

They were:

Four charges of theft from a motor vehicle between 12 and 21 February 2011.

The maximum penalty for those offences is seven years imprisonment.

Two charges of receiving amounts over $1,000 on 4 and 12 February 2011.

The maximum penalty is seven years imprisonment.

Two charges of receiving goods to the value of between $500 and $1,000 on

11 and 19 February 2011. The maximum penalty is one year imprisonment.

Three charges of receiving goods of value under $500 on 11, 18 and 21

February 2011. The maximum penalty is three months imprisonment.

One charge of dishonestly using a document on 13 February 2011.   The

maximum penalty is seven years imprisonment.

Breach of release conditions on 22 November 2011.  The maximum penalty

is one year imprisonment.

Breach of bail on 16 February 2011.   The maximum penalty is one year

imprisonment.

Intimidation on 9 January 2011.    The maximum penalty is three months

imprisonment.

[2]      Judge McElrea[1] sentenced the appellant to three years imprisonment. Against that sentence he now appeals on the ground that it is manifestly excessive.

[1] New Zealand Police v Ngawati District Court Rotorua CRI-2011-063-000990, 9 June 2011.

[3]      The sentence of three years imprisonment was comprised as follows:

(a)      Two  years  six  months  imprisonment  on  the  theft  and  receiving charges.

(b)Three months imprisonment for using a document, cumulative on the sentence of two years six months imprisonment.

(c)      Three months imprisonment on the breach of bail, breach of release conditions  and  the  intimidation  charge,  also  cumulative  on  the sentence of two years six months imprisonment.

[4]      The  Judge  also  imposed  a  minimum  period  of  imprisonment  of  twenty months imprisonment, equivalent to two thirds of the sentence of two years six months imprisonment.  He ordered reparation totalling $7,900 comprising amounts of $2,900, $2,800, $1,300 and $900.  (This is not challenged on appeal).

Factual background

[5]      The factual background to the dishonesty offending is that between 13 and 21

February  2011  Mr  Ngawati  was  involved  in  what  the  Crown  described  in submissions as a “systemic spree of offending, targeting mobile property and tourists”.  I do not propose to outline in detail the facts of each offence.  They have a common theme.  Mr Ngawati targeted the vehicles of a Swiss couple, a couple from the United States, two tourists from the United States and an Australian tourist.  He broke into their vehicles and stole items including back packs, travel documents, wallets, electronics and other personal items, in each case having some considerable value, between $1,500 and $3,000 estimated.

[6]      The receiving charges, seven in number, followed from the execution by police of a search warrant at Mr Ngawati’s address on 23 February 2011 when they located items belonging to the victims of seven separate thefts which occurred in Rotorua, essentially in the tourist area, between 4 February and 21 February 2011.

[7]      The charge of dishonestly using a document arose from Mr Ngawati on 13

February 2011 using the Visa card stolen from a wallet earlier in the day to try to

withdraw $800 from an ATM machine at the ANZ Bank on the corner of Hinemoa and Amohia Streets in Rotorua.  He was unsuccessful.

[8]      The other three charges relate to events in Christchurch.  On 9 January 2011

Mr Ngawati and an associate approached a vehicle in which the victim was seated. He began to yell, swear and abuse the female victim causing her to feel very frightened and threatened.

[9]      The breach of release conditions arose from Mr Ngawati failing to report on 2 and 16 November 2010, and again on 22 November 2010 after he had been given warning letters, following his release from prison on 22 September 2010.

[10]     The breach of bail appears to have arisen from his failure to attend Court as required on 16 February 2011.

Personal circumstances

[11]     Mr Ngawati has forty seven previous convictions including those in the youth jurisdiction.   He has about sixteen previous convictions for burglary, one for shoplifting, one for receiving, six for unlawfully taking motor vehicles and about four non-compliance convictions.  He also has convictions for driving offences, drug and violence offences, although these are less frequent than the dishonesty offending. He has amassed these convictions over a period of approximately seven years between 2002 and 2009. So now at the age of 23 years he has a significant criminal history.

[12]     The probation officer notes in the pre-sentence report that approximately thirty nine per cent of his offending, including in the youth jurisdiction, is dishonesty offending.  The appellant has expressed remorse but the report writer assesses him as having a misguided sense of entitlement and notes his history of non-compliance. The probation officer considers that despite his professed desire to make changes, he has low motivation to do so.  He is assessed at high risk of re-offending.

Sentencing decision

[13]     Judge  McElrea  noted  that  the  maximum  penalties  for  the  charges  the appellant faced range between seven years imprisonment through to one year and three months imprisonment for the less serious charges.  He considered this was a serious bout of criminal offending for someone of Mr Ngawati’s age.  He noted Mr Ngawati’s substantial dishonesty record and the fact he had served sentences of imprisonment a number of times.  He considered it a particularly aggravating factor that Mr Ngawati was targeting tourists in his theft and receiving offending.  He noted that New Zealand, and Rotorua in particular, are highly dependent on tourism and this type of offending is an attack on the community generally.   He regarded the letters of remorse from Mr Ngawati as “hollow words”.   He said they appeared meaningless against his history of offending.  He considered there was a need for a strongly deterrent sentence.

[14]     The Judge considered the offending “in its totality” and adopted a starting point of four years imprisonment.  He acknowledged that Mr Ngawati had a young child who was sick.   He also noted the apologies Mr Ngawati had offered.   He allowed a small discount for these factors, which though not particularised, would have been three months, and a twenty per cent discount for the guilty pleas.  The final sentence was three years imprisonment comprised of two years six months on the theft and receiving charges, three months cumulative for the use of a document charge and three months cumulative on the breach of bail, breach of release conditions and intimidation charge which he treated together in constructing the sentence.

[15]     The Judge then imposed the minimum period of imprisonment of twenty months to which I have referred, stating the importance of denunciation, deterrence and protection of the public.

Submissions

[16]     Mr Wood for Mr Ngawati submitted that the sentence is manifestly excessive on three main fronts:

(a)      That all the theft and receiving charges were lumped together and no recognition was given to the fact that some of the receiving charges had maximum penalties of only one year or three months imprisonment.

(b)The starting point of four years was adopted without any reference to authorities.

(c)      The starting point took into account factors personal to Mr Ngawati such as his previous offending.

(d)There appeared to be some double counting in relation to the Judge’s references to Rotorua being a tourist town and the upcoming Rugby World Cup.

[17]     Mr  Wood  also  submitted  that  the  cumulative  sentence  for  the  using  a document charge was inappropriate.  He submitted this charge related to offending inextricably linked with the theft offending because the Visa card used was obtained the same day as the result of the theft from a motor vehicle.   He submitted this offending should not have attracted a cumulative sentence.

[18]     Counsel also submitted that the cumulative sentence of three months for the breach  charges  and  the  intimidation  charge was  excessive because this  was  the maximum penalty for the intimidation charge.   However, Mr Wood acknowledged that it appeared the Judge had treated these three offences together in applying a three months cumulative sentence and that cumulative sentences for this unrelated offending were available.

[19]     No  issue  was  taken  with  the  discounts  allowed.    However,  Mr  Wood submitted that the minimum non parole period was manifestly excessive.  He noted that counsel had not been given an opportunity to address this matter in submissions and it was imposed by the Judge without discussion or warning.  He submitted that given the approach to sentencing adopted by the Judge where the starting point

clearly reflected the Judge’s focus on deterrence, denunciation and protection of the public, a minimum non parole period in addition was not justified.

[20]     The Crown submitted that the starting point of four years imprisonment, whilst stern, was appropriate to reflect the totality of the offending.   Further, that imprisonment was the only appropriate outcome and even if the sentence had been two years or less home detention (as advanced on sentencing) would not have been an appropriate response.

[21]     Mr Simmers also submitted that given Mr Ngawati’s recent release from prison for dishonesty offending the discretion exercised by the Judge under s 86(2) to impose a minimum period of imprisonment for the purposes of deterrence and protection of the public was appropriate, because detention beyond the minimum non parole period of ten months that would otherwise apply on the basis of the sentence imposed, was justified for the purposes in s 86(2).

Approach on appeal

[22]     On an appeal against sentence under s 121(3)(b) of the Summary Proceedings Act 1957, the Court will interfere with a sentence only if it is clearly excessive or inadequate or inappropriate.[2]    Whether a sentence is manifestly excessive is to be examined in terms of the sentence imposed rather than the process by which the sentence is reached.[3]

Discussion

[2] R v Brooks [1950] NZLR (CA) at 659.

[3] R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

[23]     Judge McElrea’s sentencing approach was unconventional.   He adopted a starting point of four years for the totality of the offending and it appears he took into account in doing so, the offending history of the appellant.  Nonetheless on appeal the focus must be on the end sentence rather than the process by which that sentence

was reached.

[24]     The Crown has referred to several cases which are of assistance. In Ropiha v Police.[4] there was a guilty plea to one count of theft.  Ropiha broke into a tourist bus and took personal items and electronics valued at $2,500 and cash to the value of

$2,500.  He was subsequently found in possession of the missing items.  He had 76 dishonesty offences by the age of 21.  On appeal the four year starting point adopted by the sentencing Judge was considered to be too high and a substituted starting point of two years six months imprisonment was adopted. The end sentence was two years imprisonment.

[4] Ropiha v Police HC Rotorua CRI-2004-463-74, 22 July 2004.

[25]     In Stickings v Police[5]  there were guilty pleas to eight charges of receiving. They involved property of $500 or more stolen from tourists in the Rotorua area. There was a reparation amount reached by discussion with the police of just under

$10,000.   The starting point taken by the sentencing Judge of three years imprisonment was not challenged on appeal and the final sentence of two years three months was upheld.

[5] Stickings v Police HC Rotorua CRI-2007-463-79, 6 July 2007.

[26]   Finally, in Police v Duke[6] a starting point of three years six months imprisonment was adopted for twenty five charges of theft from a vehicle of items under $500 in value, fourteen charges in relation to thefts of items between $500 and

$1,000 and eight for theft of items over $1,000.   The items had a total value of approximately $50,000, stolen from parked vehicles in Nelson over three years.

[6] Police v Duke DC Nelson CRI-2009-042-824, 12 May 2009.

[27]     These cases, particularly Stickings, to my mind indicate that when looked at on a totality basis, a four year starting point for the offending in this case was not out of line or manifestly excessive, albeit that the approach by the sentencing Judge was unconventional and therefore difficult to follow.  It needs to be borne in mind that because of the way the Judge approached sentencing the four year starting point in fact included the two sets of cumulative sentences of three months each.   So the starting point for the dishonesty offending was the equivalent of three years six

months imprisonment, although the Judge did not break it down in that manner.

[28]     While I accept Mr Wood’s submission that the use of a document offending was a flow-on from a theft earlier in the day, it was a distinct and different offence and I do not consider the cumulative approach by the Judge can be criticised.  The level of discount for mitigating factors was appropriate.   In summary,  I do not consider the final sentence of three years imprisonment wholly out of proportion to the gravity of the overall offending.

[29]     As far as the minimum period of imprisonment is concerned, it is unfortunate that the Judge imposed this additional penalty without the benefit of submissions from counsel.  As Mr Wood pointed out, the minimum period of imprisonment of twenty months had the effect of doubling the non parole period that would apply to the sentence of two years six months.  Given that the Judge, in fixing the starting point of four years imprisonment, took into account and emphasised the need for deterrence, denunciation and protection of the public I consider those purposes were adequately and appropriately taken into account in setting the starting point of four years imprisonment.   I therefore consider the minimum period of imprisonment imposed should be set aside.  However, Mr Ngawti will need to take heed that any repetition of offending of this nature is likely to call for a penalty of this kind.

Result

[30]     The result is that the appeal is allowed to the extent that the minimum period of imprisonment is cancelled.  In other respects the sentences imposed are confirmed except as follows:

(a)      On the two charges of receiving goods to the value of $500 to $1,000 where the maximum penalty is one year imprisonment, the sentence of two years six months imprisonment is set aside and a sentence of six months on each of these charges is substituted.

(b)On the three charges of receiving goods under $500 in value, where the maximum penalty is three months imprisonment, the sentence of two years six months is set aside and a sentence of six weeks imprisonment on each of these charges is substituted.

[31]     The  substituted  sentences  do  not  impact  on  the  end  sentences  and  are substituted on appeal by way of correction given the maximum penalties available for those offences.