R v Ngatai - [2014] NZHC 186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-3411 [2014] NZHC 186

THE QUEEN

v

KHADEINE NGATAI

Hearing: 18 February 2014

Appearances: M Hammer for Crown
S Youn for Prisoner

Sentence: 18 February 2014

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland
Counsel:
S Youn, Auckland

R v NGATAI [2014] NZHC 186 [18 February 2014]

[1] Mr Ngatai, you pleaded guilty in the District Court to a charge of being in possession of cannabis for supply and being in unlawful possession of a shotgun and
22 rounds of ammunition. The cannabis charge carries a maximum penalty of seven years imprisonment, and the remaining charges each carry a maximum sentence of four years imprisonment.

[2] The District Court committed you for sentence to this Court because you pleaded guilty prior to committal. As a result, the District Court was not able to sentence you to more than one year’s imprisonment. It considered that that was insufficient to recognise the culpability of your offending. It therefore remanded you to this Court for sentence.

The facts

[3] The facts giving rise to your offending can be stated briefly. They are contained in a summary of facts with which you take no issue. This records that between 4 December 2012 and 27 March 2013, you distributed and sold an unknown quantity of cannabis in the Central Auckland area. Your role in the operation was to procure cannabis and ready it for distribution by street dealers. You supplied the cannabis in question to two persons who were selling at that level.

[4] On the morning of 27 March 2013, the police executed a search warrant at your home. Hidden there, they found 31 three gram bags of cannabis, 49 one gram tinnies and a large plastic bag containing 32 grams of cannabis. In total, the police seized 174 grams of cannabis that had a street value of $3,480. In addition, the police found a 12 gauge shotgun and 22 rounds of shotgun ammunition. You did not have any lawful authority for being in possession of those items.

[5] When you were questioned about the cannabis, you said that your role was to distribute cannabis to street dealers who would on-sell it to members of the public. You told the police that you had the shotgun and ammunition as a means of protecting yourself and your family.

Sentencing Act 2002

[6] As I am sure you now know, in any case involving commercial drug dealing the sentence that the Court will generally impose is one of imprisonment. You yourself have been sent to prison on no fewer than four previous occasions for drug dealing offences. The real issue in your case is to select a sentence that is broadly commensurate with those imposed in other like cases. I say, “broadly”, because no two cases are ever exactly the same.

The sentence indication in the District Court

[7] Before I begin the calculation of your sentence, I think it is important…

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 Ngatai

Details

AGLC: R v Ngatai [2014] NZHC 186
Case: [2014] NZHC 186
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of R v Ngatai involved the defendant, Khadeine Ngatai, who pleaded guilty to charges of being in possession of cannabis for supply, and being in unlawful possession of a shotgun and 22 rounds of ammunition. The District Court referred the case to the High Court for sentencing due to the defendant's prior guilty plea, which limited the District Court's sentencing powers. The cannabis charge carried a maximum penalty of seven years imprisonment, while the firearm and ammunition charges each carried a maximum sentence of four years imprisonment.

The primary legal issues before the court were the appropriate starting point for the cannabis charge, the appropriate uplifts for previous convictions and the firearm charges, and the appropriate mitigating factors to apply. The court considered the principles established in R v Terewi, which indicated a starting point of between two and four years imprisonment for commercial drug dealing. The court also considered the totality principle and the need to balance the defendant's culpability with the need for deterrence and denunciation.

The court determined that the starting point for the cannabis charge should be two years three months imprisonment, as the defendant was operating as a wholesaler rather than at the street level. The court also applied uplifts of six months for previous convictions and six months for the firearm charges. The court accepted the defendant's remorse and efforts to remain drug-free as mitigating factors, applying a reduction of three months. The court applied the full discount of 25 per cent for the defendant's early guilty pleas, resulting in a final sentence of two years three months imprisonment for the lead charge and six months imprisonment for the firearm charges, to be served concurrently.

The court made an order for the destruction of the shotgun and ammunition.

Orders