R v Ngatai [2020] NZHC 2106 (14 August 2020)

Last Updated: 20 August 2020

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-083-1453 [2020] NZHC 2106

THE QUEEN

v

TYSON ELLIS NGATAI

Appearances:	C Wilkinson-Smith and C A Middleton for the Crown P M Keegan and J Waugh for Mr Ngatai
Sentencing:	14 August 2020

SENTENCING REMARKS OF GRICE J

• [1] Mr Ngatai you are here today charged with murder.¹ You also face some other charges of:²

(a) theft (representative);³

(b) unlawful taking of a motor vehicle;⁴ and

(c) dishonestly using a document (representative).⁵

• [2] These relate to incidents following the murder of the victim.

¹ Crimes Act 1961, ss 167 and 172.

2. This sentencing was delivered orally on 14 August 2020. The written form has been edited and footnoted before distribution.

³ Crimes Act 1961, ss 219(1)(a) and 223(b); maximum penalty of seven years’ imprisonment.

⁴ Section 226(1)(a); maximum penalty of seven years’ imprisonment.

⁵ Crimes Act 1961, s 228(1)(b); maximum penalty of seven years’ imprisonment.

R v NGATAI [2020] NZHC 2106 [14 August 2020]

• [3] You are also subject to the three-strikes regime.⁶ This means you face sentencing on a stage two offence.⁷ I will describe what that means later.

• [4] You received a sentence indication from me in June of this year in which I concluded on the information I had then that a sentence of life imprisonment with a minimum period of imprisonment (also called a MPI) of 16 years should be imposed.

• [5] This was without the benefit of the other reports which I now have before me today. In particular they relate to the pre-sentence report information and the report on cultural matters obtained under s 27 of the Sentencing Act 2002 (Act).

Background

• [6] Mr Ngatai many of the comments I am going to make in relation to the offending are the same as I made at the sentence indication.

• [7] You were released from prison in April 2019 and one of the conditions of your release was that you did not come to Whanganui but you came anyway.

• [8] On 20 September 2019 you were in Whanganui. You had been staying with the victim regularly and had a relationship with her for about six months. You had been moving between Whanganui and an address in Manaia.

• [9] On that day the two young children of the victim were staying with other family members. You messaged her to see if you could stay with her. She said yes. After dinner you got into an argument, which you describe as a very serious argument, apparently about what you were going to do that evening. You became angry and say that was fuelled by drugs.

• [10] After a struggle you grabbed the victim by her throat and squeezed her throat until she lost consciousness. You then stomped on the back of her head with your foot, dragged her body through the house to another room and covered her with blankets where you left her. You then took her purse and EFTPOS card. You moved mats over

⁶ Sentencing Act 2002, ss 86A-86I.

⁷ See [30] for stage one offence.

the bloodied areas of the carpet and ensured the curtains were closed before you left the house.

• [11] A friend picked you up from the house and went to the liquor store where you used the victim’s EFTPOS card to buy alcohol. Then you withdrew cash on her card. You were dropped back at the victim’s house that night. Then you drove away in her car, took more money out of her ATM account and then you went to a bar with friends and stayed the night with a friend.

• [12] You returned the next day to the house on two occasions for about 10 minutes each time and took the victim’s cell phone.

• [13] The following day you put petrol into her car using her EFTPOS card and early morning the following day you again used the card. In fact, between 23–30 September you electronically withdrew all the money from her account. On 26 September you abandoned her car on a grass verge.

• [14] Between 20 September and 3 October, the victim’s whānau and her friends had been messaging or trying to call her to find out if she was alright. She did not return to collect her children when she was meant to and she missed other arrangements. You used the victim’s phone to text replies as if she were alive and well.

• [15] However, your text messages put family members on alert as did the neglect of her children as that was unlike her. The whānau lodged a missing persons’ report on 30 September. On 3 October, as a result of the report, the victim was found dead in her home.

• [16] It is not clear when the victim died, although the pathology examination indicates that she had died by 26 September. The post mortem examination, revealed small blood spots around her mouth, eyes and face and scratches on the victim’s back indicating that she had been strangled. She also had a fractured skull behind her right ear and injuries consistent with blunt force trauma to her head.

• [17] You were arrested on 4 October 2019.

Approach to sentencing

• [18] You pleaded guilty to the charges, including murder. At the time you pleaded guilty, following the sentence indication, you were given a stage two warning and a written notice setting out the consequences of a conviction for any further serious violent offending committed after that warning had been given.⁸

• [19] For a stage two murder offence there is a presumption of a sentence of life imprisonment without parole unless such a sentence is manifestly unjust. ⁹

• [20] If the finding was that it was manifestly unjust the Crown submitted that a sentence with a minimum term of imprisonment of 17 years should apply.¹⁰ The Crown said that this offending was in that category as the murder was committed with a high level of brutality, cruelty, depravity or callousness.¹¹

• [21] As I set out in my sentence indication I then needed to consider whether it would be manifestly unjust to impose a 17 year (or higher) minimum period of imprisonment.

• [22] If I determined that a 17 year minimum period of imprisonment should not be imposed then I was required to consider whether a 10 year MPI or minimum period of imprisonment should apply and adjustments from there.

Three strikes regime

• [23] The Crown described the stage one offending of which you were convicted as serious. You had encouraged a co-defendant to punch the head of the victim on multiple occasions and encouraged the co-defendant to hold a boning knife above the victim’s head threatening to cut the victim into pieces. The charges that you faced there were common assault, theft and aggravated robbery. You were sentenced to five years and five months’ imprisonment.

⁸ Sentencing Act 2002, s 86F(4).

⁹ Section 86E. The starting point for a stage two murder is the three strikes’ regime.

10. The section is only applicable if the offending has one or more of the features mentioned in the list at s 104(1)(a)-(i) of the Sentencing Act 2002.

¹¹ Section 104(1)(e).

• [24] There is a presumption that a defendant sentenced for a stage two murder will be sentenced to life imprisonment without parole unless it is manifestly unjust to do so, and I now turn to consider what “manifestly unjust” means.

• [25] It involves an intensely factual inquiry and the leading case which the Crown referred to me was R v Harrison; R v Turner.¹² In that case the Court of Appeal said:

13

The case for a finding of manifest injustice must be clear and convincing. This follows from the use of the word “manifestly”. However such cases need not be rare and exceptional.

• [26] The Court in that case noted that what was required was an assessment of the circumstances of both the offending and the offender. Relevant considerations in this case also include that you face a stage two and not a stage three offence, and I must consider the consequences of a whole-of-life sentence without parole. Mitigating factors must also be considered. These may include mental issues, health, age and the guilty plea.¹⁴

• [27] Weight must be given to the purposes and principles under the Sentencing Act before the minimum period of imprisonment considerations which are set out in the Act are taken into account. Those relevant factors are:

(a) whether the offender has any, or limited, ability to understand the relevance and importance of a first or final warning. That is not relevant here;

(b) whether the factual matrix of qualifying offences, points to a higher or lower level of culpability;

(c) whether the offender is likely to reoffend, therefore engaging the need for community protection; and

¹² R v Harrison; R v Turner [2016] NZCA 381.

¹³ At [108](b).

¹⁴ Sentencing Act 2002, s 9(2).

(d) the offender’s culpability in the qualifying offending.

Should there be a life sentence without parole?

• [28] I first turn to whether there should be a life sentence without parole. Mr Keegan on your behalf submitted, against the imposition of a life sentence without parole, that you were only 26 years of age at the time of the offending. This of itself signified some prospect for rehabilitation. The Crown agreed that with the benefit of programmes and treatment rehabilitation may be possible in the circumstances.

• [29] Mr Keegan also submitted that while the level of violence was serious, it was not prolonged nor did it involve a weapon. He said the offending was not premeditated. He also noted that it was a stage two and not a stage three offence. In addition, you pleaded guilty. I take that into account and that there is a certain acceptance of wrongdoing by pleading guilty.

• [30] The Crown agreed that the circumstances of the offending and the factors put forward by Mr Keegan made it manifestly unjust to impose a life sentence without parole.

• [31] I agree. I take the view that of particular relevance was your age at the time of offending. On present life estimates for your life expectancy you would be in jail for 50 years if you were sentenced to life imprisonment without parole.

• [32] I also take into account that the violence was serious, but the evidence suggested that it was not prolonged nor does it suggest a weapon was used.

• [33] I note it was also a stage two not a stage three murder offence. Finally, I take into account the acceptance of wrongdoing to the extent this was evidenced by a guilty plea.

• [34] Therefore, I am of the view that the minimum period of imprisonment would be manifestly unjust and I move to consider whether it was appropriate to impose a minimum sentence of imprisonment of 17 years.

Section 104 analysis: whether to impose a 17 year minimum period of imprisonment

• [35] This analysis is also guided by the Act. Section 104 sets out a number of factors. A minimum period of imprisonment of at least 17 years must be imposed if the case fulfils one or more of a number of criteria set out unless it would be manifestly unjust. The factors in s 104 relevant to this case are:

104 Imposition of minimum period of imprisonment of 17 years or more

(1) The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

...

(g) if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or

...

(i) in any other exceptional circumstances.

• [36] The Court of Appeal in R v Williams¹⁵ said those factors should be approached as follows:¹⁶

(a) First, the Court must assess the degree of culpability in relation to the range of other murder cases, that is comparing other factual situations of murders as far as possible and this can include factors about the offending and the offender.

(b) Secondly, regard must be had to the policy of the section that the presence of one or more factors suffices to make the offending serious enough to justify a 17 year minimum period of imprisonment.

¹⁵ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).

¹⁶ At [45]-[54].

• [37] The relevant circumstances that the Crown pointed to as making this case eligible for consideration of a 17 year MPI are that the murder was committed with a high degree of brutality, cruelty, depravity or callousness.

• [38] The Crown submitted that this case compared and was equivalent to a number of cases of offending which were held to be in that category.

Does s 104(1)(e) apply?

• [39] Both the Crown and Mr Keegan pointed to relevant observations in R v Gottermeyer.¹⁷ In that case the Court said when looking at s 104(1)(e), the Court should note the specific points:¹⁸

• [79] Turning then to the interpretation of s 104(1)(e), we note the following specific points:

(a) There is no particular difficulty involved in the meaning of the expressions “brutality” (savage violence), “cruelty” (callous indifference), “depravity” (moral corruption) “callousness” (insensitive and cruel disregard for others).

(b) The meanings of “cruelty” and “callousness” overlap, at least to some extent.

(c) The four expressions describe the nature of the murder in objective terms. The focus is on the manner in which the murder was actually committed. Issues of planning and victim vulnerability, which are covered separately in s 104(1)(b) and (g) respectively, are not to the forefront in the context of s 104(1)(e).

(d) The brutality, cruelty, depravity or callousness must be at a “high level”. As this Court has pointed out many murders will involve elements of brutality, cruelty, depravity or callousness, but only those that involve one or more of those elements to “a high level” will be within s 104(1)(e). The Courts are therefore required to distinguish between different murders depending on the level of brutality, cruelty, depravity or callousness involved in them.

¹⁷ R v Gottermeyer [2014] NZCA 205.

¹⁸ At [79] (footnotes omitted).

• [40] Mr Keegan also pointed out comments in R v Slade¹⁹ that every murder has, in some way, elements of brutality, cruelty, depravity or callousness but what is required is a “high level” of that conduct.

• [41] The Crown, citing R v K, noted that the defendant’s actions following a murder can also be considered under the heading of callousness (s 104(1)(e)).²⁰

• [42] The Crown cited R v Te Hiko²¹ involving a significant brutal attack on the victim including the use of a weapon (an iron pole). Following the attack the defendant dressed the victim and put her to bed then went off and slept. The high level of brutality there was commented on by the Court of Appeal.²²

• [43] The Crown submits here that while this case lacked the prolonged domestic violence context which was present in many of the cases it cited²³ and that there was no weapon here, there was a high degree of callousness after the murder. The Crown also notes no medical help was given to the victim, despite the fact she must have vomited at one stage.

• [44] It also points to the fact that Mr Ngatai used the victim’s phone to text her family to delay the making of a missing person’s report and her discovery. You also stole her money and took her car. You showed a complete lack of remorse, according to the Crown. This callousness has particularly caused distress and trauma for the victim’s whānau. The victim impact statements note that the last messages from who they thought was from their sister were actually from you. This revelation was very disturbing, distressing and upsetting for them.

• [45] Mr Keegan, on your behalf, focussed on distinguishing your case from R v Korewha.²⁴ In that case, the defendant was sentenced for murder and injuring with intent to injure. Mr Korewha had a deteriorating relationship with his partner. On one

19. R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 (CA) at [40]. This case is also cited in R v Gottermeyer, above n 19, at fn 34.

²⁰ R v K [2020] NZHC 233 at [62].

²¹ R v Te Hiko [2017] NZHC 1260, which was affirmed in Te Hiko v R [2019] NZCA 41.

²² Te Hiko v R, above n 21.

23. The Crown cited R v Te Hiko, above n 21, Davis v R [2019] NZCA 40, Christison v R [2017] NZCA 168 and Blake v R [2016] NZCA 82.

²⁴ R v Korewha [2015] NZHC 308.

occasion, he punched the victim a number of times in the face after an argument in the car. Several months later, after an argument with the victim, Mr Korewha tracked her down, found her in a paddock where she was hiding and launched a “violent attack” on her. The mechanism of death was unknown but Mr Korewha lay with her as she died. The victim sustained very serious injuries, including a basal skull fracture running through the base of her skull from ear to ear – it was said to be a very “severe force injury often seen in high speed motorcycle collisions or falls”, according to that pathologist.²⁵ No assistance was sought there and the defendant ran away after concealing the body. He pretended the victim was still alive by actively supplying information as to her whereabouts and giving supposed sightings over the next 17 days. That murder and the actions following it attracted an MPI of 17 years.

• [46] However, while the Judge indicated that there was the required high level of brutality, callousness and cruelty in that case it was by a reasonably fine margin. The subsequent hiding of the body in the bush and the act of concealment pushed the offending beyond that threshold.²⁶

• [47] Mr Keegan submitted that in comparison, in this case there was a lack of pre- meditation nor was there any tracking of the victim as occurred in R v Korewha.

• [48] Additionally, Mr Keegan submitted that your actions here were impulsive. He emphasised there was no weapon used. The evidence suggests there was no prolonged violence which has been a feature in many of the cases in which a 17 year MPI was imposed. The evidence as to when the victim died is not clear. Mr Keegan suggested your actions following the murder to cover things up appeared to be “unsophisticated and panicked”. Nevertheless you did steal the victim’s money and her car. At the same time you must have known that detection would be inevitable. Your unsophisticated actions, as Mr Keegan described them, did not thwart the investigation but rather delayed it.

²⁵ R v Korewha, above n 24, at [11].

²⁶ At [23].

Analysis

• [49] I conclude that the circumstances of the murder did not take it to the high level required under s 104(1)(e) in comparison to the other cases I have discussed. However, the actions after the murder must also be considered.

• [50] They included the theft of the car and the phone, the use of the EFTPOS card, emptying the victim’s bank account of over $1000 and the texting to avoid detection. These must be taken into account when considering the depravity and callousness of the offending. However, at the same time the steps you took were relatively unsophisticated. I consider the circumstances of this case come close to but does not reach the level of brutality, callousness and cruelty seen in R v Korewha and similar cases.

• [51] As I noted, the Korewha facts included premeditation, the defendant lying with the victim while she died and watching her die without assistance, the use of a weapon in the murder and the active concealment of the murder by the diverting of inquiries.

• [52] There was some concealment attempted here by the texting, covering the victim alone in the house and attempting to secure the house, so no one would find her immediately.

• [53] Nevertheless, standing back and looking at it as a whole and, in comparison with those similar cases, I conclude that a 17 year MPI should not apply in this case.

• [54] I then turn to consider under s 103 the setting of a MPI between 10 years and 17 years. That requires a further analysis.

Section 103 analysis: setting an minimum period of imprisonment between 10 and 17 years

• [55] The Sentencing Act states that where it is not manifestly unjust to impose a sentence of life imprisonment a judge must impose a sentence with no less than a 10 year MPI. That period of imprisonment is reached having regard to comparable cases and the statutory purposes set out in s 103(2). This provides:

103 Imposition of minimum period of imprisonment or imprisonment without parole if life imprisonment imposed for murder

...

(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending;

(b) denouncing the conduct in which the offender was involved;

(c) deterring the offender or other persons from committing the same or a similar offence;

(d) protecting the community from the offender.

...

• [56] I now turn to the submissions made on behalf of the Crown and Mr Keegan.

Crown submissions

• [57] The Crown submits that in the absence of the imposition of a 17 year MPI it was appropriate that a MPI of 15 to 17 years should be imposed as a final sentence.

• [58] The Crown submitted that an aggravating factor was the previous convictions. This, it said, should lead to a one-year uplift because the convictions suggested a “concerning history of serious violence”. As well as the strike one offence, which I have described, the Crown notes a 2011 wounding offence would have attracted a strike-warning if you had been 18 years or older at the time. There you attacked a victim in a park, stomped on his head while the victim was on the ground and smashed the victim’s head into a concrete kerb. You then stole the victim’s phone and passport.

• [59] The Crown also said that the strength of its case should be considered, and any remorse is coloured by the nature of the killing and in particular your actions after the murder.

Defence submissions

• [60] Mr Keegan on the other hand submitted that an MPI of 13 to 14 years was appropriate. He noted a number of comparable cases which I refer to now:

(a) R v Jefferies:²⁷ where the defendant was convicted for the murder of a former partner where it was considered a spontaneous action. The relationship had broken down after a few months and after the murder, the defendant attempted to conceal his actions by using the victim’s phone and a fit-bit. A 11 year MPI was imposed in that case.

(b) R v Callaghan:²⁸ after a brief relationship with the victim ended, in which they had a child and shared custody, the victim and the defendant had arranged to meet to discuss the child’s schooling. During that discussion, the defendant struck the victim a number of times on the head and face, using a blunt object. The victim died. No help was given to her and the defendant tried to cover up his involvement by dismembering her body. The starting MPI in that case was 11 years, with a four-year uplift for the post-murder conduct. Mitigating features included no convictions, substantial remorse and the defendant had been an active member of the community through his professional work. This led to discounts of six months and 15 to 20 per cent for the guilty plea, a final MPI of 13 years and eight months.

(c) R v Roper:²⁹ the defendant murdered a former partner. There had been previous violence in their relationship and a protection order had been made against the defendant. They had argued before the murder and it was evident he had strangled her. The defendant took the victim’s car, stole the victim’s laptop and withdrew money from her account. The defendant attempted to conceal the murder for several days and unsuccessfully attempted to tamper with witnesses. The aggravating factors there were the resumed contact, history of abuse, attempts to

²⁷ R v Jefferies [2018] NZHC 2363.

²⁸ R v Callaghan [2012] NZHC 596.

²⁹ R v Roper [2013] NZHC 1687.

avoid detection, theft and the impact on surviving victims. The defendant was given an MPI of 14 and a half years’ imprisonment.

• [61] Mr Keegan sought a discount for the guilty plea, which he said was an acknowledgment to the family, and said should warrant a one to two year discount.

Analysis

• [62] In the sentence indication I analysed the offending and I concluded that it was of a serious nature and accepted the Crown’s list of aggravating factors in relation to the offence. That included the violence, the extent of harm caused to the whānau evident from the victim impact reports, the abuse of your position of trust as the victim’s partner, and that the offending occurred while you were serving a sentence, having only been released months earlier. In addition, it submitted the previous convictions warranted an uplift.

• [63] Balancing these factors and comparing the circumstances of this offending with the other cases with similar factual backgrounds I concluded in the sentence indication that the MPI should lie at the higher end of the 10 to 17 year range in which I was considering imposing the sentence.

• [64] Such a sentence I considered was necessary in particular to hold you accountable for the harm not only to the victim but to the family, community as well as to denounce the offending and to deter others and to protect the community.

• [65] For those reasons, I concluded that a term of imprisonment with an MPI of 16 years was appropriate on the charge of murder. That sentence indication however was given without the benefit of the reports which I have now available to me. I now turn to consider those in more detail.

• [66] I have the pre-sentencing report and a s 27 cultural report as well as further submissions from the Crown and the defence before me.

Victim impact statements

• [67] Before I go any further I would like to note the victim impact reports and the statements we have heard today. I had some of those before me at the sentence indications but today I have had the benefit of hearing directly from the whānau. I heard from the victim’s aunt and sisters. I cannot do justice to the intense grief and loss they feel and their raw pain. They spoke today from the heart. All the victim impact reports refer to the loss of a good mother to her young children. A gentle, quiet, independent young mother doing her best to look after herself and her children. There will never be anything that can make up for their loss but they can be assured that their mother’s whānau spoke on their behalf today in a way which honoured their mother.

• [68] I also note that the victim’s mother could not be here today and is being protected by her family from the worst of the factual information surrounding the murder. The whānau emphasised how upset they were that the victim was left to die alone in her home and they could not say their last goodbyes to her. They feel that her spirit remains here until resolution today. They were also particularly disturbed by the fact that they received texts from who they thought was their sister (or niece) and it was you pretending to be the victim.

• [69] The victim leaves young children who have been taken under the wing and guidance of one of the victim’s sisters. She is now the children’s guardian and we heard from her today. The children will not know their mother and the family is concerned that they will forget their mother given their very young age.

Remorse

• [70] Mr Ngatai, Mr Keegan today spoke of your remorse. It is also referred to in the pre-sentence report and states that you take full responsibility for the offending. You chose not to provide an explanation because “doing so would be an injustice to [the] victim and her family”. It said that you are willing to address your offending.

• [71] Mr Keegan today noted you took full responsibility for the offending, offered no excuses and accepted totally your responsibility. The s 27 report supports the fact

that you have faced up to your actions and it says that you and your whānau have expressed remorse in different ways.

• [72] While I acknowledge the candid expression of acceptance today on your behalf by Mr Keegan today, I do not consider that the remorse is apparent in any material way. I consider any discount for that remorse is paired with the guilty plea discount which as I indicated in my sentence indication is 12 months.

• [73] As I noted in my sentence indication, while I provided that discount as one of the factors I took into account, guilty pleas do not usually apply a discount to indeterminate sentences. I outlined in my sentencing indication the reasons for that taken from the decision in Malik v R:³⁰

[35] This discussion points to two reasons why the guilty plea discount of 25 per cent is not directly applicable to minimum periods fixed under s 104³¹ of the Sentencing Act. First, counsel’s argument is not comparing like with like. The Hessell (SC) discount applies to a determinate sentence, which fixes the maximum term that the offender may serve and does so by reference to all relevant sentencing considerations, including credit for a guilty plea and remorse. In the ordinary way, he or she will be eligible for parole after serving one third of that sentence. By contrast, a minimum period increases the period the offender must serve before becoming eligible for parole and the statutory criteria in s 103(2) are narrower. They do not include, notably, the offender’s need for rehabilitation and reintegration.

• [74] I also note that the recent decision in Moses v R³² updated sentencing methodology to a two-step process. The Crown made a submission and I accept it that the matters dealt with in Moses v R do not materially affect the approach to sentencing in this case.

• [75] I note that while your guilty plea was not entered at the earliest stage and as the Crown noted it did not reduce culpability, nevertheless I took it into consideration in determining the length of the minimum period of imprisonment in my sentence indication.

³⁰ Malik v R [2015] NZCA 597.

³¹ Although this paragraph refers to s 104, this logic extends to MPIs set under both s 103 and 104:

Malik v R, above n 30, at [36].
³² Moses v R [2020] NZCA 296.

Prospects of rehabilitation

• [76] A strong prospect for rehabilitation comes through from the reports. I have already noted your youth. The pre-sentence report has assessed you at low risk of harm from drug use although there is a risk of harm, which could increase, once you are released. It notes that you may benefit from targeted interventions during your prison sentence, either through the drug treatment and rehabilitation programmes or through the Te Tirohanga Programme, set in a kaupapa Māori environment. I recognised that in my discount in my sentence indication when I reached a minimum period of imprisonment that took into account your youth and rehabilitation prospects.

• [77] The s 27 report also referred to rehabilitation. To your credit, it noted you have shown an interest in further education programmes. It describes you as intelligent, with an ability to change and reform. You have shown self-awareness about prison and you fear being “institutionalised and angry”. You recognise the world has changed and you are committed to making the most of your time in prison preparing to be “ready to get back to the world”. Importantly, you have the benefit of a close-knit family that has and will continue to support you.

Section 27 report

• [78] The s 27 report also details factors which may well have contributed to where you are today. You experienced abuse as a child, exposure to family violence and early use of drugs. This was from your father’s side of the family. You also witnessed a family member’s suicide. The abuse was committed by people whom you should have been able to trust. You spoke of how this continues to affect your mental health and at times you felt suicidal. This abuse led to what your lawyer described as a profound sense of whakamā or shame so you did not disclose this to many people. Members of your whānau only found out of this during the s 27 report interview. That caused them grief as they had not known earlier.

• [79] According to the pre-sentence report, this abuse led to a deep anger, which has been linked to your violence. Your father had also experienced abuse in foster care when he was placed in a boys’ home at the age of 12. Your father, you have said, was in and out of prison all your life.
• [80] You served four years imprisonment for the stage one offence. While in prison, you had the chance to “detox and rehab” as noted in the s 27 report. Your children visited you weekly. You told the report writer that your children were “doing exactly what [you] had done as a child, that is, visiting their father in prison”. The effects of the cycle of intergenerational trauma and imprisonment appear not to be lost on you.

• [81] You recognise the cycle. Your children visited you in prison when you served your sentence for your first strike offence, just like you had visited your father in prison. I understand that you no longer have contact with your children but you continue to write to them and hope to mend that relationship one day. This motivation to rebuild and reconnect are important factors for your wellbeing and also for your prospects of rehabilitation.

• [82] Through your schooling years, you were described as intelligent and had a positive experience at Ōpunake High School, including winning a creative writing competition. You were, however, involved in fighting and disobedience which culminated in your expulsion and a downward cycle.

• [83] The s 27 report notes a history of impulsive behaviour throughout your school years and that is shown in your offending. You told the report writer your actions were “impulsive” and led to “violence” and that you believe you would not have killed your partner had you not been under the influence of methamphetamine. Your actions after the offending were also considered impulsive. You did not think things through, you told the report writer “I just do it and have to deal with the consequences”.

• [84] The s 27 report also touches on your whakapapa. You are Ngāruahine and Te Ati Haunui-a-Pāpārangi. You say throughout your primary school education, you felt embarrassed and ashamed to be Māori. But after you had spent time at the Māori Focus Unit at Whanganui Prison you learnt and understood your whakapapa. You told the report writer you were “not a lost M[ā]ori boy now” but you were “quite awake”.

• [85] After your release, your grandfather, a kaumātua at the Kaiwhaiki Marae, took you out to walk on the beach to teach you the names of reefs and waka. Your

whakapapa to a rangatira in Taranaki and he told you about the loss of your ancestral lands.

• [86] Your social and cultural background is relevant in sentencing. The report sets out that background as well as the systematic deprivation suffered by your whānau which in some way forms the background to this offending.³³ While it cannot be simply assumed that systematic deprivation exists, the evidence of its presence need not be elaborate and is reasonably self-evident here.³⁴ Whata J when discussing systemic deprivation in Solicitor-General v Heta pointed to, among other things, intergenerational social and cultural dislocation of the whānau, poverty, alcohol and drug abuse by whānau members and exposure to that from an early age, as well as whānau unemployment, educational underachievement and violence.³⁵

• [87] I also note that a person’s cultural esteem is affected by wider society’s perception of that culture’s worth.³⁶ You were made to feel ashamed of your identity during your formative years at school. The Courts have become increasingly familiar with the impact of colonisation and its effect on offenders. It has been described now as a matter of institutional knowledge.³⁷

• [88] Your counsel submitted that your wider family background, in particular the exposure to violence and abuse, should attract a downward adjustment from the minimum period of imprisonment in the sentence indication.

• [89] Mr Keegan pointed to Solicitor-General v Heta³⁸ where it was held that the systematic deprivation similar to that which was imposed on your whānau may have contributed to the offending. Mr Keegan submitted that discounts for s 27 factors could range up to 30 per cent and in R v Rakuraku,³⁹ a 12-month discount was given on a sentence of murder for s 27 factors.

³³ Solicitor-General v Heta [2018] NZHC 2453 at [41].

³⁴ At [49].

³⁵ At [50].

36. Moana Jackson He Whaipaanga Hou: The Maori and the Criminal Justice System: A New Perspective (Department of Justice, February 1987) at 40.
37. Benson v New Zealand Police [2020] NZHC 1946 at [23]; citing He Whaipaanga Hou: The Maori and the Criminal Justice System: A New Perspective, above n 36.

³⁸ Solicitor-General v Heta, above n 33.

³⁹ R v Rakuraku [2014] NZHC 3270.

• [90] The Crown commented that while it may accept that there was a causal link to the offending through the deprivation, violence and drug use in childhood it pointed out that this was through your father’s family. On the other side your mother and her family have provided a stable environment. In addition, you were academically bright and had opportunities.

• [91] The Crown submitted that you have now offended seriously three times. As I have pointed out it was only your age at the time of that first offending that saved you from now being sentenced as a stage three offender. I referred to those factors having been taken into account in my sentence indication of a minimum period of imprisonment of 16 years.

• [92] I also took into account your youth and the information on your rehabilitation prospects which has been confirmed in the reports but I do not consider warrants a further discount. In addition I took into account the guilty plea coupled with your remorse. The further information before me does not lead me to increase those discounts. While you say you are remorseful there is no outward show of this.

• [93] However I have considered the further information and in particular the issues set out in the s 27 report. In my view the added information on your family as well as mental health issues and the cultural factors should attract a further adjustment of the MPI. These factors are to a large extent interconnected and I intend to recognise them with a 12 month discount to the minimum period of imprisonment.

• [94] I also note that I have referred to the aggravating factors of the previous serious offending and the impact on the victims in my sentence indication so have taken those into account.

• [95] Standing back and looking at the offending as a whole the key aggravating factor here is the nature of the murder together with the post-murder conduct. The Crown’s list of aggravating factors as I have indicated is comprehensive.

• [96] I have gone through the various factors but what ultimately matters at the end is the final sentence.
• [97] The Court, in Moses v R, reiterated that the central question in a sentencing is whether the sentence is just in all the circumstances. It said:

[49] ... guideline judgments such as this one promote transparency of analysis and principled consistency of outcome, furthering objectives of the Sentencing Act. We repeat however that the ultimate question is not whether an applicable guideline judgment is followed but whether the sentence is a just one in all the circumstances. When answering it the sentencer should stand back and consider the circumstances of offence and the offender against the applicable sentencing purposes, principles and factors.

• [98] Balancing those and taking into account the uplifts and discounts I have already referred to in my sentencing indication I come to the view that the MPI should still lie at the higher end of the 10 to 17 year range.

• [99] Such a sentence is necessary in particular to hold you accountable for the harm to not only the victim but the whānau, the community, and to denounce the offending and deter others and to protect the community. I note particularly Ms Wilkinson- Smith’s comments, for the Crown, that domestic violence particularly strangulation and battering by young men of their partners has become widespread in this community. That requires particular recognition and denunciation, community protection as well as deterrence.

• [100] Nothing will compensate for the loss of a loved daughter, niece and aunt and certainly nothing will ever compensate the children from the loss of their mother. I conclude that by recognising the mitigating factors including the cultural report factors and determine that a minimum period of imprisonment of 15 years is appropriate in this case.

Result

• [101] Mr Ngatai, please stand.

• [102] On the charge of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 15 years.
• [103] On the charge of unlawfully taking the victim’s vehicle I sentence you to 12 months’ imprisonment and on each of the two representative charges of theft and unlawfully using a document I sentence you to three years’ imprisonment served concurrently.

• [104] All the sentences are concurrent.

Grice J

Solicitors:

Crown Law Office, Wellington