The Queen v Ngawaka

[2008] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND

CA629/07
[2008] NZCA 5

THE QUEEN

v

JOHN ALVIN NGAWAKA

Hearing:14 February 2008

Court:Glazebrook, J Hansen and Wild JJ

Counsel:C W J Stevenson for Appellant

N P Chisnall for Crown

Judgment:14 February 2008 

ORAL JUDGMENT OF THE COURT

A        THE APPEAL AGAINST SENTENCE IS DISMISSED.

BThe appeal against refusal to grant leave to apply for home detention is allowed.

REASONS OF THE COURT

(Given by John Hansen J)

[1]       The appellant was sentenced to one year, nine months’ imprisonment on one charge of cultivation of cannabis.  He appeals on the ground that the sentence was manifestly excessive.  He also appeals on the ground that he ought to have been granted leave to enable him to apply for home detention. 

[2]       Having classified this as category 2 Turewi offending, the High Court Judge imposing sentence took a starting point of three years, He then made a very substantial allowance of some 42 per cent, leading to the end sentence.  We have heard submissions and considered the facts relating to the offending.  It is clear that the sentence imposed is within the acceptable range, and the appeal against sentence is dismissed.

[3]       In relation to the appeal against the refusal to grant leave for home detention, we note that in the sentencing notes the pivotal factor for the Judge is the lack of insight by the appellant into his offending.  There, the Judge refers to the comment that was supposedly made to the probation officer; "If I'm careful how I move or sell it to I should be all right."  Understandably that was an important factor to the Judge in refusing to grant leave for home detention. 

[4]       However, we now have an affidavit sworn by the probation officer.  She confirms that while those comments were made in the course of discussion, the appellant never suggested during the course of the interview that he maintained such an outlook.  Rather he was explaining the way he felt at the time he was involved in the offending.

[5]       Given the way the matter is expressed in the probation report it is understandable the Judge took the view he did.  But if that particular comment is now properly set aside, there are powerful factors that support the granting of leave.  Those factors are the fact that he has had no drug offending since 1985; significant health problems; that he has the care of children; that he has undergone a methadone programme and is described as a “model patient”; that he himself considers he needs help; and the probation officer considers he would benefit and take advantage of rehabilitative programmes.

[6]       As Mr Chisnall, from the Crown, responsibly conceded, they are strong factors weighing in favour of the granting of leave.  The only cautionary note that the Crown submitted to us was the lack of supervision in the home environment.  That of course may be so, but in our view that is a matter for the parole board to consider when they determine whether or not to grant leave.

[7]       Accordingly, we are satisfied that leave should have been granted.  The appeal is allowed to that extent and leave is granted to apply for home detention.

Solicitors:
Denning Chambers, Lower Hutt
Crown Law Office, Wellington

Solicitors: