R v Ngarangione (aka Edwards) HC Invercargill CRI 2005-225-115

[2007] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2005-225-115

THE QUEEN

v

SAXON DIO NGARANGIONE (AKA EDWARDS)

Hearing:         20 April 2007

Appearances: S N McKenzie for Crown

D G Slater for Prisoner

Judgment:      20 April 2007

SENTENCING NOTES OF MILLER J

[1]      Mr Ngarangione, you appear for sentence on one charge of wounding Philip Turner with intent to injure him.  The jury acquitted you of a more serious alternative charge, that of wounding with intent to cause grievous bodily harm.

[2]      The incident occurred at a party in a garage at Riverton on 12 June 2005. There was a fight between Joel Leask and Matthew White.  Mr Turner entered the garage and, seeing the fight, intervened to assist his friend Mr Leask, by punching Mr White.

[3]      You then attacked Mr Turner, who you did not know, by hitting him in the face with a beer bottle, which broke.  The resulting lacerations required 32 stitches to

his face.  He has permanent scarring and was unable to work for six months.

R V NGARANGIONE (AKA EDWARDS) HC INV CRI 2005-225-115 20 April 2007

[4]      Your defence was that the Crown had failed to identify you as the assailant who inflicted these injuries.  You still maintain that it was someone else who did so, although you admit being involved.  Plainly the jury rejected that defence, and in my view the jury did so rightly.

[5]      However, the jury did find you not guilty of the more serious charge, and I think the significance of that is that the jury was unsure whether you expected the bottle to break and cause injuries of the sort suffered by Mr Turner.  I will sentence you accordingly.  I note also that it appears the bottle was used once only, although there was evidence that you also kicked Mr Turner when he was on the ground.

Personal circumstances

[6]      You were aged 16 at the time of the assault, and at the time of the trial you were unemployed.  Your father and several of your relatives are patched members of the Mongrel Mob, but you deny being a prospect.  There is some reason to give you the benefit of the doubt on that point.

[7]      You have several previous convictions.   Those that are relevant are assault

(1), disorderly behaviour (1) and possession of offensive weapons (3).

[8]     The probation report presents a measured but optimistic picture.   You acknowledge that you were affected by alcohol, which you used to excess at the time, and that at the time violence and anti-social behaviour were part of your life. Alcohol and drug use tests suggest that substance abuse is not now an issue and you have not offended since June 2005.  The report writer notes that you have complied with previous community based sentences and received positive reports.   It is said that you acknowledge the harm that has been done to Mr Turner and have expressed regret for your involvement.

[9]      The starting point in this case must take into account the use of a weapon and attacking the head, along with the injuries caused and the unprovoked nature of the attack.   I accept however, that you acted impulsively and did not intend serious harm.  The guideline case is R v Taueki [2005] 3 NZLR 372, although I have also referred to R v McMillan (CA 128/97, 23 September 1997), and R v Walker (CA

420/01, 13 March 2002).  Ms McKenzie contends that this case fits within band 2 of Taueki.   In my view, it fits more readily within band 1 (3-6 years), subject to an adjustment in your favour to reflect the lesser charge.

[10]     I will adopt a starting point of two years imprisonment.

Aggravating and mitigating factors

[11]     The  only  aggravating  factor  is  your  previous  convictions,  but  I  do  not propose to attach significant weight to them given your youth at the time and the fact that you have not offended since 2005.

[12]     So far as mitigating factors are concerned, the principal consideration is your youth.  That does not automatically call for leniency, but it does require the Court to focus on your prospects of reintegration into society.  I recognise that your prospects of rehabilitation are significant; apart from the fact that you have not offended since June 2005, you have taken steps to address alcohol abuse and you have completed an anger management programme.   I also note that you have never previously been subjected to a custodial sentence.

[13]     For  these  reasons,  there  will  be  a  significant  reduction  in  the  sentence. However, it is not a case in which a non-custodial sentence is appropriate.  It was a dangerous attack, and its consequences for Mr Turner were serious.  And you should appreciate that you are an adult now, so this is the last time that you can expect leniency from the Court.

[14]     You will be sentenced to 18 months imprisonment.   No particular release conditions have been recommended but I will impose a condition that you undertake such  courses,  including substance  abuse  and  anger  management  courses,  as  the probation officer might direct.

Home detention

[15]     I am required to consider granting you leave to apply for home detention.  Ms McKenzie opposes that, understandably.  I recognise that the offence is serious, and that violent offending calls for deterrent sentences.   You also have previous convictions.  But having regard to your age and good prospects of rehabilitation, I will grant you leave to apply for home detention.   It goes without saying that you will not get home detention unless the Parole Board is satisfied that it will actually advance your rehabilitation.  It will be for the Board to satisfy itself that you have a suitable address available to you.

[16]     Stand down.

Solicitors:

Crown Solicitors Office, Invercargill for Crown

D G Slater, Invercargill for Prisoner

F Miller J