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R v Ngamo

R v Ngamo

Case [2009] NZCA 512 23 October 2009

Criminal Liability

Sentencing

Recidivism

Minimum Non-Parole Period

Criminal Law

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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…

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 Ngamo

Details

AGLC: R v Ngamo [2009] NZCA 512
Case: [2009] NZCA 512
Decision Date: 23 October 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Allan Rangi Ngamo was heard on 14 October 2009, with the appeal judgment delivered on 23 October 2009. The appellant, Allan Rangi Ngamo, had been convicted in the Auckland District Court on 11 March 2009 of multiple charges including burglary, receiving stolen property, unlawfully taking a motor vehicle, and theft of a car under $500. The appeal focused solely on the length of the minimum non-parole period imposed by the sentencing Judge, Judge Gittos, which was three and a half years out of a total sentence of five years and three months. The appeal was dismissed by the Court of Appeal.

The key legal issue before the Court was whether the length of the minimum non-parole period was appropriate, given the nature and extent of Ngamo's criminal history and offending. The Court considered whether the sentence imposed was within the range of penalties previously set by the Court of Appeal for similar cases of serious, recidivist offending. The Crown argued that the sentence was appropriate, drawing on cases where similar or higher minimum non-parole periods were imposed. The appellant's counsel contended that the sentence was too severe, citing a case with a lower minimum non-parole period.

The Court of Appeal found that the sentence imposed was within the range of penalties previously set by the Court for similar cases. The Court noted that Ngamo had an extensive criminal history, with over 120 prior convictions, and that the offending had occurred over a twelve-month period. The Court also considered the nature of the offending, including the fact that some of it occurred while Ngamo was on bail and subject to a sentence of supervision. The Court concluded that the length of the minimum non-parole period was appropriate given the circumstances of the case and that the appeal should be dismissed.

The final order of the Court was that the appeal against sentence was dismissed.

Orders