THE QUEEN v JAMES PHILLIP NGATAKI [2000] NZCA 365 (5 December 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 300/00

THE QUEEN

V

JAMES PHILLIP NGATAKI

Hearing:	4 December 2000
Coram:	Keith J, Robertson J, Goddard J
Appearances:	F D Steedman for the Appellant J M Jelas for the Crown
Judgment:	5 December 2000

judgment of the court DELIVERED BY GODDARD J

Introduction

[1] The appellant was sentenced on 15 August 2000 to a term of 11 years' imprisonment on a charge of aggravated robbery pursuant to ss235(1)(a) and 17C Crimes Act 1961.The offending involved a brutal episode of violence inflicted on a 72 year old victim, for whom there have been severe consequences.The appellant, who pleaded guilty immediately upon committal, was just 20 years old at the time and had no previous convictions.He had two co-offenders who were not quite 17 years old at the time.The three of them had initially conceived a plan to burgle what they hoped would be an empty house but their plan subsequently escalated into the terrible crime ultimately committed.The two co-offenders have recently been convicted by a jury and the appellant gave evidence for the Crown at their trial.He now appeals against the sentence of 11 years' imprisonment imposed, on the grounds that it is manifestly excessive in all the circumstances.

The Facts

[2] The appellant and his two co-offenders met with each other at the home of one of them in Levin.One of the two co-offenders indicated that he knew of an address in Ohau which he thought would be vacant because the owner was overseas.This offender was familiar with the address and knew the victim because he had been a guest at the address the previous Christmas when the victim was also present.He indicated that there would be alcohol, which could be readily stolen from the address and drew a diagram of the property.A plan was formulated to burgle the house and later that day the three offenders were dropped off in the vicinity of the property.As they walked passed the property they noticed that people were there and repaired to some other venue for a time.Later they returned to the address.In the interim they had decided that if somebody was still at the house when they knocked on the door, they would ask for petrol on the pretext that their motor vehicle had broken down.On the way back to the address the appellant also stated that he would kill any occupant in the house.At the property the appellant and one co-offender went to the front door of the house and the third co-offender, who was known to the victim, stayed out of sight.

[3] The appellant and his co-offender knocked on the door which was answered by the victim.The victim agreed to give them a can of petrol from the garage and directed them to it.After retrieving the can of petrol the appellant returned to where the victim was standing in the garden and punched him with sufficient violence to knock him to the ground.He then dragged the victim into the house where he struck his head against the dining room table and then commenced a brutal assault.Two liquor bottles were smashed over the victim's head followed by a dining room chair.Whilst this was occurring the appellant's two co-offenders were removing items from inside the house and one of them disconnected the telephone.The victim lapsed into unconsciousness and the three then attempted to leave the property in the victim's motor vehicle but it stalled and was unable to be restarted.They then attempted to steal another motor vehicle.One of the co-offenders discovered that the victim was regaining consciousness and hit him over the head with his own walking stick until he again lost consciousness.After they left the victim was unable to summons help due to the telephone having been disconnected.He was not found until the next morning.

The Victim

[4] The victim suffered six severe lacerations to his scalp and face, these injuries being described by the surgical registrar at Palmerston North Hospital as "horrendous".They required suturing under general anaesthetic.In addition he suffered severe swelling and bruising to his eyes and nose.The blows to his head caused an intracerebral haemorrhage to the left side of the brain.He required hospitalisation for a considerable period of time and is still recovering.He is expecting ongoing problems, particularly in relation to his hearing and ability to breathe through his nose and he continues to require physiotherapy.

[5] Despite the appallingly brutal nature of the attack on the victim and the severity of his injuries, he is described by all the health professionals concerned with him as having made a "remarkable" recovery.Although, that recovery process is not complete the victim has clearly taken such a positive approach to matters that there is hope that he will continue to improve and resume a normal life.The victim impact statement provided to the Court reflects the very special qualities this man possesses and that his recovery, to the extent to which it has currently progressed, is a tribute to his personal strengths.

The Sentencing Judgment

[6] Referring to the following passage in R v Mako [2000] 2 NZLR 170 at 183 the Judge adopted an initial starting point of seven years' imprisonment:

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.

[7] Before dealing with the further increase in starting point "to around 10 years" for the home invasion component, the Judge turned to consider the aggravating factors in the case.He regarded the violence and injuries meted out to the victim as the principle aggravating factor and, having regard to that, took into account the following:the unnecessary premeditated and extreme nature of the violence, the outcome on the victim and the appellant's prior statement of willingness to kill any occupant of the house.The Judge accepted that the appellant's statement was probably no more than bravado but found it nevertheless reflected his state of mind at the time.Taking those aggravating factors into account, the Judge found an additional term of three years to be appropriate.He then returned to consider the home invasion component, referring to the decision in R v Palmer [2000] 1 NZLR 546 and determined that an additional period of three years' imprisonment was required to achieve a starting point of 13 years' imprisonment.The Judge then took into account the appellant's personal circumstances and the other mitigating factors saying:

... I then must take into account those circumstance that are personal to you. In so doing, I do consider your age.It is a sad matter, that at the age of 20 you are now going to be imprisoned for a term that will, essentially, deprive you of the better years of your life.

You have no previous convictions.You have demonstrated to others that you do have good attributes.You are an intelligent person.I note that you are in a relationship, I note that you have a child with another child on the way.

I accept what Mr Harvey has advanced on your behalf this morning about your co-operation with the Police.You volunteered after your first statement, knowing what your co-accused had said, to make a second statement to the Police.I well accept what you say, through your counsel, as to the reasons as to the delay in your plea of guilty and I have already indicated to you that I propose to give you the fullest credit I can for the fact that you have entered a plea of guilty.

I note further this morning a letter signed by you where you have indicated you will assist further when the cases against your co-accused come to Court and that is something that I do intend to give you a credit for as well.

If I take all those matters into consideration, I allow you credit of two years.That term, deducted from 13 leaves a period of 11 years...

...

... you will be imprisoned for a term of eleven years.

Submissions in Support of theAppeal

[8] Mr Steedman made two essential submissions:first, that the discount of two years was too low and secondly that the starting point of 13 years was "a little too high".

[9] It is convenient to deal with the second submission first.It is possible that if the Judge had adopted a starting point of 10 years for aggravated robbery in a private dwelling house as indicated in Mako and then added for the aggravating factors, a starting point of 12 years might have appropriately been reached.That is not to say, however, that offending such as this could not attract a starting point of 13 years' imprisonment, given the extreme and gratuitous nature of the violence inflicted.

[10] In respect of Mr Steedman's first submission, we are satisfied that this does have substance.The Judge gave a global discount of two years for the four mitigating factors he identified:the appellant's age; his lack of previous convictions and otherwise good record; his early co-operation with the Police and his entry of a guilty plea at an appropriate stage; and his indication that he would give evidence for the Crown at the trial of his co-offenders.

[11] The Judge did not single out or distinguish any of those factors as more or less important in the discounting exercise.It is therefore impossible to discern what, for instance, he considered the appropriate discount for the guilty plea to be.

Discussion

[12] Dealing with the first two of the mitigating factors identified it is well established that youthfulness, particularly in a first offender, requires the Court to have regard to rehabilitation:see for example R v Accused (CA 26588) [1989] 1 NZLR 643; R v Mahoni (1998) 15 CRNZ 428, 436-437 (CA). That is for proper public interest reasons and not simply for the individual benefit of the offender concerned.In the appellant's case the provisions of s7 Criminal Justice Act 1985 must also have application, as his antecedents suggest this offending was quite out of character.

[13] Whatever quantum of discount the Judge had in mind for the guilty plea is inadequate on any computation.Whilst it is correct that the appellant did not plead guilty immediately upon arrest, we accept that he did co-operate with the Police thereafter.We also accept, on the basis of the circumstances as outlined by

Mr Steedman, that his entry of a guilty plea upon committal was in fact appropriately early.The appellant did not require the victim to give evidence at depositions and the requirement that the victim attend and be cross-examined was that of the appellant's two co-offenders.Therefore any additional ordeal suffered by the victim in having to attend at depositions and at trial to give evidence and be cross-examined was not occasioned by the appellant.In terms of further co-operation, the appellant has, since sentencing, fulfilled his promised willingness to give evidence for the Crown at the trial of his co-offenders.They were both convicted and now await sentence.

[14] The quantum of discount given for guilty pleas can vary markedly and the extent of the reduction will depend upon the particular circumstances.The most common percentage discount given is between 20-25%, but the percentage given must necessarily also reflect the severity of the crime and length of total sentence.An early guilty plea can, in itself, be construed as an expression of genuine contrition.In addition, co-operation on the part of an offender can also be construed as contrition.

[15] There is an abundance of authority to indicate that a discount of two years for a guilty plea and co-operation in a sentence of this length is inadequate, before the other mitigating factors are taken into account:see for example, R v Flavell and Alexander (CA 16/99 and CA 6/99, 10 May 1999); R v Leek (CA 173/99, 12 July 1999); R v Nuku (CA 296/98, 1 December 1998).

[16] We are of the opinion that the discount of two years for the appellant's appropriately early guilty plea and his co-operation merits a discount of more than two years.When those two factors are coupled with his youthfulness and otherwise good record, the discount given can be seen as manifestly inadequate. Further the co-operation given subsequently by the appellant at the trial of his co-offenders must now also be recognised by the Court.

Conclusion

[17] We regard a starting point of 12 years' imprisonment as appropriately condign to reflect the gravity of the offending, the home invasion component and all the other aggravating factors.We wish to make it clear however that in adopting this starting point, rather than a starting point of 13 years' imprisonment, we are not minimising the extreme or gratuitous nature of the violence inflicted on the victim.He is to be commended for the courage and fortitude he has shown throughout his ordeal.Rather, the adoption of a 12 year starting point is to ensure that the possibility of any element of `double counting' is negated.From that starting point, we are satisfied that a discount of four years should be allowed to take account of the appellant's guilty plea, his co-operation, his youthfulness and his otherwise good record. This will serve to sufficiently recognise those mitigating factors and also bring the discount more consistently into line with discounts given in other cases of serious offending which involve early acknowledgement of guilt.

Judgment

[18] The appeal is allowed.The sentence of 11 years' imprisonment is quashed and in lieu a sentence of eight years' imprisonment imposed.

Solicitors:

Crown Law Office, Wellington, for the Crown

Fergus Steedman, Palmerston North, for the Appellant