Ngerengere v The King

[2024] NZHC 889

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-8

[2024] NZHC 889

BETWEEN

MATTHEW JAMES NGERENGERE

Appellant

AND

THE KING

Respondent

Hearing:	16 April 2024
Appearances:	M James for Appellant L Glaser for Respondent
Judgment:	16 April 2024

ORAL JUDGMENT OF BECROFT J

[As to appeal against sentence]

Solicitors/Counsel:

G Walsh, Barrister, Hamilton Hamilton Legal, Hamilton

NGERENGERE v R [2024] NZHC 889 [16 April 2024]

The appeal

[1]In October 2023, Matthew James Ngerengere pleaded guilty to:

(a)wilfully attempting to pervert the course of justice;1

(b)breaching home detention;2

(c)two charges of intentional damage;3

(d)three charges of assault of a person in family relationship;4 and

(e)common assault.5

[2]        On 24 January 2024, Mr Ngerengere was sentenced to two years and nine months’ imprisonment by Judge N D Cocurullo in the Hamilton District Court.6

[3]        Mr Ngerengere appeals on the grounds that the starting point for the lead charge of wilfully attempting to pervert the course of justice, set by the Judge at 28 months, was too high, and that there was an insufficient reduction for what was said to be Mr Ngerengere’s remorse, with the result that the end sentence was manifestly excessive.

[4]        Mr Ngerengere also seeks leave to adduce fresh evidence on appeal, being a short letter of remorse, which I understand was written by him recently while in prison. The Crown maintains technical opposition. That opposition is not pursued with vigour. In the interests of justice, I allow the introduction of that letter and propose to give it consideration.

1      Crimes Act 1961, s 117(e); maximum penalty seven years’ imprisonment.

2      Sentencing Act 2002, s 80(U); maximum penalty six months’ imprisonment, or a fine not exceeding $1,500.

3      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.

4      Crimes Act, s 194A; maximum penalty two years’ imprisonment.

5      Crimes Act, s 196; maximum penalty one year imprisonment.

6      R v Ngerengere [2024] NZDC 1499.

[5]        I have a clear view about this appeal. Frankly, it must fail. The end sentence, given the width and seriousness of the offending, is not manifestly excessive. In my view it is appropriate. There has been no error demonstrated in the Judge’s approach. What follows are my detailed reasons.

The facts

Summary of the offending overall

[6]        Mr Ngerengere and the victim had been in an intimate relationship for approximately four years. The relationship was violent. Without any disrespect to  Mr Ngerengere, he is no stranger to these types of charges.

[7]        In February 2022, he was convicted of a different charge of attempting to pervert the course of justice, assault with intent to injure and threatening to kill—all in respect of this same victim. He was sentenced to six months home detention and released on clear conditions that he not contact the victim.

[8]        On 26 October 2022, he visited the victim at her home address, pushing open the bedroom door with such force that the handle damaged the wall. That led to the charge of breach of home detention conditions and the first charge of wilful damage.

[9]        On 7 November 2022, while staying at the victim’s address, Mr Ngerengere became abusive and refused to leave. The victim attempted to push him out of the door during which time he punched her in the left shoulder, upper leg, and hit her on the side of her face.

[10]      He appeared in Court on these charges on 9 November 2022, at which time he began his “campaign” to have the victim drop the charges against him. I will return to the behaviour that led to the attempting to pervert the course of justice charge later.

[11]      On 15 February 2023, Mr Ngerengere was at the victim’s address, and they began to argue. Mr Ngerengere, holding a fork, swung around and hit the victim in the elbow, causing puncture wounds from the fork. The common assault charge resulted.

[12]      On 9 June 2023, Mr Ngerengere and the victim were at a Hamilton address where there was again an argument and a demand that Mr Ngerengere leave. In this case, he burned the victim’s clothing and grabbed glasses from her head, before smashing them. The second intentional damage charge resulted.

[13]      On 10 June 2023, again at the same Hamilton address, Mr Ngerengere punched the victim to the body and struck her three to four times to the right side of her hip and ribs. That led to the second charge of assaulting a person in a family relationship.

[14]      Finally, on 11 June 2023, again there was an argument. Mr Ngerengere refused to leave, and he struck the victim five times to the back of her head with his forearm leading to the third charge of assaulting a person in a family relationship.

Attempt to pervert the course of justice charge

[15]      From the 9 November 2022 through to 26 April 2023, Mr Ngerengere engaged in a sustained, persistent, and consistent campaign to have the victim contact authorities, including the police, to drop the charges against him. Most of that contact was by email. Sometimes it was face-to-face. Put another way, he demanded, pressured, and bullied the victim into speaking and writing to police, lawyers, victim advisers and restorative justice workers in an attempt to end the police charges.

[16]I summarise his attempts to pervert the course of justice in this way:

(a)From the 9 to 16 November 2022 there were numerous emails to the effect that, “if you really love me and want this to work you will contact ‘Donna’ and make something happen, only you can do this”. I am advised that Donna is a court victim adviser.

As a result, the victim emailed a restorative justice case manager about going through the restorative justice programme. No reply was received.

Later, Mr Ngerengere criticised the victim for “not mentioning anything about dropping the charges”.

(b)On 24 November 2022, Mr Ngerengere emailed the victim that he would not be able to continue the relationship if she did not drop the charges.

(c)On 12 December 2022 Mr Ngerengere emailed the victim saying:

I want to marry you, I want to live every day with you but the biggest thing is I want you to drop the charges, because if you can’t drop the charges how could any of the rest even work.

(d)On 19 December 2022, a further email from Mr Ngerengere blamed the victim making a statement and that she was “crucifying him when all he wants is for them to be together”.

There was further manipulation. Mr Ngerengere was clear in saying to the victim “[y]ou have to go through a lawyer. Asking a Police officer isn’t going to do anything”. Mr Ngerengere then made clear that he wanted to listen to any call that the victim made to the police and a lawyer. As a result, the victim emailed the Hamilton police asking for the charges to be dropped and, if not, for the bail conditions to be altered.

(e)On 29 January 2023, Mr Ngerengere sent a further text:

Have you forgotten it’s you that rung the police and has put me in a position that I am looking at serving six months in prison, it’s you that’s not prepared to contact my lawyer or Police to try and drop the charges. I want us to be together and live together.

(f)On 30 January 2023, Mr Ngerengere again texted the victim threatening their relationship by saying:

[O]ne more thing, write an email to Police saying you want to drop the charges, until then, I’m staying on tinder, I’ll start looking at other profiles from tomorrow onwards, your choice.

(g)There was a further text on 3 February 2023, pressuring the victim to follow-up on the email to the police, which the victim did. The police responded with a clear statement that the charges would not be dropped.

(h)Finally, on 26 April 2023, the victim was at Mr Ngerengere’s address where Mr Ngerengere said:

I have just been speaking to my lawyer, she said there is a couple of things you can do to help me. She said if you work with me it would help me stay out of prison or even get the case thrown out.

You can say you overreacted, or you can just not turn up on the day you were meant to appear to give evidence. If you do that, they got nothing to go on and it’ll be thrown out of court.

District Court decision

[17]      Judge Cocurullo identified that the lead charge was wilfully attempting to pervert the course of justice. On that charge the Judge adopted a start point of 28 months’ imprisonment. Having considered the totality of the offending the Judge then applied a 12-month uplift to reflect all the other seven charges. To acknowledge personal aggravating factors, including prior convictions, offending while on bail, and while subject to a sentence, a 15 per cent uplift was imposed. A 22 per cent discount was provided for guilty pleas. A reduction of 10 per cent was given for s 27 factors and other personal mitigating factors.

[18]      In calculating the end sentence the Judge reduced the total discounts of 32 per cent to 17 per cent (to reflect the 15 per cent uplift for personal aggravating factors). He then applied that 17 per cent reduction to the adjusted starting point of 40 months imprisonment. The end sentence was rounded up to 33 months’ imprisonment.

Law on appeal

[19]      Section 250(2) of the Criminal Procedure Act 2011 provides that a court must allow a sentence appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[20]In any other case, the Court must dismiss the appeal.7

[21]      As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:8

[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.

[22]      The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau v R:9

It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[23]      Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.

[24]      An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.10 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.11

7      Criminal Procedure Act 2011, s 250(3).

8      Campbell v R [2022] NZCA 579 (footnotes omitted).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

10     R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].

11     Polyanszky v R [2011] NZCA 4 at [17].

Was the starting point for attempting to pervert the course of justice too high?

[25]      Issue is only taken with the starting point of 28 months for the lead charge. The 12-month uplift for all the other charges to reflect the totality of the offending, is not challenged. Neither can it be. Nor is there any challenge to the 15 per cent uplift for personal aggravating features, including the very similar previous offending.

[26]      Ms James carefully presented her argument for Mr Ngerengere. Indeed, she said all that was possible in his favour. She submitted that the correct starting point was 18 months’ imprisonment. In her view, this was offending towards the lower end of the scale. Implicit in her submission was that the Judge had mischaracterised the scope and extent of offending and that his 28-month starting point did not sit well with the comparator cases.

[27]      Counsel accepted there were no tariff or lead cases. Each case turns on its own facts. Four comparator cases were referred to.

[28]      In Vince v R, seven days after assaulting the victim, Mr Vince accessed her Facebook account from his own computer, without her consent, using her password.12 He sent messages to his own Facebook account, worded as though they had been written by the victim, saying she had attacked him with a knife, and she caused her own bruises. A starting point of two years was adopted, although the real issue in that case was whether home detention was appropriate. That offending was regarded, on appeal, as being “at the lower end of the scale of criminal offending”.

[29]      That case is quite different to Mr Ngerengere’s offending. Mr Vince did not threaten any harm to the victim, but Mr Ngerengere certainly did so here, at least in terms of psychological harm. Mr Vince’s clumsy attempt to create false evidence occurred very early in the investigation to avoid potential prosecution and before any charges had been laid. It was not an attempt, as here, to suborn a witness or to interfere with the prosecution process once that had already started. Viewed in that way and being a much less serious case, Vince in fact gives support for the two years four months’ starting point adopted here.

12     Vince v R [2017] NZHC 2358.

[30]      Ms James also relied on Birch v R.13 After being charged with assaulting a person with whom he had a family relationship, Mr Birch messaged an associate of the victim. He requested that she make contact with the victim to let her know, “if the victim drops charges I’ll put $2000 into her account and she will never hear or see me again”. The message got to the victim who did not comply with it. About a week later Mr Birch contacted the same associate asking for the victim to write a letter to the Judge which will make everything go away, with a second message that “all she needed to say is that she was angry and it didn’t happen”, and then a third message saying “drop the protection order”.

[31]      In that case, a starting point of 18 months was adopted and upheld on appeal. That case had the serious aggravating factor of bribery, although indirectly through a third person. It was of brief duration. It is quite different from this case where there is five-and-a-half months of unremitting and quite sophisticated psychological manipulation directly to the victim. Neither does that case lead me to the view that the starting point here is inappropriate or unreasonable.

[32]      For the Crown, Ms Glaser relied on two cases, first R v Potter.14 Ms Potter put pressure on her 14-year-old child on two occasions to withdraw the sexual violation allegations her daughter had made against Ms Potter’s partner. Specifically, she had told her child about the financial consequences of her abuser going to prison because he was helping to pay for the rent and things that the children needed.

[33]      The sentencing Judge identified aggravating features of the victim’s vulnerability, breach of trust, the impact on her and the serious nature of the allegations in respect of which the attempting to pervert the course of justice took place. A starting point of two years three months’ imprisonment was adopted. The Court of Appeal identified the offending as at least in the mid-range of seriousness and concluded the starting point was manifestly inadequate and inappropriate. A starting point for the offending should have been at least three years’ imprisonment. That said, the appeal was dismissed, and the sentence was not disturbed for other reasons. This offending is less serious, but the starting point of two years four months sits well with Potter.

13     Birch v R [2022] NZHC 2448.

14     R v Potter [2015] NZCA 25.

[34]      In Sweeney v R, the charge of attempting to pervert the course of justice related to an incident following on from a family violence episode.15 While in custody and subject to a non-contact order, Mr Sweeney called the victim to inform her that his mother would provide a false alibi. He made overtures to her encouraging her not to appear in Court and give evidence. That charge was not regarded as the lead charge but resulted in a totality adjusted uplift of 15 months’ imprisonment. In that case, Eaton J recognised that sentences in the range of 18 months to two years’ imprisonment are commonly imposed for similar offending.

[35]      Against the backdrop of these cases, in my view the offending here was significantly more serious than Vince and Sweeney; more serious than Birch, but probably not as serious as Potter.

[36]      The Judge was right to say Mr Ngerengere had conducted a campaign against the victim. Many adjectives could be used to describe his behaviour—whether they be sustained, repetitive, unrelenting, like a dripping tap, highly manipulative, or laced with psychological abuse—matters not. This was serious offending of its kind, and it demanded a stern response.

[37]      Attempting to pervert the course of justice strikes at the heart of the criminal justice process. All too easily, pressure, by which I mean manipulative and sophisticated pressure, can be placed on victims of family violence not to give evidence. Here, a firm response was required. The Judge simply cannot be faulted for the approach that he took. I see absolutely no error in his approach.

Sufficient allowance for remorse?

[38]      The Judge was alive to this issue in his sentencing. He gave a 22 per cent discount on the guilty plea and then said, “I intend to give no discount for remorse. I understand the submission, but in my view, it is encapsulated in the fairly significantly healthy plea that you have been given.”16

15     Sweeney v R [2023] NZHC 1067.

16     R v Ngerengere, above n 6, at [15].

[39]      The facts leading to the guilty plea allowance need a little unpacking. The lead charge was the subject of a Crown prosecution first laid on 17 August 2023. It resulted in a guilty plea about two months later, in respect of which the Judge correctly said, “a full reduction of 25 per cent would have been allowed”. However, that is not the end of the matter.  In respect of all the remaining charges, there was a gap of up to  11 months before guilty pleas were entered to them. They were not amended or apparently the subject of any detailed plea discussions. Conceivably, the allowance for those guilty pleas may have been quite low, say 10 per cent.

[40]      Assessed in that context, the overall allowance of 22 per cent, as the Crown put it can be correctly judged as merciful and generous.

[41]      Mr Ngerengere’s letter, which I have already accepted on appeal, is less than a page but heartfelt. I have read it carefully. He makes clear that if he could, he would take back what happened and is extremely sorry for putting the victim through everything. He has previously done anger management and has learnt tools to help him understand what to do and not to do while in volatile situations. He feels disappointed with himself that on the occasions reflected in the charges he has “failed”.

[42]      Frankly, while clearly sincere, there is nothing in the letter that takes the matter past what might be called the expected, and what would be the usual deep apology to the victim for what had happened. Even giving weight to this letter, in my view, it does not take matters to the point where a separate and distinct allowance should be made for remorse. Moreover, it seems to be primarily addressed to the violent offending against the victim.

[43]      Ordinarily, Courts look for something tangible and demonstrable to evidence genuine remorse, which only then should attract a separate and additional reduction. Here, by giving what can only be called a very generous allowance for the guilty plea, the Judge has considered that remorse can be encompassed within that allowance. Even given the additional evidence before me, I cannot see that there should now be a further separate reduction for what is said to be Mr Ngerengere’s remorse, much less

that the Judge was in error. At times, and this is one of them, a generous allowance for pleas of guilty will satisfactorily encapsulate remorse.

Conclusion

[44]      The starting point of 28 months for the lead charge was appropriate and entirely within range. Further, there was no error in failing to provide a separate reduction for remorse. With respect to Mr Ngerengere, the appeal fails.

[45]      I conclude by emphasising that his lawyer, Ms James, has said everything possible in Mr Ngerengere’s favour and argued with real determination. But the inevitable result of this appeal is that it must be and is dismissed.

Becroft J