R v Ngamotu [2018] NZHC 893 (11 April 2018)

Last Updated: 1 May 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-063-001604 [2018] NZHC 893

THE QUEEN

v

ADRIAN NGAMOTU

Hearing:	11 April 2018
Appearances:	C Macklin for the Crown A Schulze for the Defendant
Sentencing:	11 April 2018

SENTENCING NOTES OF HINTON J

Counsel/Solicitors: Gordon Pilditch, Rotorua Lance Lawson, Rotorua

R v ADRIAN NGAMOTU [2018] NZHC 893 [11 April 2018]

[1] Mr Ngamotu, you appear for sentence after having accepted a sentence indication provided by Davison J on 19 February 2018.¹ You have pleaded guilty to one charge of manslaughter and you have been convicted on that charge.

Background

[2] Your offending has a tragic background. It took place in an area of communal family land, situated between Acacia Bay Road and Lake Taupo. You had recently begun residing on the land in an old caravan, which the summary of facts records was owned by the deceased, your sister.

[3] On the morning of 8 May 2017, you and the deceased had an argument over the phone, about ownership of the caravan. You believed you were the rightful owner of it. The deceased disagreed. Upon learning of your plan to swap the caravan for another situated on the land, the deceased and her nephew set about immobilising the caravan. They propped it up onto bricks to remove its wheels.

[4] Upon discovering what the pair were doing, you became very upset and angry. You confronted them about it. You then got into your van and reversed it at speed towards the caravan. You say you intended only to hit the caravan’s awning. However, the end result of your actions went further than that, with tragic consequences. You initially did strike the caravan’s awning at the front-left corner, before hitting the front-left corner of the caravan itself, in the area adjacent to the drawbar at the front of the caravan. In consequence, the caravan was knocked off the bricks and it spun around in a clockwise direction, striking the deceased in the process. The deceased was knocked to the ground, and as the caravan rotated she passed under the drawbar. She was injured and lying on the ground.

[5] Following the initial impact, you continued to reverse your van in a semi-circular direction, with sufficient momentum to take the caravan with you. Once the caravan had spun around sufficiently, there was nothing left in your van’s way. You ran over the deceased, still travelling in reverse. You continued to reverse until

¹ R v Ngamotu [2018] NZHC 205.

coming to a stop on a soft dirt bank about 20 metres away. You unsuccessfully tried to drive the van off the bank, before getting out of it.

[6] You were confronted by your nephew. You angrily tried to shift blame, insisting that it was not your fault. Your sister was treated at the scene and ultimately flown to hospital. She tragically passed away during surgery. The injuries she suffered were numerous, including abrasions to her head, face and abdomen; multiple rib fractures; and bilateral pelvic fractures.

Purposes and principles

[7] In sentencing you, Mr Ngamotu, I must have regard to the purposes and principles of sentencing, which are set out in the Sentencing Act 2002.² I agree with the identification of these factors by Davison J at your sentence indication. In a nutshell, denunciation and deterrence are among the most prominent sentencing purposes applicable. Whatever sentence I impose on you should promote in you a sense of responsibility for and acknowledgement of the harm you have caused not only to your sister, but to your wider whānau. I must also take into account the gravity of your offending, your overall culpability (that is, blameworthiness), and generally, the desirability for consistency in sentencing levels. You should be sentenced in a way that is relative to other similar instances of offending.

Personal circumstances

[8] I now refer to the pre-sentence report, which was not before Davison J at the time of his sentence indication. It was prepared after you pleaded guilty.

[9] You are 55 years old. You and your 14 siblings were raised by your mother and father in Taupo. The psychiatrist, Dr Malone, records that your childhood was difficult due to significant poverty and other factors that are often seen in the courts. You maintain contact with one older brother, with a sister, clearly, and one younger brother. Perhaps there are others, but they are the ones I am aware of. You have one biological child, one whāngai child, and three grandchildren. You have expressed

² Sections 7-8.

great sadness at being unable to see your grandchildren, and at the possibility that your youngest daughter will be 21 years old by the time you are released from prison.

[10] You have been offence-free since 1987. You credit that to your ex-wife of 22 years.

[11] Prior to your offending, you were in receipt of a sickness benefit as you had been suffering from strokes. You have had three strokes, one of which you advised was suffered shortly after your remand in custody. Before all this, you worked as a truck driver.

[12] The report-writer has assessed you as having a low likelihood of reoffending, given you had gone about 30 years without committing an offence. Your risk of causing harm ˗ that is causing harm without necessarily offending ˗ however, is assessed as being very high as the death of your sister was caused by your own actions.

[13] Your health issues are currently (hopefully) being managed in prison. However, given the severity of your offending, the report-writer notes that you are likely to be assessed by a departmental psychologist for further intervention if necessary. I do strongly recommend that, based on what I have seen of how you are in Court today, Mr Ngamotu.

Victim Impact Statements

[14] Davison J had before him, and referred to, victim impact statements from Mr Martyn and Mr Gillard. I refer to these first.

[15] Mr Martyn read his statement out to the Court. Mr Martyn, who is always known as Chopper Martyn, was the deceased’s partner. He says he was helpless when he arrived at the scene of the incident. He feels as though his life has been well and truly destroyed. He is no longer able to sleep at night and is regretful that the deceased’s two children will grow up without their mother.

[16] Mr Logan Gillard’s statement was read out by Mr Macklin. Logan Gillard, the deceased’s nephew, describes feelings of trauma and anger. Although he could not
have done anything more for the deceased, he is angry that he was not able to do something to prevent her from being hurt. The deceased was a mother-like figure for him. He now feels entirely lost.

[17] I have before me two additional victim impact statements. Ms Ziena Gillard, the deceased’s cousin, who read out her statement, describes her memories of the deceased. She says the deceased was positive and full of life. The impact her death has had on Ms Gillard has been life changing. She is angry. She questions family love. She has looked at a family that has been torn apart by a senseless unloving act. Ms Gillard describes a close connection between her son, Logan, and the deceased. She says her son’s spirit was broken that day.

[18] Last, but by no means least, is the victim impact statement of Keanu Ngamotu, the deceased’s son. Keanu Ngamotu understandably is not in Court today. His statement was read at his request by Mr Macklin. Mr Ngamotu has written a very detailed and very moving statement about what happened on 6 May 2017; how traumatic it was for the whānau and the terrible effect his mother’s death has had. He says:

I am grateful that my aunty took my sister and I in like her own and kept the memories of our mum alive, laugh and cry about her as well. Grateful for holding me and my sister up through an emotional rollercoaster and nurturing us like her own. Without that, I definitely wouldn’t know where I would have been. ... This has been one of the hardest things I have ever experienced in my life EVER.

And to his mum he says, “You’re concreted in my heart forever.”

[19] My brief review of the victim impact statements is just that. It is very superficial compared to the actual statements themselves. There is no doubt, within your whole whānau and wider, a profoundly-sensed feeling of loss and damage. These sorts of cases are the worst. They divide families. They are a tragedy for everyone. I acknowledge both those here and those not here.

Sentencing

Starting point

[20] A three-stage approach is taken to sentencing. First, the appropriate starting point is set for the charges. Secondly, allowance is made for personal aggravating and personal mitigating factors, and finally there is a discount for your guilty plea.

[21] I adopt the starting point of six years’ imprisonment, which was set out in the sentence indication given by Davison J. I explain that as follows.

[22] Manslaughter carries a maximum sentence of life imprisonment. There is no tariff case for manslaughter. It is difficult to set out sentencing guidelines for manslaughter given the wide spectrum of circumstances in which the offence can occur.³ I agree with Davison J that the case of R v Taueki,⁴ which is often relied on to assess the starting point for offending involving grievous bodily harm, is not applicable here. Manslaughter arising from dangerous driving is a distinct offence reflecting a quite different culpability.

[23] Although the fact of dangerous driving is inherent in the charge of manslaughter, your offending has factors which aggravate it. You acted entirely recklessly. You reversed your van with some force into the caravan with full awareness that the deceased and her nephew were crouched beside it in a vulnerable position. They could not see what you were doing and were unable to take action to protect themselves.

[24] While I accept, as did Davison J, you did not intend to hit the deceased, your actions were reckless and extremely dangerous. You exercised no self-control in your moment of anger. Given the force with which you must have hit the awning and then the caravan, the consequences for anyone who happened to be in the van’s way were going to be severe. You nevertheless proceeded.

³ R v Edwards [2005] NZCA 70; [2005] 2 NZLR 709 (CA) at [14].

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[25] Your persistence in continuing to rev the van up against the caravan, and not stopping until some 20 metres beyond, is indicative of the force and extent of your driving. Your actions appear to have been symptomatic of a “blind rage”, conducted with total disregard for who or what was in your way.

[26] There is nothing to suggest that, at the time, you had any concern for the welfare of the deceased. Your immediate reaction was one of anger, attempting to shift the blame for what you had done. You took no steps to call an ambulance or to provide assistance to the deceased.

[27] There are no factors that mitigate your offending, as such. It was argued on your behalf before Davison J that there may have been a causal link between your mild neurocognitive disorder, that is your reduced mental state, and your offending. As the Court of Appeal observed in Shailer v R, in those sorts of circumstances, the actual offending level may be reduced.⁵ However, a mental disorder is not enough. There must be evidence of a causative link between the mental disorder and an offender’s culpability or blameworthiness.⁶

[28] While I suspect your reduced neurological state may have actually had something to do with your actions, I do not have the evidence to reduce the starting point on that account. I come back to this though in connection with your personal circumstances, which I discussed with counsel.

[29] I next refer to comparable cases, because as I mentioned earlier, consistency of sentencing is important. There are three cases involving manslaughter as a result of dangerous driving that support a starting point of six years’ imprisonment.

[30] In R v Green,⁷ Whata J adopted a starting point of six years and six months’ imprisonment in respect of an offender who drove at speed in the direction of the deceased, who had taunted him by kicking out at his car. In doing so, the offender struck the deceased with his car, killing him instantly. The Judge took into account

⁵ Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].

6. Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50]; citing R v Milford [2008] NZCA 148 at [33]; R v Whiu [2007] NZCA 591 at [30]; and R v Bridges [2003] 1 NZLR 636 (CA) at [40].

⁷ R v Green [2016] NZHC 513.

that the offender had consumed alcohol, that he drove recklessly at an excessive speed, and that he fled the scene afterwards.

[31] In R v Haufano, Wylie J adopted a starting point of six years’ imprisonment in respect of an offender who chased down a pedestrian who had assaulted him. Although not at speed, he ran over the deceased, killing him. The victim was described as vulnerable. Relevantly, and like Green, the offender had consumed alcohol and he fled the scene following the incident.⁸

[32] In R v Tauira,⁹ Allan J adopted a starting point of six years and six months’ imprisonment in respect of an offender who drove his car into a group of people engaged in a fight. The offender, who had consumed alcohol, claimed his primary intention was simply to scare the crowd into dispersing. However, his guilty plea to manslaughter reflected that he was unable to control the car properly while under the influence of alcohol.

[33] In all of those cases, alcohol was involved, which was an aggravating factor not present here. However, I do not consider it makes any material difference. Real similarities can be drawn between your case and the case of Tauira, in that the motivation appears not to have been to hit anyone, but rather to intimidate or frighten. I consider the three cases cited are generally useful in discerning the culpability or blameworthiness of your offending.

[34] For these reasons, as I have said, I agree with the starting point of six years’ imprisonment adopted by Davison J.

Adjustments to the starting point

[35] I now turn to consider the factors relevant to you personally. So I am moving away from the offending as such.

⁸ R v Haufono [2014] NZHC 1201.

⁹ R v Tauira HC Auckland CRI-2006-092-11737, 19 June 2009.

[36] In relation to any aggravating factors, as both counsel accept, I do not consider that your previous convictions are relevant to your present offending. They do not justify an uplift from the starting point. In fact, I have to say I am impressed with your clean record from 1987 until the terrible events of 8 May 2017. I also record that those old convictions were all either when you were very young, or of a relatively minor, non-violent nature. Because you had been conviction-free for 30 years and because of the effort that must have involved for you, I am going to allow a discount for previous good character of three months.

[37] Davison J did not foreclose the possibility that you might be afforded a discount for your ill health and cognitive impairment. Health problems are, of course, relevant to sentencing. The appropriate end sentence should reflect both an offender’s offending and their personal circumstances. A failure to take into account an offender’s health concerns, and how those concerns might be managed in prison, can lead to a sentence being imposed which is disproportionately severe in the circumstances.¹⁰ Sentences must always be tailored to the individual offender by reference to the appropriate guiding factors and principles.

[38] There is no clear evidence regarding your mental condition before the Court other than Dr Malone’s report. That report does comment on your medical condition, but does not comment upon its effect on your ability to cope with a sentence of imprisonment. While it is true that medical conditions may justify a reduction in sentence, the Court of Appeal, albeit back in 2007, emphasised that ill health should not become a licence to offend and avoid accountability.¹¹ One consideration relevant to this enquiry is whether the ill health is able to be managed sufficiently within prison to ensure that the sentence imposed is not disproportionately severe.¹²

[39] The pre-sentence report-writer has indicated that your health problems are being managed within prison. I have to say, Mr Ngamotu, based on the way in which you have been conducting yourself today, I have serious concerns as to whether that is so.

¹⁰ Sentencing Act 2002, s 8(h).

¹¹ R v Luce [2007] NZCA 476 at [22].

¹² R v Luce [2007] NZCA 476 at [23].

[40] Davison J indicated that a discount of no more than three months might be warranted for your condition, on the basis that there might be further evidence illustrating how your health problems might make an otherwise appropriate sentence disproportionately severe in your case. I have decided that there is enough evidence of health problems to justify a discount of four months. You were on a sickness benefit at the time of the offending. You have had three strokes, one just after going into prison on remand. You have what Dr Malone diagnosed as a mild neurocognitive disorder, which in his view may well be deteriorating materially. He points to your very impaired memory, significant weight loss and many other physical symptoms. He says you look much older than your years, are frail and move and speak slowly. I have also taken into account that this is your first time in prison and at the age of 55, with your mental and physical health, I accept it will be very difficult for you.

[41] Since the sentence indication, you have written a letter for the Court. In that letter, you say to the Court, your parents and your siblings that you are sorry. You plead for forgiveness from your sister and from your niece and nephew, whose mother you have taken away. You say you accept your sentence, whatever it might be. It is difficult, of course, to assess the genuineness of your remorse. A discount for remorse will be given only where there is hard evidence of genuine regret and remorse.¹³ In your pre-sentence report, it is noted that during an interview you initially tried to justify your actions, but over the duration of the interview, you expressed “tremendous remorse” for your actions. You said you did not mean to kill your sister and you had gone too far. You said you pleaded guilty because you did not want your family to go through it all again.

[42] I accept that what you have put in your letter is genuine. Taking this into account, I am willing to apply a remorse discount of five months to your sentence.

[43] The remorse discount, plus the other discounts, brings your sentence down from six years’ imprisonment to five years’ imprisonment. I also apply the 25 per cent discount for your guilty plea which, again I agree with Davison J, was made at the earliest reasonable opportunity, allowing for your counsel’s very appropriate decision

¹³ Senior v Police (2000) 18 CRNZ 340 (HC) at [21].

to obtain a psychiatric assessment of you. Your final sentence is therefore three years, nine months’ imprisonment.

Disqualification from driving

[44] I now turn to the disqualification from driving. Counsel are agreed that I should order that you be disqualified from holding or obtaining a driver licence.¹⁴ At issue is how long that period should be. Counsel for the Crown submits that up to seven years’ disqualification could be appropriate, and says that this period should commence from the date of release.

[45] Your counsel submits that either six years from the date of sentencing or three years from the date of release would be appropriate.

[46] I have considered numerous cases provided to me by counsel in which previous offenders have been disqualified from driving following convictions for manslaughter.¹⁵

[47] I do not consider that your offending indicates a particular propensity to engage in reckless driving. However, the sheer recklessness of your behaviour requires time off the road. And in ordering disqualification I am mindful that I should strive to be consistent with the periods reached in similar cases. I consider three years from the date of your release to be an appropriate period.

[48] Mr Ngamotu, please stand.

[49] On the charge of manslaughter, I sentence you to a term of imprisonment of three years, nine months. You are also disqualified from holding or obtaining a driver's licence for a period of three years from the date of your release from prison.

¹⁴ Pursuant to s 124 of the Sentencing Act 2002.

¹⁵ R v Green [2016] NZHC 513; R v Haufano [2014] NZHC 1201; R v Tauira HC Auckland CRI-2006-092-11737, 19 June 2009; R v Kala’uta [2016] NZHC 1526; R v Adlam [2015] NZHC 2192; R v Presland [2015] NZHC 1203; R v Pora [2015] NZHC 1104.

[50] Please stand down, Mr Ngamotu. Thank you to your sister for helping you.

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Hinton J

ADDENDUM

[1] During the initial stages of the sentencing hearing, Mr Ngamotu seemed to be vaguely focusing on what was happening. He was, for example, looking at the victims as they read out their victim impact statements and looking at the members of the family and others in the back of the Court.

[2] Not long after that, he became very distracted and looked quite vacant. He was splaying his fingers out and appeared to be counting them; looking down at the floor as if he was looking for something and then returning to his fingers; pointing around the courtroom, but not at anyone or anything.

[3] This reached the stage where I asked his counsel, Mr Schulze, to check whether he was all right. Mr Ngamotu looked quite vacant as his counsel spoke to him, and expressed what sounded more like grunting noises than words.

[4] In the early stages of my sentencing, Mr Ngamotu’s condition appeared to deteriorate further. He remained silent and seated, but he was making increasingly odd movements. He did not appear to be taking, or capable of taking, anything onboard.

[5] About two minutes into the sentencing, I paused and said to Mr Schulze that his client was just pointing around the room all of the time. I suggested maybe someone should sit closer to him but that I did not know what we could otherwise do to help. At this stage, a woman at the back of the Court put her hand up. I asked her whether she would like to sit with Mr Ngamotu while I was talking. She indicated that she would and said that he was her brother. I allowed her to sit with him in the dock. They clung onto each other. Sentencing resumed from there. He seemed more settled thereafter, although still did not look to be capable of understanding what was happening at all and was taking no, or virtually no, notice of the sentencing.
[6] The sister’s presence is the reason I say at [9] that Mr Ngamotu clearly maintains contact with a sister, of which I had not previously been advised. It is also the reason why I thank the sister at the end.

[7] Overall, Mr Ngamotu’s attendance in Court left me very concerned as to his mental state.

[8] I have made this record for the benefit of the prison authorities.