Ngaweketuhimata v The King - [2024] NZHC 3820

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-31

[2024] NZHC 3820

BETWEEN
SHYAN NGAWEKETUHIMATA

Appellant

AND

THE KING

Respondent

Hearing: 12 December 2024

Appearances:

E J Forster for Appellant

M J M Mitchell for Respondent

Judgment:

12 December 2024

ORAL JUDGMENT OF McHERRON J

[1] Shyan Ngaweketuhimata appeals his sentence of 26 months’ imprisonment imposed by Judge Matenga on 27 September 2024.1 Mr Ngaweketuhimata pleaded guilty to a single representative charge of injuring with intent to injure and a charge of breaching a protection order after receiving a sentence indication from Judge Matenga on 7 June 2024.2

[2] Mr Ngaweketuhimata appeals against the sentence arguing that Judge Matenga departed from his sentence indication and that his sentence should now be substituted with a sentence corresponding with that indication. Mr Ngaweketuhimata also argues that the uplift of six months for his previous convictions was manifestly excessive and should be reduced on appeal.

1 R v Ngaweketuhimata [2024] NZDC 23784 [Decision under appeal].
2 R v Ngaweketuhimata DC Napier CRI-2023-020-3542, 7 June 2024 at [6] and [10] [Sentencing indication]. Crimes Act 1961, s 189(1); and Family Violence At 2018, ss 9, 90(a) and 112(1)(a). Maximum penalties of five years’ imprisonment and three years’ imprisonment respectively.

NGAWEKETUHIMATA v R [2024] NZHC 3820 [12 December 2024]

The offending

[3] Mr Ngaweketuhimata and the victim had a relationship for 12 years. In 2016 the victim obtained a protection order against Mr Ngaweketuhimata. They have two children, both of whom were present during the offending.

[4] While the victim, with her children, was dropping off an item to Mr Ngaweketuhimata, he began hitting her without warning in the ribs with his hands. She dropped to the ground to try to protect herself and Mr Ngaweketuhimata eventually stopped. He then called the children into the house and the victim followed them into the house but as she was walking down the hallway he began hitting her several times in the head. This caused her to fall to the ground. She suffered several injuries as a result of the assaults, including a broken nose and several lacerations and contusions.

District Court sentencing decisions

Sentencing indication

[5] In his sentencing indication, the Judge set a global starting point of two years and nine months’ imprisonment.3 This took into account the aggravating factors of the attack, including several strikes over two distinct violent episodes, attacks to the head, the injuries to the victim, the children being present, and the victim’s vulnerability.4

[6] The Judge indicated that due to Mr Ngaweketuhimata’s significant criminal history there would be an uplift of six months. That criminal history includes 23 family violence convictions since 2015. The Judge said this brought the “adjusted starting point to 39 months’ imprisonment”.5 He further indicated that he would give a 25 per cent discount for a guilty plea and would consider further discounts for personal mitigating factors.6

3 Sentencing indication, above n 2, at [6] and [10]. The…

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: [2024] NZHC 3820
Decision Date: 12 December 2024

CaseChat Overview and Summary

Shyan Ngaweketuhimata appeals the 26-month imprisonment sentence imposed on him by Judge Matenga on 27 September 2024. Ngaweketuhimata pleaded guilty to charges of injuring with intent to injure and breaching a protection order, following a sentence indication from Judge Matenga on 7 June 2024. The appeal contends that the Judge departed from the sentence indication and that the six-month uplift for previous convictions was excessively high. The legal issues before the court include whether the Judge materially erred in departing from the sentence indication and whether the uplift for previous convictions was disproportionate.

McHerron J determined that no material error occurred in the sentencing. The court found that Ngaweketuhimata did not have a specific expectation that the starting point would be 39 months, rather than 33 months, as suggested in the sentence indication. Moreover, the court held that an appeal against conviction, rather than a sentence substitution, is the appropriate response when a departure from a sentence indication adversely affects the defendant. Furthermore, the court found no error in the six-month uplift for previous convictions. Given Ngaweketuhimata’s 23 family violence convictions since 2015, the court considered the uplift proportionate and necessary to address deterrence and community safety.

The appeal was dismissed, and the original sentence of 26 months’ imprisonment was upheld.

Orders