R v Ngamo

[2009] NZCA 512

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/2009
[2009] NZCA 512

THE QUEEN

v

ALLAN RANGI NGAMO

Hearing:14 October 2009

Court:Glazebrook, Potter and Wild JJ

Counsel:S D Patel for Appellant

B D Tantrum for Crown

Judgment:23 October 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

A burglary spree

[1]       In the Auckland District Court, on 11 March 2009, Mr Ngamo pleaded guilty to a range of offences including: ten charges of burglary;  four charges of receiving stolen property;  four charges of unlawfully taking a motor vehicle;  one charge of unlawfully interfering with a motor vehicle;  one charge of driving whilst disqualified;  and three charges of theft of a car under $500.

[2]       The offending mainly took place over a twelve month period between 25 April 2007 and 27 April 2008.  The value of the property taken was approximately $41,670.  Some of this offending took place while Mr Ngamo was on bail and subject to a sentence of supervision.

[3]       Mr Ngamo has an extensive criminal history commencing in 1985, when he was in his late teens.  He was described by the sentencing Judge, Judge Gittos, as a “career criminal and recidivist offender of notable proportions”.  He has over 120 prior convictions, including nine for burglary, 13 for receiving and 15 for drug related offences.  He did make some attempt to address his drug addiction in 2007 but did not complete the course.

[4]       On 4 June 2009, Judge Gittos sentenced Mr Ngamo to a term of imprisonment of five years and three months, with a three and a half year minimum non-parole period in relation to a number of charges, including the ten of burglary. 

[5]       Mr Ngamo appeals against his sentence but only to challenge the length of the minimum non-parole period, which was very near the maximum of 66 per cent.

Submissions

[6]       We were referred to a number of decisions by the parties where the minimum non-parole periods ranged from just under 49 per cent (R v Potae [2007] NZCA 539) to the full 66 per cent (R v Rohloff CA193/03 24 September 2003 and R v Ryder CA514/04 20 July 2005). 

[7]       Mr Patel, for Mr Ngamo, submitted that Mr Ngamo’s position should be equated with Potae.  Mr Tantrum, for the Crown, submitted that Ryder and Rohloff were the appropriate analogous cases.

[8]       The Crown also referred us to R v Clayton [2008] NZCA 348. In that case, this Court held that it was “clearly open” to a Judge to impose a minimum period of imprisonment in a case of extensive and carefully planned fraud, receiving stolen goods and document fraud. In Clayton, the prisoner’s offending had continued over a period of time and was purely for commercial gain.  It was noted by this Court that minimum periods of imprisonment in the 60 - 66 per cent range have often been imposed for cases of serious dishonesty offending, including burglary.  The Court referred to Rohloff and R v Frost CA344/05 6 September 2006, where a 60 per cent minimum non-parole period was imposed.

Our assessment

[9]       Mr Patel responsibly accepted that it was open to the Judge to place little weight on Mr Ngamo’s expressions of remorse, given his extensive criminal history.  The same applies to his rehabilitation attempt, given that Mr Ngamo did not complete the drug programme.  This leads to the position that the only mitigating factor was the early guilty plea.  That had been taken into account in the lead sentence, which means that it carried through to the minimum non-parole period imposed.

[10]     Turning to the cases relied on by the parties, in Potae, the appellant had pleaded guilty to 13 counts of burglary and two other offences committed over a one month period involving $32,000 worth of stolen property.  The Court noted the recidivist nature of the offending, the appellant’s 76 prior convictions, including 21 prior convictions for burglary and theft, and the premeditated element to the offending.  The Court also noted the appellant’s remorse and prospects of rehabilitation and the five year gap between the present convictions and the appellant’s last conviction for an offence of dishonesty.  In that case, the appellant received a 19 month minimum term of imprisonment out of a three year and three month head sentence (a little under 49 per cent).  It is also to be noted that this Court was sentencing afresh in Potae, as the Crown had not sought a minimum term in that case and it was imposed in the Court below without hearing any submissions on the appropriate minimum term.

[11]     In Ryder, the appellant received a minimum period of imprisonment of four years against a six year head sentence for burglary (66 per cent) for 98 charges of burglary over a short time span. Mr Ryder had an “extensive history of prolific offending including burglaries and serious violent offences”: at [15]. In Rohloff, the prisoner appeared for sentence in relation to nine charges of burglary and two charges of theft from motor vehicles. In that case, this Court determined that a minimum sentence of 66 per cent was appropriate, taking into account the nature and degree of the offending, including the fact that some of it was committed whilst he was on parole for similar offending, rendering “it sufficiently serious to justify its denunciation by the imposition of a minimum period of imprisonment”: at [22].

[12]     We accept the Crown submission that Mr Ngamo’s position is more aligned with that of Mr Ryder and Mr Rohloff.  There are a number of relevant differences from the case of Mr Potae, in particular, the long gap in offending in Mr Potae’s case.  In our view, the length of the minimum term imposed in this case was clearly within the range available to the Judge.  Indeed, as noted in Clayton, it is likely to be common for a minimum term of imprisonment at or near the maximum to be imposed in cases of serious recidivist burglars.

Result

[13]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington