[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 penalty”: at [7]. The reference was obviously to this Court’s judgment in R v Taueki [2005] 3 NZLR 372. From a starting point of 18 months imprisonment, the Judge gave Mr Ngawati credit for his guilty plea, his remorse and the fact that he was a first offender and was “otherwise a fully contributing member of society”: at [10]. A decrease of six months to reflect all these things resulted in the sentence under appeal.
[8] The nub of Ms Stevens’ submissions was that 12 months was just too long and tough a sentence for this offending by this offender. Elaborating, Ms Stevens made three points:

(a) The violence, although serious, is at the lower end. In terms of s 8(a) Sentencing Act 2002, the culpability is less than in many cases of serious violence;

(b) Mr Ngawati is not a recidivist offender in terms of violence. He has an excellent work record, offered significant and immediate compensation and could repay the community in a valuable way with his skills and work ethic; and

(c) Twelve months imprisonment is not “the least restrictive outcome that is appropriate in the circumstances” in terms of s 8(g) Sentencing Act. Sentencing principles and purposes could have been better met by a shorter term of imprisonment and an order of reparation.

[9] We accept the second of Ms Stevens’ points. We accept also that Mr Ngawati offered reparation. The pre-sentence report advised the Judge that Mr Ngawati:

[I]s also willing and able to make monetary reparation to the victim by paying a lump sum of $500 and any balance at $200 per fortnight.

We accept from Ms Stevens that Mr Ngawati appeared for sentence with the $500 lump sum payment. We think it unfortunate that the Judge did not order reparation, but that is now an opportunity missed.

[10] We are not persuaded by Ms Stevens’ other points. They do not properly reflect the force with which Mr Ngawati must have punched his victim to fracture the victim’s jaw on both sides, and seemingly in several places (the insertion of five metal plates required to repair the damage).
[11] We regard the Judge’s 18 month sentencing start point as within the one to two year sentencing starting point range available on an adjusted Taueki basis. The 33 per cent discount the Judge allowed could not be, and was not, challenged by Ms Stevens.
[12] Between them, counsel referred us to six sentencing decisions for injuring with intent to injure: R v Norman [2007] NZCA 351; R v Goldstone [2007] NZCA 321; R v Highley CA164/06 13 September 2006; R v Farquhar CA4/06 20 March 2006; R v Franklin CA145/05 and CA147/05 26 May 2005; and R v Longi (aka Logovae) CA127/01 20 June 2001. To those we add R v Solomon CA422/97 24 February 1998. In those cases the sentences imposed ranged from community work plus supervision (in Norman) to two and a half years imprisonment (in Highley), in both those cases imposed after guilty verdicts at trial.
[13] Judicial observations about the difficulties of comparing the facts of one case with another(s) are legion. Having said that, the closest factual comparison is probably with Farquhar in which this Court dismissed an appeal against a sentence of 18 months imprisonment. That prompts us to comment that, even if reparation of $2,500 had been ordered, the degree of violence would still have warranted a sentence of 12 months imprisonment.
[14] We are not persuaded that the 12 month sentence imposed was manifestly excessive.
[15] The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2007/416.html