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R v Mitai-Ngatai

R v Mitai-Ngatai

Case [2020] NZHC 410 5 March 2020

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2019-070-1087

[2020] NZHC 410

THE QUEEN

v

TAUHU DAVID MITAI-NGATAI

Date of hearing: 5 March 2020 (Heard at Rotorua)

Appearances:

H J Sheridan for the Crown B J Hesketh for the defendant

Date of sentence:

5 March 2020

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel:
Pollett Legal Limited, Tauranga Adams Hesketh, Tauranga

R v MITAI-NGATAI [2020] NZHC 410 [5 March 2020]

[1] Mr Tauhu,1 as you know, on the 11th of October last year, a jury found you guilty of indecent assault.2

[2] I am now to sentence you for that conviction. It is your third ‘strike’ offence.3 That means I must impose on you the maximum term of imprisonment for the offence, which is seven years.4 That is the sentence you will receive today.

[3] I also must order you to serve that sentence without parole, unless I consider that would be “manifestly unjust”, given your circumstances and that of your offending.5 That really is my only decision today.

[4] I have listened to what counsel have had to say, both for you and for the Crown. I am not bound by their views; I have to come to my own decision.

Your offending

[5] I turn to your offending. On 8 March last year, you were at a shopping mall in Tauranga. You eventually entered a clothing store, asking for children’s pyjamas in gang colours. When the sales manager, working alone in the store, explained it did not have what you wanted, you said words to the effect “That’s all right because you’re so sexy in those tights”. You came up to her, grabbed her bottom, and pulled her tights away from her body. You then released her, said you would be back, and left the store.

Victim impact statement

[6] Your offending affected the manager. Although she was not injured physically, she felt threatened, intimidated and frustrated by your actions. She was shocked by them, and scared and uncomfortable for being on her own. In her victim impact statement, she quite rightly says she “[doesn’t] think [she] should be going through something like this”. She was entitled to be safe in her workplace. And she additionally

1      At trial, the defendant explained he preferred to be referred to as “Tauhu”.
2      Crimes Act 1961, s 135. Maximum penalty is seven years’ imprisonment.
3      Sentencing Act 2002, s 86A.
4      Section 86D(2).
5      Section 86D(3).

was stressed by having to relive the incident in giving evidence at your trial. That caused her financial difficulties, and also affected her mother who came to support her.

Personal circumstances

[7]I have a number of reports into your personal circumstances.

—pre-sentence report

[8] Your pre-sentence report says you present a high risk of re-offending and a high risk of harm to others. Factors contributing to your offending are sexual arousal relating to your offending, your lack of impulse control, your poor problem-solving skills, and your…

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 R v Mitai-Ngatai

Details

AGLC: R v Mitai-Ngatai [2020] NZHC 410
Case: [2020] NZHC 410
Decision Date: 5 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the defendant, Tauhu David Mitai-Ngatai, was found guilty of indecent assault by a jury on 11 October of the previous year. The defendant was sentenced by Jagose J on 5 March 2020. The defendant's legal team was represented by B J Hesketh, while H J Sheridan appeared for the Crown. The defendant's case involved three prior convictions for indecent assault, making this his third 'strike' offence. As a result, the court was required to impose the maximum term of imprisonment for the offence, which is seven years, and order the defendant to serve that sentence without parole.

The court assessed the defendant's personal circumstances, including his history of substance abuse, mental health issues, and family relationships. However, the court determined that these factors did not justify withholding the possibility of parole, as the defendant stood wholly culpable for his offensive conduct. The court also considered the victim impact statement, which highlighted the significant emotional distress and financial difficulties experienced by the victim as a result of the defendant's actions.

In conclusion, the court sentenced the defendant to seven years' imprisonment for the conviction of indecent assault, with the possibility of parole. The court found that this sentence was not grossly disproportionate to the short-term sentence that the defendant may have otherwise received. The court considered the defendant's willingness to address his alcohol use and problematic behaviour, as well as the potential benefits of parole in incentivising the defendant to access recommended programmes and reduce the likelihood of re-offending.

Final orders: The defendant was sentenced to seven years' imprisonment for the conviction of indecent assault, with the possibility of parole.

Orders