Ngawhika v R - [2017] NZCA 535

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/2017
[2017] NZCA 535

BETWEEN	CARL KAITIKA NGAWHIKA Appellant
AND	THE QUEEN Respondent

Hearing:	15 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	J U Mooney for Appellant JEL Carruthers for Respondent
Judgment:	21 November 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Carl Ngawhika was found guilty by a jury in the District Court at Invercargill on four charges of theft. All of the charges related to the theft of money belonging to restaurant businesses at which Mr Ngawhika was working or had formerly worked.
On 30 May 2017, Judge Mark Callaghan sentenced Mr Ngawhika to concurrent sentences of two years and four months’ imprisonment on each charge.[1] Mr Ngawhika appeals against both conviction and sentence.

Background

[1]R v Ngawhika [2017] NZDC 11587 [Sentencing notes].

The most serious charge related to the theft of $17,713.00 from the Jack’s Point Golf Clubhouse and Restaurant in Queenstown (the Jack’s Point charge).
Mr Ngawhika had worked at Jack’s Point until mid-2014. During that time he became aware that takings from both the golf shop and the restaurant were stored in a safe on the premises before being banked. He also knew the combination of the safe, which was located in a cleaning room under a flight of stairs leading to the management office. This room was close to the toilet area, and access to the toilets could be gained from the carpark without having to enter the premises through the main doors.
At the time of the offending, Mr Ngawhika’s wife worked at the premises and Mr Ngawhika knew some of the staff who were still working there. At 7.30 am on 16 March 2015, Mr Ngawhika travelled to the premises in a separate vehicle to that driven by his wife. He told police later that he was intending to catch up with his former workmates at the restaurant. Staff then observed him acting in a furtive manner in the toilet area adjacent to the area where the safe was located.
At about 8.30 am staff discovered that a bank bag containing more than $17,000 had been removed from the safe. They called the police, who executed a search warrant at Mr Ngawhika’s address in Queenstown later the same day. The police found two bank bags in Mr Ngawhika’s vehicle. One of these had a serial number or bank code written on it that was one of a series of numbers written on bank bags being used by Jack’s Point at that time. The second banking bag was subsequently identified as belonging to another of Mr Ngawhika’s former employers, the Styx Restaurant in Nelson. Mr Ngawhika had worked at that restaurant until mid-February 2015. Enquiries by the police revealed that cash takings from that restaurant had not been banked on six separate occasions between 18 January and 14 February 2015. This…

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 Ngawhika v R

Details

AGLC: Ngawhika v R [2017] NZCA 535
Case: [2017] NZCA 535
Decision Date: 21 November 2017 at 11.30 am

CaseChat Overview and Summary

Carl Ngawhika was found guilty by a jury in the District Court at Invercargill of four charges of theft, all related to money stolen from restaurants where he had worked or formerly worked. Ngawhika appealed against both his conviction and sentence, which were two years and four months’ imprisonment for each charge, to be served concurrently. Ngawhika argued that the jury’s verdict was unsafe, the judge had erred in summing up, and prejudicial evidence had been admitted. The appeal against sentence claimed the sentence was manifestly excessive.

The Court of Appeal found that the disappearance of the crucial banking bag, while unfortunate, did not affect the case against Ngawhika as it had been independently confirmed by photographs and the serial number. The Court rejected the argument that the judge’s summing up may have confused the jury as they were already aware that Ngawhika had forgotten the safe’s combination. The Court also found that while the evidence of the EFTPOS transaction at Nelson Airport was irrelevant and prejudicial, it did not affect the verdict as the Crown had other evidence to prove the charges.

The Court of Appeal found that the sentence was not manifestly excessive. The judge had chosen a starting point of two years and nine months’ imprisonment, which was appropriate given the premeditated nature of the offences and the breach of trust. The allowance for Ngawhika’s lack of previous convictions was also generous. Therefore, the sentence of two years and four months’ imprisonment was not manifestly excessive.

The appeals against conviction and sentence were dismissed.

Orders