Hepi v Police - [2013] NZHC 2690

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-29 [2013] NZHC 2690

BETWEEN
ANGELA MILLY HEPI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 October 2013
Counsel:	WT Nabney for Appellant JJ Rhodes for Respondent
Judgment:	16 October 2013

JUDGMENT OF BREWER J

Solicitors/Counsel: WT Nabney (Tauranga) for Appellant
Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

HEPI v POLICE [2013] NZHC 2690 [16 October 2013]

[1] Ms Hepi appeals her sentence of three years’ imprisonment handed down against her in the District Court at Tauranga on 6 September 2013 by Judge IB Thomas. The sentence was in response to a charge set out in the information to which the appellant pleaded guilty of wounding with reckless disregard for the safety of others. This is an offence pursuant to s 188(2) of the Crimes Act 1961 and carries a maximum term of imprisonment of seven years.

[2] The fact situation to which the District Court Judge had to have regard can be summarised shortly.

[3] The appellant and her partner of 16 years had had a tempestuous domestic relationship. On the evening in question, they were again arguing. The partner had his back to the appellant. Without warning, the appellant picked up a 33 cm long carving knife, walked up behind him and stabbed him in the right side of his neck. Upon being stabbed, her partner turned towards the appellant and received another wound on his left hand. The appellant then left the address. The partner was airlifted to hospital for treatment.

[4] The injury received by the partner to his neck is described as a 1.5 cm horizontal laceration deep to fascia, paraspinal muscles; branch of right occipital artery, actively bleeding with 100% division. There was a laceration to the left hand which required repair of the left superficial radial nerve.

[5] The pre-sentence report identified that the appellant is a mature woman of 47 years. She has a limited history of previous offending which is restricted to driving offences. In reality, she is a first time offender. The compiler of the pre- sentence report assessed the likelihood of the appellant re-offending as being low. The report cited her evident remorse and steps that she was taking to address her problem with alcohol. The report also mentioned that she had suffered from postnatal depression. Today, Mr Nabney for the appellant tells me that the materials before the District Court Judge were 18 months old insofar as the postnatal depression is concerned. None of the material linked the postnatal depression to the attack by the appellant on her partner.

[6] The pre-sentence report recommended home detention. It was noted that the appellant has the care of two very young children.

[7] The appellant’s partner, Mr Wairepo, expressed his views in his victim impact statement. He reports on his injuries but he does not want the family relationship to be shattered. He says:

For me the best thing that could come out of this would be individual counselling for myself and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hepi v Police

Details

AGLC: Hepi v Police [2013] NZHC 2690
Case: [2013] NZHC 2690
Decision Date: 16 October 2013

CaseChat Overview and Summary

Angela Milly Hepi appeals her three-year imprisonment sentence imposed by the District Court at Tauranga on 6 September 2013, following her guilty plea to wounding with reckless disregard for the safety of others, a charge under s 188(2) of the Crimes Act 1961. The High Court judges the appeal on 16 October 2013, with WT Nabney representing the appellant and JJ Rhodes representing the respondent. The court identifies the key issue as whether the District Court Judge correctly applied the principles from the case of R v Nuku to determine the appropriate starting point and discount for the sentence.

The court finds that the District Court Judge correctly applied the principles from R v Nuku, but the charge of wounding with reckless disregard for the safety of others requires a different approach than the charge of wounding with intent to injure. The court acknowledges that the appellant did not have an actual intention to wound her partner, but her actions were extremely reckless. Comparing the present case to other cases involving similar charges, the court determines that a starting point of three years' imprisonment is justified. The court also considers the mitigating factors, such as the appellant's postnatal depression, genuine remorse, and care for her two young children. However, the court does not elevate the appellant's postnatal depression as a significant mitigating factor, as there is no causal link between her depression and the offence.

The court concludes that the 40% discount given by the District Court Judge for the personal factors and early plea of guilty is appropriate, resulting in a sentence of one year and 10 months. The court decides that a sentence of home detention is more suitable, considering the appellant's circumstances and the victim's desire to preserve their family unit. The High Court allows the appeal, quashes the three-year imprisonment sentence, and substitutes a sentence of 10 months' home detention with specific conditions.

Orders