R v Ngapera

[2023] NZHC 2931

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-009236

[2023] NZHC 2931

THE KING

v

THOMAS NGAPERA ROCKY NGAPERA

Hearing:

19 October 2023

Appearances:

T A Simmonds and K F R Karpik for Crown H-A Cherrington for Thomas Ngapera

H Kim for Rocky Ngapera

Sentenced:

19 October 2023

SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker Ltd, Auckland

Counsel:Harvena Cherrington Law/I Jayanandan, Auckland H N Kim, Auckland

R v NGAPERA [2023] NZHC 2931 [19 October 2023]

[1]    Thomas Ngapera and Rocky Ngapera, you are for sentence having pleaded guilty to charges of being members of a conspiracy to injure Rangiwhero Ngaronoa with intent to injure him, and wilfully attempting to pervert the course of justice. Your guilty pleas followed a sentence indication in this Court on 25 July 2023.1 The maximum penalty for conspiracy to injure is five years and the maximum for attempting to pervert the course of justice is seven years.

[2]    The two of you are brothers and are uncles of the deceased. Rocky Ngapera, you were apparently in a relationship with Kelly-Anne Burns, the mother of Ms Burns- Wong-Tung. An issue arose between Ms Burns-Wong-Tung and the deceased. She apparently took slight at some allegation he had made against her child. Ms Burns- Wong-Tung, Mr Hemopo, her partner, her mother Ms Burns, and the two of you, planned to deliver the deceased to Ms Burns-Wong-Tung in order for her to give him a beating or a hiding, to injure him. In fact, she went further and murdered him. Following a jury trial she has been convicted of that offence.

[3]    On 21 November 2021, the two of you, with Thomas driving, Rocky in the front seat, took your nephew to an address in Clendon in a Ford Escape car. By arrangement there you met up with Mr Hemopo and Ms Burns-Wong-Tung. When you got there, Thomas you got out of the car. You told the others that only Ms Burns- Wong-Tung was to touch him. Ms Burns-Wong-Tung then went up to the deceased and, using a kitchen knife, stabbed him repeatedly. She assaulted him for about a minute, stabbing him at least eight times. She then left saying “thanks bruv”. As noted, she was convicted of murdering him. She will be sentenced in due course.

[4]    The two of you then drove your fatally injured nephew to a medical centre. While staff at that medical centre tried to assist him, you abandoned him and left the scene. The deceased was taken to Middlemore Hospital by ambulance for emergency medical treatment but was pronounced dead at 2.32 pm.

[5]    Thomas you then went to an associate’s home and cleaned the deceased’s blood from inside the car, or attempted to. At about 7.15 pm Detective Faga phoned and told you that the deceased had died and that he wished to speak to you about it. You left

1      R v Ngapera [2023] NZHC 1971.

the address before the Police could come and speak to you. In the meantime Rocky, you had shaved your hair off in an attempt to change your appearance. You then both damaged the Ford Escape by smashing the right rear window and denting the right side of the car.

[6]    At about 8.40 pm that night, while you were both still in the car the Police stopped the car and spoke with you. You both provided false statements to the Police at that time. You said some unknown people on Myna Place, Clendon, had stabbed Mr Ngaronoa and had damaged the vehicle using a shovel and axe.

[7]    In sentencing you I take account of the purposes and principles of the Sentencing Act 2002. The particularly relevant purposes are to hold the both of you accountable for your actions in being involved in the conspiracy to injure your nephew and for the harm done to the community by such violent offending. The sentences should also promote in you both a sense of responsibility for and acknowledgement of the harm caused by your actions. The sentence should denounce and deter such violent actions and also deter others from attempting to pervert the course of justice by making false statements to the Police in an attempt to avoid liability.

[8]    The particularly relevant principles are the gravity of the offending, including your culpability and the seriousness of the offending. I also note the need for consistency in sentences for similar offending. In that regard I have considered the cases referred to by counsel.2

[9]    The Court is also directed to impose the least restrictive sentence appropriate in the circumstances, in accordance with the hierarchy of sentences in s 10A of the Sentencing Act. In your cases, that is plainly imprisonment.

2      Moses v R [2020] NZCA 296; Pene v R [2023] NZHC 1234; Paora v R [2021] NZCA 559; R (CA528/16) v R [2017] NZCA 210; O’Connor v R [2014] NZCA 328; Malolo v R [2022] NZCA 399; Gage v R [2014] NZCA 140; Agar v R [2021] NZCA 240; R v Rapira [2003] 3 NZLR 794; Miller v R [2014] NZCA 382; Maney v R [2018] NZCA 193; Thomas v R [2020] NZCA 257; R v Beazley [2016] NZHC 1219; R v Ngapera [2022] NZHC 289; R v Eaton [2021] NZHC 3357; R  v Samson [2021] NZHC 2636; R v Comer [2017] NZHC 3243; Rafiq v R [2017] NZCA 220; R v Donaldson [2016] NZHC 1718; and Tamihana v R [2015] NZCA 169.

[10]   The Crown submits that an appropriate starting point is the four years indicated by the Court. Mr Simmonds accepts that some reduction could be made for your guilty plea and for personal circumstances, although for the reasons he has outlined, he submits those reductions for your personal circumstances should be limited.

[11]   For you, Thomas Ngapera, Ms Cherrington suggests up to a further reduction of 25 per cent for factors referred to in the s 27 report, and argues a further modest discount for remorse, rehabilitative steps and for time spent on EM bail would be appropriate.

[12]   For you, Rocky Ngapera, Ms Kim has submitted a further discount of 15–20 per cent is available having regard to the matters set out in a psychological report prepared for sentencing.

[13]The first task is to set the starting point for your sentence.

[14]   There are a number of aggravating features to your offending in this case. A principal one is the breach of trust. You were both uncles to the deceased and people of authority to him. He was only 22 years old. Thomas you are now 38 and Rocky you are 47. Your nephew would have felt safe with you, or at least would not have expected you would lead him to his death which is what you did. Another aggravating feature in this case is your involvement in the planning of the arrangement to mete out some form of vigilante justice and to allow others to take matters into their own hands over some perceived slight. I accept of course that you had no idea that Ms Burns- Wong-Tung would go on and murder him. Nevertheless, even on your case and what you have pleaded to, is that you intended your nephew would be injured.

[15]   I take as the lead charge, the charge of conspiracy to injure. I take a starting point of two years, nine months’ imprisonment for that charge. I see no reason to differentiate between the two of you in terms of the role you played. You were both equally involved and your nephew would have relied equally on both of you. I uplift that in each case for a further 12 months for attempting to pervert the course of justice. That in itself is serious offending. The uplift could have been more but I take into account totality. That leads to an adjusted start point of three years, nine months.

[16]   I then turn to your personal aggravating and mitigating factors. In each case unfortunately you both have a long list of previous convictions, including convictions for violence. I uplift the sentence in each case by a further, rather modest three months to take account of those relevant previous convictions, which disclose your propensity for violence, which leads to a starting point of four years’ imprisonment in each case.

[17]I turn to your personal mitigating factors. Thomas I start with you.

[18]   You are now 38 years old. You are from Napier and identify through your iwi affiliations to Ngapuhi. You were raised whaangai until the age of eight. Apparently your whanau were Black Power in a Mongrel Mob neighbourhood which made life a struggle. You went to live with a family in Gisborne at the age of 13. Your first experience with justice was a youth justice facility at the age of 16 or 17. You report an incident of abuse on you from a family member.

[19]   You were with a partner for around five years and have two children. I note that scattered throughout your criminal conviction history are convictions for family violence and breaches of protection orders. You say you moved to Auckland for a new start but that was not successful. You say you have never belonged to a gang yourself.

[20]   The s 27 report says that you reported being under the influence of methamphetamine at the time of the offending, and says your cultural deprivation contributed to your offending. The report suggests that the intergenerational transmission of violence was integral to the normalisation of violence in your life and notes your reporting of abuse by the family member.

[21]   As Mr Simmonds submitted it is difficult to reconcile that self-reporting to the s 27 report writer with what you told the pre-sentence writer, the probation officer, for the purposes of the pre-sentence report which in my view seems a much more objective report. In that report you reported that you have been clear of methamphetamine for years and what’s more you have not drunk and were sober at the time of this particular offending.

[22]   The s 27 report also suggests you are now extremely remorseful for your offending and the role you played. You have written a letter to the Court in which you have expressed that remorse. I note you suggest you would attend restorative justice if the deceased’s family were at all interested.

[23]However, Thomas, I have to say I doubt your remorse is actually genuine.

[24]   For true remorse there must be an acknowledgement of responsibility. You have sought to minimise your responsibility in this case and in your report to the probation officer you said “I know for a fact I’m an innocent bystander. I never wanted to hurt him like that. My nephew didn’t deserve that. I was trying to be an uncle. I was trying to save him”. None of that is in the summary of facts to which you pleaded guilty. You have sought to downplay your involvement by saying that people were already there and almost suggesting your presence was accidental or coincidental. To the extent you now regret being involved in my judgment it seems personal and to be directed at the circumstances you find yourself in. Overall I do not accept you are truly remorseful, at least not at a level which would support any reduction in sentence for remorse.

[25]   The s 27 report does confirm that, as does the pre-sentence report, that like a number of people who appear before this Court for sentence, you come from an unfortunate background. But given your involvement in the offending in this case and your age and past history of violent offending, there is a limit to the extent the Court can take account of your personal circumstances. You have had numerous occasions and opportunities in the past where, if you were genuine, you could have taken steps to turn your life around. Given the seriousness of your actions in this case, the allowance the Court can give you for your personal circumstances must be constrained.

[26]   Counsel also seeks a reduction for the time you have spent on electronically monitored bail (EM). While you were on EM bail you breached bail on more than one occasion, and you were also granted a number of variations. Having regard to those factors again there is a limit to the reduction that can be provided for that.

[27]   The principal mitigating factor is your guilty plea which, as I indicated I would allow 12½ per cent for. I allow a further reduction of seven and a half per cent to take account of your personal background features and to make some allowance for the time spent on EM bail. The total further allowance leads to a total deduction of 20 per cent.

[28]   Rocky, in your case, at the age of 47, you also have an extensive list of convictions, including for violence. You describe having an “okay” childhood and relocating to Auckland in 2006 or 2007 for employment. While you previously belonged to a gang and were patched at a young age, you say you had made a decision to leave the gang a while ago. You have nine children and a number of grandchildren. You need to think long and hard about the example you are setting them.

[29]   Ms Kim arranged for a psychologist’s report to be prepared on your behalf for sentencing. I have read that report. It is a detailed report. It is, however, based on your self-reporting (at least in part) and records your early exposure to violence and drug use. Of note it suggests a diagnosis of PTSD as a result of what has happened to you in the past.

[30]   Counsel submits you now show some insight into your offending and has submitted a discount for remorse which should be available.

[31]   However, in my judgment the pre-sentence report confirms you still do not accept full responsibility. You still seek to minimise your role in the offending. You told the probation officer that you thought it was for a talk. You said you were “pissed off” at what happened so you took it out on the car. That is contrary to the summary of facts that you have pleaded guilty to. Again, even though you have written a letter to the Court this morning, which will be provided to the victim’s families, you primarily seem to be concerned for your own situation in my assessment.

[32]   While I take into account the matters in the psychologist’s report, particularly the PTSD, as I indicated to you and Thomas, when you accepted the sentence indication, given the level of violence in this case and your past history, there is a limit to how much the Court can take into account your personal circumstances.

[33]   Like Thomas, I consider an allowance of seven and a half per cent to be the maximum available for all your personal circumstances in the present case.

[34]   Thomas Ngapera, Rocky Ngapera, please stand. On the charges of conspiring to injure Rangiwhero Ngaronoa with intent to injure you are each sentenced to three years’, two months’ imprisonment. On the charges of attempting to pervert the course of justice you are each sentenced to one year’s imprisonment. The sentences are concurrent. The effective term of imprisonment is three years, two months. Stand down.

Venning J