Ngaau v Police [2015] NZHC 2449 (7 October 2015)

Last Updated: 30 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000262

CRI-2015-404-000265 [2015] NZHC 2449

BETWEEN	GLENYS NGAAU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 October 2015
Appearances:	Michael Kidd for the Appellant Elizabeth Rutherford for the Respondent
Judgment:	7 October 2015

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 7 October 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

NGAAU v NEW ZEALAND POLICE [2015] NZHC 2449 [7 October 2015]

Introduction

[1] Ms Ngaau pleaded guilty in the District Court at Auckland to four charges of theft, three charges of breaching bail, one charge of possessing a pipe, one charge of possession of a class A controlled drug, one charge of breaching supervision and a charge of breaching release conditions. At sentencing her earlier sentence of one year’s supervision and 100 hours’ community work was also reviewed. She was sentenced to 10 months’ imprisonment.

[2] Ms Ngaau now appeals this sentence. Mr Kidd, for Ms Ngaau, submits the appellant ought to have received a greater credit for her unenviable family history and the abuse she suffered when she was younger.

Factual background

[3] Ms Ngaau was apprehended in relation to three minor thefts when she took goods from different shops. On each occasion the goods taken were worth less than

$100. She also breached her release conditions by not attending drug and alcohol counselling and later by failing to report to Probation. Additionally she was found in possession of a drug pipe and a small quantity of a class A controlled drug.

[4] Ms Ngaau has an extensive history of theft. She also has an extensive history of breaching community-based sentences. The pre-sentence report assesses her as being at a moderate risk of re-offending although her risk of harm is regarded as low. The author of the pre-sentence report noted that if the breach offending was taken into account her risk of re-offending would be assessed as high. Mr Kidd in helpful oral submissions has explained Ms Ngaau’s background and the difficulties which she has faced since around the age of 11.

District Court decision

[5] Judge Glubb, in a careful and comprehensive judgment, set out Ms Ngaau’s history, and traversed the oral submissions made by Mr Kidd in relation to her personal history and the steps which she has taken since her arrest. His Honour noted Ms Ngaau’s extensive criminal history and also the fact that she did not

consent to an electronically monitored sentence. However, as the Judge noted even if an electronically monitored sentence was imposed Ms Ngaau’s history of non- compliance was such that it would be setting Ms Ngaau up to fail.

[6] Given the nature of the offending and the background, the Judge approached the sentencing in a global fashion taking the possession of instruments and the breach of release conditions as the lead offence for setting a starting point. He set this at eight months’ imprisonment and applied an uplift of four months for the other offending and two months to account for Ms Ngaau’s previous criminal history. He then determined she was entitled to the full discount available of 25 per cent for the entry of early guilty pleas. This brought the final sentence to 10 months’ imprisonment.

Approach to appeal

[7] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[8] In any other case, the Court must dismiss the appeal.¹

[9] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.² Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to

_{sentence appeals.}³

¹ _{Criminal Procedure Act 2011, s 250(3).}

² _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

³ At [33], [35].

[10] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:⁴

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[11] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁵

Appellant’s submissions

[12] Mr Kidd seeks a more lenient sentence on the basis that the Judge erred in giving Ms Ngaau little credit for her steps towards rehabilitation and imposed a disproportionately large uplift for her previous convictions. He submits that Ms Ngaau has not come to the Court’s notice except for breaching bail and Court orders. He submits she appeared to be turning her life around before she started abusing methamphetamine.

[13] Mr Kidd also emphasises the very difficult background which Ms Ngaau has been subjected to and that these were a contributing factor to her offending and thus constitutes special circumstances.⁶ He is highly critical that the author of the pre-

_{sentence report failed to examine this issue.}

⁴ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].}

⁵ _{Ripia v R [2011] NZCA 101 at [15].}

⁶ R v Lawson [1982] 2 NZLR 212.

Analysis

[14] Mr Kidd does not dispute the starting point. He simply submits that the uplift for prior offending was too steep and that insufficient weight was given to Ms Ngaau’s personal circumstances.

[15] Leaving aside the complete lack of evidence to support the personal circumstances claimed⁷ I am satisfied that the sentence imposed was within the range available to the sentencing Judge. An uplift of two months for Ms Ngaau’s prior history equates to 17 per cent. This uplift is appropriate for the prior offending which has been reasonably continuous over the last 15 years. Further, given Ms Ngaau’s previous history there was only a limited basis on which to give a discount for personal circumstances. While I accept Ms Ngaau’s family background is an unhappy one, there comes a point when she must be held to account for her

own actions. That point, in my view, has been passed. In the circumstances where Ms Ngaau received a discount of more than 25 per cent for her guilty plea I do not consider that any further discount was necessary.

Result

_{[16] The appeal is dismissed.}

Moore J

Solicitors:

Dr M J Kidd, Auckland

_{Crown Solicitor, Auckland}

⁷ No affidavit was filed either in the District Court or in this Court supporting Mr Kidd’s submission. This makes it difficult for the requirements of s 24 of the Sentencing Act 2002 to be fulfilled.