R v Ngatai-Check HC Wanganui CRI-2009-083-3155

[2011] NZHC 1234

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-083-3155

THE QUEEN

v

RIKKI LEIGH SCOTT NGATAI-CHECK

Counsel:         L C Rowe for Crown

W Lawson for Prisoner

Judgment:      23 February 2011 (Sentenced at Wellington)

SENTENCING NOTES OF JOSEPH WILLIAMS J

[1]      Rikki Ngatai-Check you appear for sentencing for the murder of Karl Perigo- Check on 24 October 2009 in Whanganui.

Facts

[2]      The facts that came out at trial were like this.

[3]      During 2009 you were in a relationship with Lilah McGregor.  I do not know how long you had been in that relationship.  But I know that it was not an entirely open  one  because  Lilah‟s former  partner  Karl  Check  (Snr)  was  a  senior  gang member but was in prison at the time and is still there.  As a result you and Lilah

were both uncomfortable about who got to know of this relationship.

R V RIKKI LEIGH SCOTT NGATAI-CHECK HC WANG CRI-2009-083-3155 23 February 2011

[4]      Lilah had seven children including Karl Perigo-Check and he was two years old.

[5]      I  do  not  know  whether  you  were  close  enough  to  the  children  to  be considered  their stepfather but  it  is  clear that  despite the  secret  nature of  your relationship with Lilah, you had a lot to do with these children, and you regularly babysat them including Karl himself.  You said you loved them, and you said you loved Karl. You repeated that in a powerful letter that you have written to me today.

[6]      The night before Karl died, Lilah and three children (including Karl) stayed overnight at your place.  The following day Lilah left with the two older children and you babysat Karl.

[7]      Early in the afternoon a woman visited, a friend of yours.   Karl was fast asleep on the couch when she got there – she remembered that.  You and your friend spotted cannabis oil and then she left. There is no argument but that you were stoned at that point.

[8]      Some time later Karl woke up.  He had wet his pants and he left a puddle on the couch seat cover.  You got angry; you grabbed him and swung him around away from the puddle.  His torso hit the edge of a coffee table in the middle of the lounge. This collision broke Karl‟s 8th and 9th ribs on the right-hand side near his spine.  The broken ribs punctured Karl‟s right lung and he began to bleed into his chest cavity.

[9]      You took him into the toilet in your flat and left him sitting there while you went back to playing video games on the bed in your bedroom next door.

[10]     After five to 10 minutes Karl walked into the bedroom carrying a line of toilet paper behind him.

[11]     This time you snapped completely.  You sat up on the edge of the bed and kicked Karl roundhouse style in the stomach.  Karl flew back towards the wardrobe door in your bedroom and he laid there on his side.  The kick was so severe that it caused the internal tissue known as the „mesentery‟ (we were advised during trial) to

tear at a place called „the ileo-colic junction‟.   Such was your fury in that moment that you stood up and kicked Karl again, this time even harder.  The kick rammed him up against the wardrobe door in your bedroom.  With his back having nowhere to go behind him, your kick pressed Karl‟s  pancreas into his spine with so much force that you split the pancreas.  The wound divided Karl‟s splenic artery from the vein causing massive internal bleeding.  Karl bled to death in a short time.

[12]     If more proof were needed about the viciousness of that second kick, it comes in the fact that Karl‟s left forearm and right elbow had carpet burns on them – the effect of him being skidded across the carpet by your kick.

[13]     You then began cleaning up the toilet paper but you came to notice that Karl was now very sick indeed.  His legs were convulsing uncontrollably, his face was pale, his lips were turning purple and he could not breathe.

[14]     You realised what had happened and you picked Karl up, put him in your truck and raced to Whanganui Hospital arriving at 4pm.

[15]     Karl was effectively dead on arrival.

[16]     You initially did not accept responsibility for Karl’s death.   You were no doubt horrified at what you had done and perhaps understandably sought to cover it up.  In time however, you have come to terms with your actions and accepted that it was you who caused Karl’s death.

[17]     No-one says you intended to kill Karl.  We all accept that you did not.  The Crown argued during your trial that you nevertheless intended to injure him.  You knew that your attack on him could possibly have killed him and you took the risk anyway. The jury agreed that this is how it happened.

[18]     On reading the letter you handed up to me this morning and comments from your chaplain in the prison, I get the impression you are now taking the journey towards that realisation yourself.

Personal background

[19]     I am just going to talk about your personal background.

[20]     You are 23 years old.  You were yourself abused by a stepfather when you were young and you say the beatings you received were worse than those Karl got. Your mother confirms that she spent time in women‟s refuges and that her children witnessed the beatings that she received.   You left home at 15 largely because of your stepfather.  The messages you learnt as a child were that you should “harden up” and you saw this as a good thing to pass on to your own family.

[21]     You have been associated with gang life for some time through family and friends.    You  have  been  a  regular  user  of  drugs,  both  methamphetamine  and cannabis.   You say that in the 12 months leading up to Karl‟s death you smoked cannabis daily, and you were always stoned.

[22]     I am pleased to say you are coming to terms with what you have done.  Your stance once  you admitted to causing Karl‟s  death was that it was all a terrible accident and you looked to minimise your involvement and the blame you carry. Although  you say (and  we all accept) that  you never intended Karl to die, the impression I gained from Reverend Goodwin, is that you accept that you did a terrible and cruel thing and you accept blame for it.  Reverend Goodwin describes you as deeply remorseful – that is extremely sorry for what you have done.

[23]     You say in your letter that it was a heat of the moment snap thing and that you are going to suffer for the rest of the life for that.  I am just going to quote this because this is your voice:

... I‟m not at all trying to justify my action of that day because I can‟t.  I would just like you to know that it wasn‟t the real me that day, and was so out of caracter (sic) for me to do such a thing.

[24]     You were clearly under stress in October 2009 both because of your need to hide your relationship with Lilah and because you were stuck in that twilight zone of the gang/drug scene in Whanganui where brutal and unacceptable social behaviour becomes normal.  You also grew up to think that violence was a good response to

problems in your life and you were unable to control your anger – in fact you had never had to control your anger in the past.  I accept also that on 24 October when you kicked Karl, you were stoned again.

[25]     I  have  also  been  provided  with  Victim  Impact  Statements  from  Royden Check and Dreenagh Katene who  I acknowledge  as being present in  court this morning; from Donna Rose Perigo and Mahina McGregor-Check.  I am not going to go through those but I want to acknowledge that I have read them and understand their contents.

Sentence

[26]     Mr Ngatai-Check there is no question that you should be sentenced to life imprisonment for what you have done – you don‟t argue for anything else.  The only real debate is whether your offending and your circumstances mean you should also receive the mandatory minimum period of imprisonment of 17 years.

[27]     The  law  says  if  you  are  convicted  of  murdering  someone  who  was particularly vulnerable because of his or her age, health or for any other reason then you must be sentenced to a minimum period of imprisonment of at least 17 years. The thinking here is that if you kill someone who is much smaller, weaker, or younger than you or is for some other reason helpless then the penalty should be greater than otherwise.   The law says that principle will apply unless it would be manifestly unjust to apply it.  I think manifestly unjust here means obviously unfair.

[28]     There is no argument that Karl was vulnerable not just because he was only two years old but also because he was particularly small for his age and because you had control of, and responsibility for, his wellbeing.  The question for me is whether it would be obviously unfair for that 17 year minimum to apply in your case?

[29]     You have a background that has driven you to violence as an adult. You were as I have said, caught in that gang/drug twilight zone that normalised stupid brutality. That environment that said violence is not just OK, it‟s downright cool.  You were stressed because you were in a relationship you could not publicise.  All of these

factors were made worse by the fact that you were stoned on the day and you probably did not want to have baby Karl dumped on you again when you would rather just chill.  I understand that all of these factors added one on top of the other made it easier – bit by bit – for you to cross a line no adult should ever cross.  You did a monstrous thing Mr Ngatai-Check, but I do not think you are a monster.

[30]     Except  for  the  relationship  with  Lilah  these  are,  sadly,  very  common background characteristics of serious offending in this country.

[31]     In your favour there is no history on your part of abuse or cruelty towards Karl.  This appears to have been a one-off event.  Nor do you have a general record of violent behaviour.  The prosecution accepts that this was out of character.  The prison chaplain says you are genuinely sorry for what you did and you are motivated to turn away from crime and violence.  You reflect these things in the letter that you handed up today.  And at 23 you are relatively young.  Another point in your favour is that you immediately took steps to save Karl‟s life.  You did not attempt to cover up the problem as others might have done.

[32]     The factor that most obviously counts in your favour is that you did not intend to kill Karl.   That is although your attack was vicious; it was not made in order to take his life.   This was spontaneous anger and aggression, not a planned attack.  In an ordinary sentencing that would count for something.  But of course that only tells part of the story.

[33]     There were three separate assaults here, each worse than the one before.  And I want to underscore they were cruel and vicious.  The first, breaking bones (even if accidentally, still with great aggression and physicality); the second, tearing internal tissue, the third, dividing a major internal organ.  You knew you could have hurt him badly by what you did but you did not care enough about the wellbeing of this little boy in that moment to control your temper and moderate your behaviour.  You were in a position of complete control and trust over Karl. And there can be no doubt that you cruelly abused that trust.   Not once.  Three times.   These would always have been grave aggravating features.

[34]     In light of these considerations I would have given you a starting point of

15 years as very similar cases have.   Does that mean that the minimum period of imprisonment of 17 years is obviously unfair?  Mr Ngatai-Check, I do not think so. It is true that you did not intend to kill Karl but in the case of vulnerable victims such as infants the offender does not often actually intend to kill the victim.  There are sadly too many cases like this.  The reason there is such a high minimum for this kind of vulnerability is that the key ingredients are the helplessness of the victim and the power of the offender.  It is so high because these little people are at our mercy. We can so easily kill them. The minimum is to warn us that we must not lose control around them. The consequences are too grave.

[35]     In this case Karl died because he was so small.  It was his helplessness and complete reliance on you, combined with your repeated attacks that make this crime so bad.  Perhaps it would have been different if there was just one blow in the heat of the moment.  But there were three.  In two quite distinct phases.

[36]     Your counsel and your letter have underscored your remorse today and I have every reason to believe that you are genuine in that and that as a result of the realisation of what you have done your life has changed.  That is important but I do not think it is so important that it entitles me to set aside the sentencing direction that Parliament has given in this case.

[37]     Previous cases in my view only adopt lower minimum sentences where there was some stand-out feature or features that made the sentence obviously harsh and wrong.  Mr Ngatai-Check I regret to say I do not think the factors in your favour show such a stand-out feature or features.   Mr Lawson quite rightly argues that I should make an overall assessment.   Even if there is not one stand-out feature in combination the story in your favour is powerful.  I see his point.  But even when I consider all  of  these  factors,  as  I have  gone through  them  and  I have listened carefully to counsel, I do not think that in combination they can be said to shade out Karl‟s vulnerability  or  the  viciousness  of  your  attack.    These  are  still  in  my assessment, and in my mind, the dominant features of your offending.

[38]     Mr Lawson very ably argued that you are entitled to parity.  That is there are cases much worse than yours with the same 17 year minimum.   He is right.   But there are also cases very similar to yours treated in the same way.  This seems to be a result of the way Parliament has decided the law should be crafted.  That of course is little concern of yours but I must sentence in accordance the words of the statute as they are given to me.

[39]     I am satisfied that Parliament intended that your case should be covered by the mandatory minimum.

[40]     You are sentenced to life imprisonment accordingly with a minimum period of imprisonment of 17 years.

[41]     Stand down please.

Joseph Williams J