Ngamotu v Department of Corrections

[2015] NZHC 1814

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-33

CRI-2015-443-34 [2015] NZHC 1814

BETWEEN

CHARLES TEPOPOKI NGAMOTU

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	28 July 2015
Counsel:	K R Pascoe for Appellant S J Simpkin and A W M Britton for Respondent
Judgment:	3 August 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 4 June 2015 the appellant, Charles Ngamotu, pleaded guilty to  three charges  of breaching prison  release conditions  and  one charge of male assaults female.   Mr Ngamotu was sentenced to 12 months imprisonment (concurrent) by Judge Roberts on each of the breach charges, and two months (concurrent) on the assault charge.   Mr Ngamotu now appeals his sentence on the breach charges as being manifestly excessive.   He says that the appropriate end sentence  for that offending  was  four  and  a  half  months  imprisonment.    He  does  not  appeal  his sentence on the assault charge.

Facts

[2]      On 2 December 2013 Mr Ngamotu was convicted and sentenced on charges of male assaults female and burglary.   His victim on that occasion was a former

NGAMOTU v DEPARTMENT OF CORRECTIONS [2015] NZHC 1814 [3 August 2015]

partner.  The same person was the victim of the offending that is the subject of this appeal.

[3]      Mr Ngamotu was released from prison on 4 June 2014.  He was subject to

Court imposed release conditions that he not associate with his victim.

[4]      On 29 October 2014 Mr Ngamotu was sentenced to a further nine months imprisonment on charges of breaching those conditions, and of male assaults female, possession of an offensive weapon and wilful damage.  That assault again involved his former partner.  Mr Ngamotu was released from that sentence of imprisonment on 28 January 2015.  It was following that release that the offending for which he was sentenced by Judge Roberts to 12 months imprisonment occurred.

[5]      Mr Ngamotu was observed with his former partner on 28 and 29 January.  On

15 March he went to her house where a domestic related incident occurred.  He went to that property again on 18 April.  The statement of facts to which he pleaded guilty records that he let himself in through the front door, which had been left temporarily unlocked, at 4.30 am.  He went into his victim’s bedroom.  She woke up to find him rummaging around the room, looking for her cashflow card.  The victim asked Mr Ngamotu to leave.  Mr Ngamotu yelled at her and took her phone.  She tried to take the phone back, but Mr Ngamotu punched her with some force in the left eye area. Mr Ngamotu then left his victim’s address with her phone. As a result of the assault, she suffered bruising and pain around the left eye, but did not require medical attention.

[6]      Mr  Ngamotu,  who  is  now  26  years  old,  has  a  lengthy criminal  history, including burglary, theft, aggravated robbery and other breach offending.

Challenged sentencing decision

[7]      In sentencing Mr Ngamotu, the Judge took the three breach charges as the lead offending.   He noted Ms Pascoe’s submission that Mr Ngamotu’s victim had been “courting the defendant seeking obviously and encouraging association”.  He nevertheless considered that the combination of Mr Ngamotu’s behaviour, which he said  involved  “sustained  defiance”,  justified  a  starting  point  of  12  months

imprisonment.  He added four months to that starting point to take account of the aggravating factor of Mr Ngamotu’s previous similar offending.   He reduced that sentenced by the same amount to take account of Mr Ngamotu’s guilty pleas.  At the end of his sentencing notes, he imposed a two months (concurrent) term of imprisonment on the count of the male assaults female charge.

Appeal

[8]      For  Mr  Ngamotu,  Ms  Pascoe  emphasised  that  Mr  Ngamotu’s  behaviour which gave rise to the first two of the breach offences could not be seen as being particularly serious: in both cases it would appear he had met with his former partner in a relatively public place (on 28 January outside, I understand, the Court when he was released from prison).   Ms Pascoe acknowledged that the third breach charge involved more serious behaviour.   However, that behaviour in total did not, she argued, call for a sentence of 12 months imprisonment.

[9]      Ms Pascoe did not challenge the concurrent sentence for the male assaults female charges.   But, looking at the sentence in its totality – both for the breach offending and the male assaults female offending – she maintained her submission that a period of 12 months imprisonment was manifestly excessive.

[10]     For the Police, Ms Simpkin argued that the 12 month sentence for the breach offending, considered on its own, could not be seen as manifestly excessive.  When the offending as a whole was taken account of, that is including the male assaults female, that submission became even more obvious.

Analysis

[11]     Mr Ngamotu has, over the last 18 months, been convicted on three occasions for assaulting his former partner and on two occasions for breaching release conditions by associating with his former partner.

[12]     I   acknowledge   that,   in   the   context   where   it   seems   apparent   that

Mr Ngamotu’s victim has approached him on perhaps two of the three occasions, the

12 months sentence on the three breaches of release conditions could be argued to be

stern.  It is another question whether that sentence could be categorised as manifestly excessive.  When, however, account is also taken of the male assaults female charge, for which a two month concurrent sentence was imposed, and Mr Ngamotu’s history of offending, I do not think there can be any challenge to the sentence of 12 months imprisonment that Mr Ngamotu received.  It would, in my view, simply be wrong to consider the sentence imposed for the breach offending separately from the sentence imposed for the male assaults female, as Ms Pascoe initially argued I should.

[13]     Mr Ngamotu’s appeal is, therefore, dismissed.

“Clifford J”

Solicitors:

Nicholsons, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent