The Queen v Deon Ngahere - [2002] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/02

THE QUEEN

DEON NGAHERE

Hearing:	17 September 2002
Coram:	McGrath J Chisholm J Chambers J
Appearances:	P J Morgan for the Appellant J M Jelaś for the Crown
Judgment:	25 September 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

Introduction

The appellant, who is 27 years old, was convicted by a jury following trial in the District Court on two charges of indecent assault of a 41 year old woman. He was sentenced to four years imprisonment. He appeals against his sentence on the ground that it was manifestly excessive.

Background facts

At approximately 5am on 19 May 2000 the appellant arrived at his father’s home. He had been working at a local bar as a doorman, and after work had been drinking with friends. The complainant, who was spending the night at the house, is a sister of the partner of the appellant’s father. The appellant has known her for 25 years. The offending, which on the jury’s verdicts was proved, was as follows. When the appellant arrived at the house the complainant was asleep on a mattress on the lounge floor, where other members of the extended family were also asleep. She was lying beside her young child and holding the child in her arms. The appellant lay down beside the complainant, who had her back to him. He stroked her leg, then took her hand, placed it on his penis, and rubbed it up and down. He then masturbated himself and ejaculated onto her lower back and T-shirt. The appellant then got up and left and went to sleep in another room. At the trial the complainant gave evidence that she was aware of what was happening to her but was too frightened to protest or resist, in part because of her concern for her young child who was sleeping with her. A victim impact statement demonstrates that the complainant was deeply affected by the incident.
A complaint was made to the police and an investigation was undertaken to establish which of the people present in the house was the offender. A blood sample was taken from the appellant by order of the High Court and this gave a DNA match with the semen found on the complainant’s T-shirt. Three charges were then laid against the appellant. The first was of indecent assault and related to the appellant touching the complainant’s upper legs. The second charge was of sexual violation by unlawful sexual connection by the appellant’s digital penetration of the complainant’s genitalia. The third charge, which was of indecent assault, related to the appellant making the complainant masturbate him and his ejaculation on her. At his trial, the appellant maintained that he had lain down beside the complainant intending to sleep and that she initiated the incident. He later said “he just went with the flow”. He was convicted by the jury of the two indecent assault charges and acquitted of the charge of sexual…

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 The Queen v Deon Ngahere

Details

AGLC: The Queen v Deon Ngahere [2002] NZCA 256
Case: [2002] NZCA 256
Decision Date: 25 September 2002

CaseChat Overview and Summary

In the case of The Queen v Deon Ngahere, the appellant was convicted by a jury of two counts of indecent assault against a woman over the age of 16 and was sentenced to four years imprisonment. The appellant appealed against his sentence, arguing that it was manifestly excessive. The Court of Appeal of New Zealand was tasked with determining whether the sentence imposed was appropriate in light of the circumstances of the case.

The legal issues before the Court of Appeal were whether the sentencing Judge had erred in his assessment of the seriousness of the offending, and whether the sentence imposed was manifestly excessive. The Court considered the nature of the offending, the impact on the victim, and the absence of mitigating factors. The Court also examined relevant case law and sentencing principles to determine an appropriate sentence.

The Court of Appeal found that the Judge was correct in characterising the indecent assault as a serious one of its kind and a gross abuse. However, the Court considered that the offending was opportunistic rather than predatory and did not involve digital penetration. The Court found that the sentence of four years imprisonment was manifestly excessive and replaced it with a sentence of 2½ years imprisonment to be served concurrently with the sentence on count 1.

The Court of Appeal allowed the appeal and set aside the sentence of four years imprisonment on count 3, replacing it with a sentence of 2½ years imprisonment. The Court emphasised the need for community denunciation of the gross indecent assault but also took into account the circumstances of the case, including the absence of digital penetration and the appellant's first conviction for sexual offending. The Court found that a sentence of 2½ years imprisonment was appropriate in the circumstances.

Orders