Ngaweketuhimata v The King
[2024] NZHC 3820
•12 December 2024
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 Judge followed the guidance in Nuku v R
[2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).
4 Sentencing indication, above n 2, at [9].
5 At [11].
6 At [11].
[7] At the end of the sentence indication there was an interaction recorded between the Judge and Mr Ngaweketuhimata:
[15] [Well, what’s my actual sentence indication, your Honour?] So, the sentence indication is a start point of 39 months, with the promise of a 25 per cent discount at least on a guilty plea, and any other discounts that may be available for other mitigating factors…
Sentencing
[8] At the sentencing, Judge Matenga referred to his earlier indication of a starting point of two years and nine months’ imprisonment (33 months) with a six month uplift for Mr Ngaweketuhimata’s criminal history.7 The Judge noted that from his starting point of 33 months he would deduct 25 per cent for an early guilty plea, 10 per cent for Mr Ngaweketuhimata’s background and the causal connection this had to the offending, and a further five per cent for Mr Ngaweketuhimata’s criminal history.8 The Judge noted that the discounts in total amounted to 40 per cent. Applying that total to the starting point of 33 months, that resulted in a sentence of 20 months’ imprisonment, and to this the Judge added the six month uplift, resulting in an end sentence of 26 months’ imprisonment.9
Relevant legal principles
[9] Appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011. The appellant must show the sentencing Judge made a material error and that a different sentence ought to be imposed. However, an appellate court will not intervene unless the sentence was manifestly excessive, wrong in principle or there are other exceptional circumstances.10 The focus is not the process by which a sentence is reached, but rather the end sentence imposed.
[10] In this case Mr Ngaweketuhimata alleges the Judge departed from his sentence indication and so it is also relevant to note the principles applying to sentence
7 Decision under appeal, above n 1, at [5].
8 At [11]–[13].
9 At [13]–[14].
10 At [29]–[31].
indications. These were recently summarised in Falatau v R by the Court of Appeal as follows:11
[16] … a sentence indication is generally binding on the judicial officer that gave it. The judicial officer may depart from their indication if information becomes available to the court after the sentence indication was given but before sentencing, and that information materially affects the basis on which it was given. In circumstances where a judicial officer proposes to then impose a different type of sentence or the same sentence but of a greater quantum, the court must grant leave to the defendant to vacate any guilty pleas.
[17] The courts have taken a similar approach, by analogy, to other situations (not involving material new information becoming available) where a judge has departed from a sentence indication. In such cases, although not a statutory requirement, courts have recognised that it will generally be appropriate for a defendant’s conviction to be set aside on appeal, and the matter remitted to the sentencing court, if the judge’s departure from the indicated sentence has adversely affected the defendant. In such cases the courts will generally consider whether the sentence indication has generated an expectation which was relied upon by the offender but which was not met at sentencing. This is a factual assessment that is specific to the circumstances of each particular case.
Mr Ngaweketuhimata’s submissions
[11] For Mr Ngaweketuhimata, Mr Forster submits the Judge’s departure from the sentencing indication was a clear error which adversely affected the sentence outcome. He says the departure was from the starting point the Judge proposed to deduct the reductions from. At the sentence indication Mr Forster submits that Mr Ngaweketuhimata was told deductions would be made from the “adjusted” starting points of 39 months’ imprisonment. Mr Forster submits that if the Judge used this approach at sentencing Mr Ngaweketuhimata’s end sentence would have been around 23 months’ imprisonment meaning he would qualify for release after serving half his sentence in accordance with s 86(1) of the Parole Act 2002 because the sentence would have been a short term sentence, being a determinate sentence of 24 months or less.12
[12] In following the principles of Falatau v R, Mr Ngaweketuhimata would have been eligible to vacate his guilty plea at sentencing. But Mr Forster submits that there
11 Faletau v R [2023] NZCA 331 (footnotes omitted).
12 Parole Act 2002, s 4(1). The sentence of 23 months’ imprisonment Mr Forster says the Judge should have imposed, based on his sentence indication, is derived by subtracting 40 per cent of 39 months (= 23.4 months).
is an issue of fairness and Mr Ngaweketuhimata was prejudiced in a material way because he was not given any opportunity to do so.13 This, Mr Forster submits, was a procedural error. However, he argues that given the time Mr Ngaweketuhimata has spent on remand and serving his current sentence, it would be prejudicial to give Mr Ngaweketuhimata an opportunity to vacate his plea now. Instead, Mr Forster submits his sentence should be substituted on appeal.
[13] Mr Forster submits also that the six month uplift Judge Matenga imposed for Mr Ngaweketuhimata’s previous convictions was manifestly excessive. He accepts that this was part of the sentencing indication that Mr Ngaweketuhimata accepted. But he says it was manifestly excessive when thinking about the discounts applied, with the uplift amounting to 18.8 per cent of the overall sentence.14 Mr Forster submits this is disproportionate. He says this disproportion arises from adopting a month based figure instead of a percentage figure. Instead, Mr Forster submits the uplift should be reduced to three and a half months.
The Police’s submissions
[14] For the Police, Ms Mitchell submits the end sentence imposed was not of a higher nature or quality than indicated at the sentence indication. Further, she submits the critical parts of the sentence were clearly articulated by the Judge despite what was conveyed in the informal exchange following at the end of the sentence indication, which I have set out above.
[15] Finally, in respect of the sentence indication, Ms Mitchell submits that Mr Ngaweketuhimata could not have relied on the 39 months figure as allowing him to be eligible for release after serving half of his sentence. That is because the Judge had not indicated the other personal discounts, apart from the guilty plea at that point. As such, she submits Mr Ngaweketuhimata could not have drawn that conclusion.
[16] In respect of the uplift Ms Mitchell submits Mr Ngaweketuhimata has several domestic violence convictions. In her submission that makes the uplift imposed
13 Faletau v R, above n 11, at [16]–[17].
14 The 18.8 per cent figure mentioned by Mr Forster appears to roughly represent the 6 month uplift as a percentage of the 33 month (unadjusted) starting point (ie before discounts were applied).
proportionate and appropriate and she points to the number of previous sentences of imprisonment, the number of family violence offences and the failure of those previous sentences of imprisonment to have a deterrent effect on Mr Ngaweketuhimata, so a deterrent sentence in this instance was needed.
Discussion
[17] I do not consider the alleged difference between the sentence indication and the sentencing constituted an appealable error. I have two reasons for my conclusion in this regard:
(a)First, and most importantly, I do not consider Mr Ngaweketuhimata had an expectation that the starting point to be adopted was 39 months, rather than 33 months. I have to make a fact specific assessment of what happened in the sentence indication process.15 And while I accept the Judge’s words “adjusted starting point” did have the potential to cause confusion, I note the Judge encouraged Mr Ngaweketuhimata to discuss the matter with counsel before making his decision and I also note that by the time the matter reached the sentencing itself the confusion, if it existed, did not manifest. In submissions advanced on behalf of Mr Ngaweketuhimata at sentencing (not by Mr Forster) his then counsel noted that Mr Ngaweketuhimata had accepted a sentence indication of two years and nine months’ imprisonment.16 His counsel, and therefore Mr Ngaweketuhimata, were aware the six month uplift for previous offending was not part of that starting point when accepting the indication and as is acknowledged in this appeal by both counsel, this was the correct approach to the sentencing exercise.17
(b)Second, substituting the sentence on appeal is not the appropriate response when there is a departure from a sentence indication that
15 At [17].
16 Two years nine months’ (or 33 months’) imprisonment is the pre-discount starting point the Judge referred to at [11] of the sentence indication.
17 See Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46]. Counsel also referred to Becroft J’s helpful elucidation of the mathematical approach required in applying the Moses methodology, in Mo’unga v R [2023] NZHC 1967 at [27]–[39].
adversely affects a defendant. An appeal against conviction is the appropriate route.18 I do not consider that Mr Ngaweketuhimata would have experienced irreversible prejudice in changing his plea as the time on remand and time spent serving his current sentence would have been taken into account in re-sentencing.19 In any event, I do not consider there was a departure from the sentence indication for the first reason that I noted above.
[18] I also do not consider there was any error in Judge Matenga’s uplift for Mr Ngaweketuhimata’s previous convictions. As noted, he accepted this uplift in accepting the sentence indication and neither do I consider the uplift was disproportionate. Uplifts have to be viewed within their context. They are not imposed for previous offending as a matter of course.20 Uplifts need to be permissibly reasoned, for example if there is a need to address deterrence or community safety, and any uplift must be firmly tied to a criminal history.21 There is no fixed figure by reference to which an uplift will be viewed as disproportionate and proportionality is a context specific enquiry which has regard to previous convictions, seriousness and the time between convictions.22
[19] As I have noted, Mr Ngaweketuhimata has 23 convictions for family violence since 2015, all of which resulted in sentences of imprisonment. He had a break in his family violence offending between 2017 and 2023. However, that break is explained by his imprisonment at that time for a range of different offences, the most serious of which was a firearm related offence and the other offences were 16 separate family violence offences. Some of those family violence offences were particularly serious, including threatening to kill and assault with a firearm, and before that sentence was imposed Mr Ngaweketuhimata had served three separate sentences of imprisonment for family violence offences. Overall, he has an unfortunately serious pattern of family violence offending. I can see from the material that was before the District Court that
18 Faletau v R, above n 11, at [17].
19 Time spent on remand would be taken into account under the Parole Act: see Parole Act 2002, ss 91 and 92. Time spent serving a previous sentence would be taken into account during the re- sentencing exercise.
20 Reedy v Police [2015] NZHC 1069 at [18]; and O’Connor v R [2014] NZCA 328 at [41].
21 Reedy v Police, above n 20, at [19]; and O’Connor v R, above n 20, at [41].22 Ripia v R [2011] NZCA 101 at [10].
Mr Ngaweketuhimata has been given opportunity to address his pattern of family violence offending through rehabilitative measures. However, as was noted at sentencing by his then counsel, Mr Ngaweketuhimata had unfortunately not implemented any of the tools he had been given thus leading to the offending for which he was being sentenced.
[20] Having regard to all of these matters I conclude that the six month uplift on the starting point of 33 months was not disproportionate. I accept that an offender should not be subject to a double punishment. But a deterrent sentence was warranted because of the risk of harm that Mr Ngaweketuhimata has displayed through his ongoing family violence, as described in the serious criminal history that was taken into account by the Judge in imposing that uplift.
Result
[21] Accordingly, I do not consider there was any error in the sentence the Judge imposed and I dismiss the appeal.
McHerron J
Solicitors:
Elvidge & Partners, Napier for Respondent
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