R v Ngarongo
[2023] NZHC 2442
•1 September 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-009-417
[2023] NZHC 2442
THE KING v
JESSIE JAMES NGARONGO HEBER KURE WATSON
Hearing: 1 September 2023 Appearances:
L Fiennes for Crown
O K Jarvis for Defendant Mr Ngarongo A J McKenzie for Defendant Mr Watson
Judgment:
1 September 2023
SENTENCING NOTES OF DUNNINGHAM J
[1] Mr Ngarongo and Mr Watson, you are both here for sentence today on a charge of aggravated robbery. Mr Ngarongo, you pleaded guilty on 7 July 2023 and Mr Watson, you were found guilty on 12 July 2023 following a jury trial.
[2] I will begin by setting out the facts of the offending which are common to both of you. I will then discuss the sentence that each of you will receive, taking into account your role in the offending and any aggravating or mitigating factors that are personal to you.
R v NGARONGO [2023] NZHC 2442 [1 September 2023]
The facts of the offending
[3] In the early afternoon of 17 January 2022, the two of you along with three others, went to an address at Elizabeth Street in Riccarton where the three victims were present. Mr Ngarongo and Mr Watson, you entered the property along with your two co-defendants, Mr Wiringi and Mr Jager. You approached the two male victims who were sitting on the driveway repairing a trailer. You repeatedly kicked, punched and struck the two victims with blunt objects while they remained on the ground.
[4] You then took the two male victims to a sleepout at the rear of the address and held them there. One of the victims had his head forced between the cushions of a couch and was instructed not to move. He was then repeatedly punched and kicked, and then stabbed with a sharp implement causing five small puncture wounds in his leg. A curtain was wrapped around the second victim, including covering his head. While wrapped in the curtain, the second victim was repeatedly kicked and punched. He was also stabbed with a sharp implement in his right hip causing two small puncture wounds.
[5] The third victim, a female, was in the sleepout which you forced the male victims into. She was told not to call the police and then thrown on to a bed and asked for her address. She was told if she did not say where she lived, she would be shot. She was then also told that you would be coming around to visit her later in the day. The victims were then left in the sleepout while the two of you, with your two co-defendants, ransacked the rest of the address.
[6] At this point, a further co-defendant, Ms Heald-Harris, reversed a vehicle into the driveway so that it could be filled with stolen property. The two of you, along with the other defendants took various items of personal property from the address and loaded them into the vehicle which was parked in the driveway.
[7] The two male victims suffered significant injuries. The first victim had the following injuries:
(a)two broken bones in one arm;
(b)two lacerations to his head;
(c)bruising and swelling to his right cheek;
(d)bruising and swelling to his right eye; and
(e)five small puncture wounds to his left leg.
The second male victim had the following injuries:
(a)a laceration on the top of his head;
(b)a laceration below his right eye;
(c)bruising to his right eye socket;
(d)a contusion on the right side of his forehead; and
(e)two small puncture wounds to his right hip.
Sentencing principles
[9] I have considered the purposes and principles of sentencing that need to be applied in sentencing you today. I need to hold you accountable, to denounce your conduct and to provide a measure of protection for the community. I also need to take into account how serious the offending was, the need to be consistent in sentencing with your co-defenders, and the impact on the victims, but I have to balance that against the requirement to impose the least restrictive outcome that is appropriate in the circumstances.
Sentencing for Mr Ngarongo
[10] I begin with the sentence for you Mr Ngarongo, though what I say about the starting point will be equally relevant for the sentence of Mr Watson.
[11] In setting the starting point, I need to take into account the aggravating features of the offending. That is the things that make it worse. First, this was a home invasion. Second, there were multiple offenders, with five of you involved in total. Your offending involved the use of a weapon as you struck the two male victims with a paint pail, and they were also stabbed with a sharp implement causing puncture wounds. However, I accept that such weapons are not as serious as use of a knife or a deadly weapon such as a firearm. Next, there were several victims. There was an element of detention as the three victims were detained in the sleepout while the property was removed. Importantly, there was actual violence and not just threats and intimidation and that significantly aggravates the offending. A range of property was taken from the flatmates, including jewellery, cash and personal documents. At trial the value of the items taken was quantified as “a couple of k’s worth of stuff”. However, I accept, as Mr McKenzie said, that financial gain was not the key motivation, but it was present.
[12] I also note that there was a degree of premeditation because you all assembled at Riccarton Mall first, and you were in communication with each other and then arrived, as a group, at the address in two vehicles. Finally, the Crown refers to there being a gang element in the offending, saying you were all associated with the Mongrel Mob in some way and Mr Jager’s facial tattoo of a bulldog was clearly visible. Both Mr McKenzie and Ms Jarvis say that the offending cannot be directly tied to gang activities. However, I note Mr Watson, in your s 27 report, you say you participated at the request of a Mongrel Mob member. Also, Mr Ngarongo, your s 27 report said the offending happened when you were with Mongrel Mob associates. There was, at least a minor gang element to the offending, but it does not play a large part in my decision.
[13] The Crown has referred me to a number of cases to suggest the starting point for both of you of at least seven years would be appropriate. The primary basis for saying this is the guideline decision in R v Mako, where the Court of Appeal said:1
1 R v Mako [2000] 2 NZLR 170 (CA) at [58].
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against complainants, where weapons are brandished, even if no serious injuries were inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[14] While the home invasion provisions referred to in that case have been repealed, the Sentencing Act still says that unlawful entry into a home is an aggravating factor.2 In this case, I accept that the entry was in daylight. However, it was a home invasion, the victims were detained and quite serious injuries were inflicted on one of the victims. I am therefore satisfied that a seven year starting point is required and that would be consistent with the starting point used for your two co-offenders, who have already been sentenced.3
[15] I have also had regard to the cases cited by the Crown,4 and the cases cited by Ms Jarvis.5 The cases relied on by Ms Jarvis do not persuade me that a starting point of seven years would be wrong. In Aramoana, there were only two offenders and one victim In Rewa and Ngerengere, there was no actual violence as there was in this case. Accordingly, while a higher starting point could have been adopted, in the interests of consistency with your co-offenders, and reflecting the fact this was a group enterprise, the same starting point of seven years will apply to both you and Mr Watson.
Adjustments for personal aggravating and mitigating factors
[16] The next issue is whether there should be an uplift on sentence to reflect your relevant criminal history. I accept that an uplift should only be imposed where previous convictions have some relevance to the current sentencing process, for example, by increasing your culpability or heightening the need for a deterrent sentence.6
2 Section 9(1)(b).
3 R v Jager [2022] NZDC 12205, and R v Wirangi [2022] NZDC 12332.
4 Aramoana v R [2021] NZCA 558; Sylva v R [2017] NZCA 567; Stratton-Pineaha v R [2022] NZCA 50; Jadallah v R [2018] NZCA 536; Currie v R [2010] NZCA 449.
5 Aramoana v R, above n 4; R v Rewa [2013] NZHC 995; and Ngerengere v Police High Court Wellington CRI-2010-485-51 8 July 2010.
6 R v Reedy [2015] NZHC 1069 at [16] to [19].
[17] Mr Ngarongo, you have a significant criminal history, including a conviction for aggravated robbery committed in 2017 which involved an attack to the head of a vulnerable intellectually disabled young man. You also have a conviction for wounding with intent to injure which arose out of a violent attack by you and six other inmates on an inmate at Christchurch Men’s Prison in August 2018.
[18] Ms Jarvis submits, that the only conviction that warrants an uplift is your prior conviction for aggravated robbery. Although you have a history of dishonesty and non-compliance offending, it is the use of violence to rob which warrants an uplift. She says the charge of wounding should not be considered relevant given it was in the context of a prison brawl, she says an uplift of no more than six months is appropriate.
[19] In my view, both these previous offences involved the use of violence to achieve an end. Furthermore, both these offences engaged the three strike legislation at the time. The fact you went on to commit this further aggravated robbery suggests that principles of deterrence and public protection warrant an uplift. That said, I agree an uplift of six months, or around seven per cent, as suggested by your counsel, is appropriate.
[20] Ms Jarvis then submits that there are a range of personal mitigating factors disclosed in your s 27 report which warrant discounts. The report is fulsome, though I note it is based primarily on your own reporting.
[21] You grew up in Taumarunui, in what you described as Mongrel Mob territory. Your parents were often away working so your grandparents were your primary caregivers until you were around age 10. It is clear they were positive role models and were supportive of you and wanted you and their other mokopuna to achieve more than they had. Its also clear you had the intellect to achieve, as you achieved NCEA level 3 credits.
[22] However, there were also negative influences in your life. In particular, your father was extremely violent to both you and your mother, and seemed to pick on you, particularly, of all the children. Your experience of violence was not limited to your father. You experienced it from other adults around you, including Mongrel Mob
members. You say being attacked and beaten up was a routine part of your life. Indeed, when you were 12 you had your arm and leg broken in a drunken brawl. I agree, you experienced a level of violence that others may not have survived. Furthermore, it seems likely you sustained head injuries as a result of this violence. This was identified in both the s 27 report and the report of your communication assistant.
[23] I also note you report being diagnosed with ADHD as a child. While that is not confirmed by medical records, I accept it at face value. As the report writer explains, ADHD can be associated with increased risk of violent offending and with the use of methamphetamine, probably due to increased risk-taking behaviour because of ADHD.
[24] By the age of 15 or 16 you were experimenting with drugs other than cannabis and began smoking methamphetamine and being involved with the gangs. Your lifestyle then involved beating up and taking patches off opposing gang members, usually under the influence of drugs. By around 16 or 17, you were addicted to methamphetamine. You accept the drug turned you into a monster and you forgot about all the people that loved you. It is clear your methamphetamine use has contributed to your offending, saying you committed your first aggravated robbery when high on methamphetamine. You also say that you were high on methamphetamine when the current offending occurred.
[25] The report writers have also spoken with your former addiction services case worker in Kensington House. She confirms that you worked hard to turn your life around when she was working with you in 2020. She says you got on top of your addictions and passed drug testing. It is obvious however that you relapsed into drug use since then. Another negative experience in your life was the loss of your brother Ethan to suicide a year before this offending occurred, and I accept that traumatic event contributed to your downward spiral.
[26] Despite those bad experiences, there is evidence that since being on EM bail for this offending you have taken real steps to address the factors that caused your offending. You moved to live with Ms Robinson and her daughter in Timaru,
undertook rehabilitation courses and found work. You say you are getting back to your Te Reo Maori and your tikanga and started doing tikanga courses for men who have left gangs and want to change their lives. You are concerned that going to prison will make you go backwards. You say you are now drug free and do not intend going back on drugs.
[27] I accept that the s 27 report identifies a number of factors from your background that are likely to be causative of his offending. In particular, your early exposure to gang culture and violence played a significant role in how you were socialised. You have had violence role modelled to you by your family. That modelling was reinforced by the gangs. Prison, too, reinforced the need to align yourself with gangs and with violence to survive. It is difficult to deal with conflict or stress in any other way when that is all you know.
[28] Ms Jarvis also says your addiction to methamphetamine is a mitigating factor. You have used drugs since your mid-teens, and by around the age of 17 or 18 you were addicted methamphetamine. You acknowledge you were high on methamphetamine during this offending. I accept though that you used drugs in order to deal with the hurt and pain you carry from your upbringing.
[29] I acknowledge that your addiction impaired your ability to make rational choices. This diminishes both your moral culpability, and it diminishes the relevance of a deterrent sentence.7 That said, there is not as direct a causative contribution between your current offending and your addiction, as would be in the cases of methamphetamine dealing to feed an addiction. Your addiction simply reduced your ability to exercise judgment when asked to participate in this offending. I see your addiction as yet another consequence of your upbringing. It is inextricably linked to the way you cope with difficulties. I would allow a global discount of 20 per cent for the background factors explained in the s 27 report that contributed to both your addiction and your offending.
[30] I accept that a five per cent discount should be afforded for your guilty plea and for your expressed willingness to participate in restorative justice. Your guilty
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [138].
plea came on the last working day before the trial and, accordingly, it warrants only a modest discount.
[31] Finally, your lawyer says you should have a significant discount for the 17 months you spent on EM bail. Importantly, she says that you almost entirely complied with EM bail, you took on employment and you engaged in a drug addiction programme during this time. For the reasons explained in the case of Paora v R, she says a credit in the range of 50 per cent for the time you spent on EM bail is appropriate.8
[32] You were granted EM bail on 14 February 2022 initially on a 24 hour curfew basis and then, on 19 August 2022, your bail was varied to enable you to attend employment at Silver Fern Farms. You engaged with various rehabilitative programmes and generally complied with your conditions of bail. In all those circumstances, I am readily satisfied that a nine month credit should be allowed for your time spent on EM bail and I will deduct that from the final sentence. On my calculation with a net 18 per cent discount on the starting point, and a nine month credit, the end sentence would be five years’ imprisonment.
[33] While I acknowledge everything you say about the brutality of prison, the reality is this was serious offending and I do not have any lesser sentencing option available. However, I hope you use it as an opportunity to continue to engage in programmes for drug addiction and to develop your natural abilities as your grandparents would have wanted. You have proved that while on EM bail that you can live free of negative influences of gangs and drugs. That should be your goal on release.
Sentencing for Mr Watson
[34] I now turn to you Mr Watson. As you have heard, the same seven year starting point should apply to you as applies to your co-offenders. I now turn to what adjustments there should be for the factors that are personal to you.
8 Paora v R [2021] NZCA 559.
Adjustments for personal aggravating and mitigating factors
[35] First, I deal with whether there should be an uplift for your previous offending. You have previous convictions for burglary in 2016 and 2019 and, you have a more historic conviction in the Youth Court for aggravated robbery in 2010. While the Crown submits an uplift would be available for these convictions, your lawyer says the only truly relevant conviction is properly described as historic and the two burglary convictions did not have a commercial or properly related motive, and that makes that offending less relevant. While I accept a modest uplift could be available, I have decided not to uplift for this relatively historic offending.
[36] In terms of your personal mitigating factors, again, I have a fulsome s 27 report and, as we have discussed, there are remarkable similarities with Mr Ngarongo’s s 27 report. Like Mr Ngarongo, you suffered family violence from an early age, and this would have normalised the use of violence. There is also a question of whether you have suffered head injuries as a consequence of this violence. However, unlike Mr Ngarongo, you dropped out of the formal school system in your teens, and you say you cannot read or write adequately, although you were never diagnosed with a learning disorder.
[37] A pivotal and traumatic experience in your life was the death of your older brother on Boxing Day 2009 when you were just 15. He died in your presence on the doorstep of your home after sniffing LPG and this led to you drinking heavily to block out the memories. Your mother confirms that you were very badly affected by this event because your brother had been a father figure to you.
[38] You belonged to the West Side Street gang since in your late teens, although your sister says that this connection came about because the gang members were friends of your brother and supported you after his death. At the age of 19 you were introduced to methamphetamine, and you have been using that drug regularly ever since. Your use of alcohol and drugs has interfered with your employment. You gained a panel beating qualification when you were 16 and you were apparently good at this, but you lost your job in a panel beating firm when you stopped turning up to work because of your drinking and drug use. For a while, you worked on fishing
boats, but you explained you spent much of your income on methamphetamine. You also committed burglaries to exchange for substances. You say all your offending has happened when you have been under the influence of either methamphetamine or alcohol. When you agreed to become involved in the current robbery at the instigation of a Mongrel Mob member friend, you say you had been smoking methamphetamine constantly for four days prior. Your methamphetamine addiction is a consequence of your background and it does impair your ability to make good decisions.
[39] Although initially not compliant on bail, you were more settled when readmitted to bail in the company of your new partner and her family. Since then, you have demonstrated a more pro-social outlook. You say your new relationship is giving you the motivation to give up drugs and alcohol and you say you are keen to do alcohol and drug rehabilitation. That is encouraging and it needs to be followed up on.
[40] Again, for much the same reasons as I have granted a global discount for cultural and background factors and methamphetamine addiction for Mr Ngarongo, I would adjust your sentence by 20 per cent to reflect these factors. Obviously, as you went to trial, there can be no guilty plea discount. So your starting point of seven years, adjusted by the 20 per cent discount, gives an end sentence of five years seven months.
[41]Mr Ngarongo and Mr Watson would you please stand.
[42] Mr Ngarongo, on the charge of aggravated robbery you are sentenced to five years’ imprisonment.
[43] Mr Watson, on the charge of aggravated robbery you are sentenced to five years seven months’ imprisonment.
[44]You may stand down.
Solicitors:
Crown Solicitor, Christchurch
Public Defence Service, Christchurch
Copy to:
A J McKenzie, Barrister, Christchurch