The Queen v Ngawati - [2007] NZCA 416

IN THE COURT OF APPEAL OF NEW ZEALAND
CA296/07
[2007] NZCA 416
THE QUEEN
v
MATTHEW WILLIAM HEMI NGAWATI
Hearing:19 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:A Stevens for Appellant

S B Edwards for the Crown

Judgment:25 September 2007 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
REASONS OF THE COURT
(Given by Wild J)
[1]       Mr Ngawati appeals against a sentence of 12 months imprisonment imposed on him by Judge Kellar in the Dunedin District Court on 24 May 2007: DC DUN CRI 2006-012-3531. He had pleaded guilty to the charge of injuring with intent to injure, immediately it had been amended from an earlier, more serious, charge. This was post-depositions, but before trial.
[2]       The Judge granted Mr Ngawati leave to apply for home detention. Ms Stevens informs us that the Parole Board granted Mr Ngawati’s application for home detention on 22 August. His home detention will end on 22 November.
[3]       While not challenging the appropriateness of imprisonment, Ms Stevens contends that a six month term coupled with reparation of $2,500 was the appropriate sentence.
[4]       Mr Ngawati had been drinking with the victim and the victim’s two flatmates in a pub in Dunedin. He was invited back to their home. The offence occurred while Mr Ngawati and the victim were sitting in the lounge, drinking together. The victim’s two flatmates were not there.
[5]       Precisely what happened is unclear, since both men were intoxicated. There was apparently a verbal exchange, after which the victim told Mr Ngawati to leave. Instead, Mr Ngawati punched the victim several times in the head, causing him to fall through a window in the lounge, breaking it.
[6]       Mr Ngawati’s punches broke the victim’s jaw on both sides, broke his nose, inflicted cuts requiring stitching, and caused bruising to his face and head. After the swelling subsided, the victim was operated on and five metal plates were inserted into his jaw. He was in hospital for about a week. Judge Kellar summarised the impact of these injuries in this way:
[4]       In terms of the impact upon the victim, he says he is left feeling very insecure. He says he does not trust anybody anymore. As you are probably fully well aware, he spent seven days in hospital. He does not have any teeth now and he is having to wait for new dentures, the cost of which I am told will be covered by ACC. He continues to suffer pain for which he has to take medication and there is the possibility that he will have to have another operation to remove the steel plates if indeed that is possible. He also says that he does not sleep properly and so this incident has affected his life significantly.

[7] The Judge noted the Crown’s submission that the appropriate sentence was in the range 18 months to two years imprisonment, “by analogy to a guideline case on more serious offences with an appropriate reduction in…

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 Ngawati

Details

AGLC: The Queen v Ngawati [2007] NZCA 416
Case: [2007] NZCA 416
Decision Date: 25 September 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Matthew William Hemi Ngawati was heard on appeal against a sentence of 12 months imprisonment imposed by Judge Kellar in the Dunedin District Court on 24 May 2007. The defendant, Mr Ngawati, had pleaded guilty to injuring with intent to injure after the charge had been amended from a more serious charge. His sentence was under appeal on the grounds that a six-month term coupled with reparation of $2,500 was the appropriate sentence. The offence occurred when Mr Ngawati, who had been drinking with the victim, punched the victim several times in the head while they were sitting in the lounge of the victim’s home. The victim fell through a window in the lounge, breaking it and sustaining serious injuries including a broken jaw, broken nose, cuts requiring stitching, and bruising to his face and head.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the court should have ordered reparation. Counsel for the defendant argued that the violence, although serious, was at the lower end, and that Mr Ngawati was not a recidivist offender in terms of violence. They further argued that 12 months imprisonment was not the least restrictive outcome that was appropriate in the circumstances. However, the court was not persuaded by these arguments and found that the sentence imposed was not manifestly excessive. The court also noted that it was unfortunate that the Judge did not order reparation, but found that this was now an opportunity missed.

The Court of Appeal dismissed the appeal, holding that the 12-month sentence imposed was not manifestly excessive. The court found that the violence was of a significant degree, and that the sentence imposed was within the appropriate range for the offence. The court also noted that the defendant had offered to make reparation to the victim, but that this was now an opportunity missed. The appeal was accordingly dismissed.

Orders