In the Court Of Appeal of New Zealand
CA523/2009
[2010] NZCA 121

BETWEEN	REIHANA CLAUDE NGAMOTU
Appellant

AND	THE QUEEN
Respondent

Hearing:	15 March 2010

Court:	O'Regan, Rodney Hansen and Simon France JJ

Counsel:	A J S Snell for Appellant
T Epati for Respondent

Judgment:	1 April 2010 at 10.30 am

JUDGMENT OF THE COURT	

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Simon France J)

Introduction
[1]	Mr Ngamotu appeals a final sentence of five years, two months, two weeks’ imprisonment.   The sentence was imposed by Judge Cunningham on 31 July 2009 following a guilty plea to an indictment containing 20 counts of varying forms of assault.  The primary victim was his partner of 15 years, and the other victims were his three children, and a friend of his partner.  The offending dates back to November 1996.
[2]	The charges to which Mr Ngamotu pleaded are assault with a weapon (x 2), assault on a female (x 6), injuring with intent to injure (x 2), assault with intent to injure (x 4), threatening to kill (x 3), assault on a child (x 3), and cruelty to a child.
Facts
[3]	It is necessary to detail the conduct involved in all of the 20 charges, although they can be grouped in relation to each of the victims.
[4]	Concerning his partner, the first offence was in November 1996.  A verbal argument escalated into a physical confrontation.  Mr Ngamotu hit his partner in the mouth sufficiently hard to result in the loss of a tooth.  The victim impact statement makes it plain it was a matter that caused both considerable on‑going pain and considerable stress to the victim for some time.  Eventually a denture was made to replace the tooth.
[5]	In August 2003, Mr Ngamotu’s partner returned home, accompanied by a friend.  An argument ensued and Mr Ngamotu punched his partner four times in the face with a closed fist.  The friend was surprised that Mr Ngamotu would act in this way in front of her.  She sought to intervene and was herself punched.  The assault on her, as with the assault on Mr Ngamotu’s partner, occurred in front of the friend’s children (the assault on the friend is count 3 in the indictment).
[6]	The next assault was about three weeks later.  It involved Mr Ngamotu head butting his partner, resulting in laceration to her right eyebrow that required stitches.
[7]	There is then a gap of four years to December 2007.  An argument in the car whilst on the way to work saw Mr Ngamotu divert to a beach area.  His partner was pulled from the passenger seat and forced against the car with his forearm against her throat.  This caused a difficulty in breathing that lasted for some time.  As a consequence, Mr Ngamotu was charged both with assault with intent to injure, and threatening to kill.  
[8]	During the same month an argument during the evening meal saw Mr Ngamotu grab his partner’s head in his hands.  As a result of his clawing action while doing this, his partner’s earring was ripped from her ear.  Not surprisingly this resulted in a laceration and considerable bleeding.
[9]	Next, still in the same month, as a result of an argument over money, Mr Ngamotu punched his partner in the head and pushed her to the ground.
[10]	Moving on four months, Mr Ngamotu became angry because his partner was visiting a friend in hospital rather than attending to his needs.  He pursued her to the hospital, and forced her to leave.  As she and two of the children approached the car having been required to leave, he came up beside her and punched her in the head.
[11]	The next day there was an argument again over money, resulting in a further assault involving four punches to the face.  This resulted in another gash above her eye and a black eye.  The following day Mr Ngamotu threw a closed Stanley knife at his partner.  She ducked and avoided it.  It hit the wall behind her and broke.
[12]	Again around the same time, but a few days later, Mr Ngamotu became annoyed because he felt that his partner had embarrassed him in front of work colleagues.  When he came home he kicked her in the leg and stomach with steel capped boots.  He continued to kick her while she was on the floor.  A month later, in the course of a further argument, he likewise kicked her with his boots on.
[13]	Around the same time a further argument resulted in punches, obscenities, and a threat to kill.  That was the last of the charged assaults concerning his partner.
[14]	The remaining counts concern Mr Ngamotu’s children.  The first charge relates to using a leather belt across his oldest son’s back, bottom and legs.  This caused extensive bruising such that the child could not walk properly or sit down for a number of days.  Eighteen months later, Mr Ngamotu assaulted the same son by punching him in the head several times.
[15]	The last two assaults concern a different son.  Between the time of the two assaults already described in relation to his brother, Mr Ngamotu assaulted his middle son by pushing him down onto the floor, picking him up by his hair, and taking him to the bedroom where he punched him and then hit him with a belt across his back, his legs and buttocks.  About a year later, Mr Ngamotu assaulted the same boy by hitting him across the head and face with some swimming flippers.
[16]	The final charge is a charge of cruelty to child, which concerns taunts made by Mr Ngamotu to all three children concerning the parentage of the middle son.  The reasons why there were issues in Mr Ngamotu’s mind need not be discussed but the outcome was a pattern of mental abuse of this child focused around that topic.
Sentencing Remarks
[17]	The Judge described the facts, and then referred to the victim impact statements.  The victim impact statement of Mr Ngamotu’s partner, as might be expected, reveals someone who not only was the recipient of numerous serious assaults over a sustained period of time, but someone whose self respect and self confidence were totally eroded by Mr Ngamotu’s abusive conduct.
[18]	The children in their statements reveal the not uncommon internal conflicts that many feel in this area.  They enjoy life as it presently is without the threat of constant assaults by Mr Ngamotu but at the same time feel sad about the circumstances and miss their father.
[19]	Having noted these matters, the Judge indicated some uncertainty as to the correct approach.  Her Honour was concerned that she could not take a satisfactory single starting point on any one assault, so settled upon a series of cumulative sentences.  These figures were reached by taking individual starting points and discounting them by the agreed guilty plea discount of 20 percent.
[20]	The first component was a final sentence of two years, two months’ imprisonment.  This was applied to the first incident where the tooth was knocked out.  The final figure includes a two month uplift for previous offences, and the 20 percent discount for the guilty plea.
[21]	To this base sentence the following cumulative terms were imposed:
	(a)	Eight months for the assault with a weapon (throwing the knife);
	(b)	Nine and a half  months for the assault with intent to injure being the forearm against the throat, and the threatening to kill incident (this cumulative sentence was effectively the operative penalty for all the remaining assaults against his partner);
	(c)	14 and a half months for the assault on the child with a belt (this captured the penalty for all the offending against the children); and
	(d)	Four and a half months for the assault on his partner’s friend.
[22]	The total effective sentence was five years, two months, two weeks’ imprisonment.
Submissions on appeal
[23]	In general terms, Mr Snell makes two primary points.  First, the individual sentences in relation to some of the assaults are unsustainable. For example, the incident of throwing the knife was an assault in the sense of threatening force but in fact the knife, which was closed, hit a wall.  The sentence of eight months was manifestly excessive.  Second, although her Honour had regard to the totality principle, the final outcome was excessive by 12–18 months.
[24]	By way of background, but not advanced as an excuse, Mr Snell observed that Mr Ngamotu himself came from a very violent upbringing.  His mother was a homicide victim in the family home and generally Mr Ngamotu had experienced and learned violence as a response to situations.  Mr Snell submitted that it was apparent Mr Ngamotu was now gaining some insight into the impact of his actions, particularly as regards his children.  He recognised there were anger management and violence issues to address.
[25]	A central plank of the appeal was that the individual offending, both in isolation and on a comparative basis with other conduct caught by these types of charges, was not that serious.  None would attract more than a year in jail, and a final outcome of more than five years’ imprisonment highlights that the totality principle has not been properly applied.
[26]	There are three primary components to the final sentence:
	(a)	Three years five months for the offending on his partner;
	(b)	Four and a half months for the offending on his partner’s friend;
	(c)	14 and a half  months for the offending on the children.
Mr Snell submitted the first two components were both excessive.  Whilst punching and hitting was to be deplored, the physical damage was comparatively modest.  Concerning the children, whilst again the offending was plainly wrong, the assaults were corrective or learning in nature, rather than “full‑on” beatings.
[27]	Ms Epati for the Crown emphasised that the key question is always the availability of the final sentence rather than the means by which it was constructed.  She emphasised the period of time over which the offending spanned, and the number of victims.  In relation to his partner the charges represent sustained domestic abuse that has had significant impact on the victim.  The offending against the children was particularly cruel.
[28]	Although various cases were referred to, both counsel accepted that nothing of particular comparability was available.  In an earlier decision of this Court in R v Wilson a sentence of seven years was upheld.  Reinforcing counsel’s point that the other cases were of limited assistance, it can be observed that in Wilson there was a charge of injuring with intent to cause grievous bodily harm (which at 10 years carried twice the maximum penalty of any charge in this case), but the case involved a single victim only.
Decision
[29]	We are of the view that whilst the sentence was at the higher end of what was available, it was within range.  Several points inform this.  First, we do not accept that 14 months for the offending in relation to the children was excessive.  More was possible.  The offending was cruel.  Opportunities were manufactured for violence.  On one occasion the child could not walk or sit properly for days.  The treatment of the middle son about his parentage was despicable.
[30]	Second, the second charged assault, which was the occasion on which a friend of Mr Ngamotu’s partner was also assaulted, is instructive of the nature of the offending.  Mr Ngamotu felt no constraint, but rather was content to assault his partner in front of the other woman and her children.  He then proceeded to assault the other woman when she sought to protect her friend.
[31]	Third, we accept Ms Epati’s characterisation that this was a bad case of domestic violence.  Although the individual beatings may not have resulted in some of the more serious outcomes that come before the Courts, there was permanent damage to a tooth, threats to kill, restricting of the airway, kicking with steel capped work boots, and gratuitous violence to the children.

[32]	
Fourth, the emotional impact on both Mr Ngamotu’s partner and his children has been significant, and will undoubtedly be long felt.  Whilst the conduct may in significant measure reflect Mr Ngamotu’s own background, one cannot in any way condone the repetition of violence to future generations.
[33]	Finally, if as Mr Snell submits, Mr Ngamotu has gained some insight into his offending, that can be developed and demonstrated during his sentence.  If genuine it will impact on his release date since it will directly impact on the risk he poses.  It does not justify, at this point, a reduction of an otherwise available sentence.
[34]	The appeal is dismissed.

Solicitors:
Crown Law, Wellington for respondent