R v Mitai-Ngatai

[2020] NZHC 410

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 unbalanced lifestyle and substance abuse.

[9]                 You are 59 years old. You have the continued support of two of your sisters, but a turbulent relationship with one of your daughters. She has a protection order out against you; numerous family harm episodes have occurred between the two of you.

[10]              You told the pre-sentence report writer you had no recollection of your offending. You say, earlier that day, you consumed a large quantity of vodka after being ‘kicked out’ of your daughter’s home. The report writer considers substance abuse “has been at the forefront” of most of your previous offending, alcohol’s “disinhibiting effect” further reducing your already poor impulse control.

[11]              You acknowledge your “problematic behaviour” and substance use. You report suffering from various mental health issues, including depression and anxiety. You have been working with an ACC counsellor in relation to historic abuse. You have a history of self-harm; in December 2017, you were taken into custody for a psychiatric assessment as you were threatening suicide. The report writer considers the risk of self-harm is lowered if you remain free of alcohol and you regularly take your prescribed medication. You appear willing and determined to undertake and continue alcohol, drug and other counselling.

—psychological assessment

[12]              Dr David Street, a consultant psychiatrist at Hauora Waikato, assessed you as likely having suffered major depressive and generalised anxiety disorders in the past, and presently being dependent on alcohol, nicotine and cannabis. But he found you do not have any mental disorder, with the caveat you were “not willing to consent to having [your] medical files reviewed”. That is significant, because you rely on reports of your serious head injuries as providing the foundation for some of your substance abuse.

—background report

[13]              You have asked me to hear Joseph Takuta, from speaking with you and your two sisters, on your background and the other matters set out at section 27 of the Sentencing Act 2002. I have read his report carefully. Mr Takuta concludes your head injuries and mental illness, and “inability to live in accordance with [your] Māori value systems”, have undermined you, leading to your offending. He commends you “be rehabilitated with the care and support of [your] whānau in a Māori setting”.

—letter to the Court

[14]              As I have said to you, I have also read your apology to the victim, which sincerely regrets your interaction with her, assures her you meant her no harm, and seeks her forgiveness.

Approach to sentencing

[15]              As I said at the outset, Mr Tauhu,6 the only issue for my decision today is if it would be manifestly unjust to order you serve the full term of your sentence without parole. There must be a clear and convincing case, in your and your offending’s circumstances, your imprisonment for seven years without parole would be “grossly disproportionate”.7

6      At [3] above.

7      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108(a)–(c)].

[16]              In making that assessment, the sentence which would otherwise have been imposed is relevant, as are the applicable purposes and principles of sentencing.8 Those include holding you accountable for your offending, and encouraging you to be responsible for and acknowledge the harm you have caused. Your sentence should be sufficient to denounce your conduct and protect the community. I must consider the gravity and seriousness of your offending, and take into account its impact on the victim.

[17]              Also relevant is your understanding of your earlier warnings, your culpability for your offending, and whether you are likely to re-offend.9 This is an intensely factual inquiry.10

Discussion

[18]              I start by observing, on a scale of indecent assault offending, your offending is towards the lower end.11 Factors leading to more severe standalone sentences – degrees of planning, excessive force, extended duration, and material offensiveness – all are missing in your case.12 While the variety of indecent assault makes a tariff unworkable, “a general range for indecent assault should be between six months and two years’ imprisonment”.13 Headroom is reserved for “the most serious in terms of culpability for offending of this type”.14 Without aggravating factors, comparable offending to yours likely would not have attracted a sentence of imprisonment at all.15

[19]              But of your over 100 prior convictions, three – in 2008, 2013, and 2016 – also are for indecent assault. They show your predilection for this type of offending has not abated over time. There is nothing to suggest you did not understand the previous warnings you have received, yet they have not deterred you. Your impulse control has

8      At [108(d)].

9      At [108(e)].

10     At [108(f)].

11     There is room to think low-level indecent assaults are unintended by-catch of the ‘strike’ regime:

Paerau v R [2018] NZCA 139 at [31].

12 Troon v R [2019] NZCA 265; Harris v R [2018] NZCA 632; Hishon v R [2016] NZCA 558; R v Ngahere CA99/02, 25 September 2002; Kennedy v Police [2019] NZHC 2644; Dayal v R [2016] NZHC 1027; R v Ismail [2016] NZHC 79; R v Koia HC Auckland T 992403, 19 April 2000.

13 S v R [2017] NZCA 459 at [30], citing R v Hohaia CA221/05, 17 October 2005.
14 Craig v R [2019] NZSC 103 at [7], refusing leave to appeal from Troon v R, above n 12.

15   R v Waitokia [2018] NZHC 2146 at [21], citing R v Fitzgerald [2018] NZHC 1015 at [21] and R  v Campbell [2016] NZHC 2817 at [17].

not improved over time. You persistently deny responsibility for your offending: you say you have maintained relationships with your former partners and children, despite your history of domestic violence convictions; you argue you accepted liability there to avoid further aggravating your victims.

[20]              Your last indecent assault conviction – in which you grabbed at an ambulance officer assisting you, and made a lewd comment to her – is strikingly similar to the adventitious circumstances of your present offending. Your guilty plea then attracted thirteen and a half months’ imprisonment, determinedly not to be commuted to home detention.16 In fact, as second ‘strike’ offending, you were required to serve the full term of imprisonment.17

[21]              Any lesser sentence as may be justified by the minorly less offensive nature of your current offending would likely at least have been offset by your history. Given your conviction now follows trial, it is more likely, leaving aside the ‘strike’ context, you would have received a heavier sentence. But for this offending being your third ‘strike’, I assess you may have been sentenced to something in the range of fourteen to eighteen months’ imprisonment,18 and plausibly up to 24 months;19 that is to say, to no more than a “short-term sentence”.20

[22]              Even at that top end, the sentence would still fall well short of the parole eligibility date for the maximum seven years’ sentence, for which the default non- parole period is 28 months.21 Sentencing you now to that maximum period of imprisonment, without possibility of parole, is grossly disproportionate to the short- term sentence you otherwise may have received, even if required to serve it in full.

[23]              Nothing in your personal circumstances alters my assessment. Allowing the possibility of parole does not diminish the applicable purposes and principles of sentencing in your case. Your seven-year sentence holds you accountable for your

16     Police v Mitai-Ngatai (reported as Police v Herangi) [2017] NZDC 9053 at [17]–[19].

17 At [20].

18     Paerau v R, above n 11; S v R, above n 13; R v Karotu (1994) 11 CRNZ 691 (CA); Hallett v Police

[2018] NZHC 648.

19     Kennedy v Police, above n 12.

20     Parole Act 2002, s 4 (definition of “short-term sentence”), adopted in the Sentencing Act 2002.

21     Parole Act 2002, s 84(1).

offending in the most serious of ways, with all the deterrent weight available on sentencing for the offence. If you seek to access parole, you will need to demonstrate your sense of responsibility for the harm you have caused, to illustrate your risk to the safety of the community. The likelihood of your re-offending will militate against the grant of parole.22

[24]              I acknowledge the reports I have from both Dr Street and Mr Takuta, but I do not rely on them to come to my view of the gross disproportionality of your maximum sentence. In particular, to the extent they rely on your medical conditions as explanatory or exculpatory of your offending, your refusal to permit access to your medical records means I am unable to give that aspect any particular weight. You stand wholly culpable for your offensive conduct. But there is nothing in your personal circumstances to justify withholding the possibility of parole from you. To do so would be manifestly unjust.

[25]              I am bolstered in this conclusion by comments you made to the pre-sentence report writer, and in your letter to me. You appear willing to address your alcohol use and problematic behaviour. The possibility of parole may incentivise you to access the type of programmes Dr Street recommends. That may, in turn, reduce the likelihood of your re-offending. I note your advice to me of your ‘determination’ to continue the counselling in which you have been engaged since 2016, “voluntarily seeking ways to stop [your] offending and alcohol abuse”.

Result

[26]Mr Tauhu, please stand.

[27]              On your conviction for indecent assault, I sentence you to seven years’ imprisonment.

[28]You may stand down.

—Jagose J

22     Sentencing Act 2002, ss 7–9; Parole Act 2002, s 7.