Karepa v The Queen

[2017] NZCA 179

IN THE COURT OF APPEAL OF NEW ZEALAND

CA655/2016
[2017] NZCA 179

BETWEEN	DAINE RIHARI KAREPA Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	G R Tomlinson for Appellant A J Ewing for Respondent
Judgment:	12 May 2017 at 4.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

1. Daine Karepa appeals against an effective end sentence of two years and four months’ imprisonment imposed on conviction after trial in the Tauranga District Court for indecent assault on a female and theft of her cellphone.[1]

Facts

[1]R v Karepa [2016] NZDC 25120.

1. The sentencing notes are unsatisfactory but we have been able to locate the relevant facts, which can be summarised briefly from other sources.  In the early hours of the morning on 16 December 2012, the 20-year-old victim was waiting to meet her friend at a skate park having attended a festival.  Mr Karepa, who was then aged 16, approached the victim, complimented her on her phone and asked her for sex.  She declined and, becoming frightened, left to go home.  Mr Karepa initially followed her on his bicycle and then chased her on foot into an area of bush.  He caught her after she tripped and fell and managed to get on top of her.  He lifted her top and bra and bit her nipple.  The victim, who was crying, eventually managed to kick him off.  Mr Karepa stole her cellphone as he left. 

2. Mr Karepa was found guilty of indecent assault by a jury.  He had earlier pleaded guilty to the theft of the cellphone. 

Sentencing decision

1. Judge Thorburn adopted a starting point of two years and six months’ imprisonment for the lead charge of indecent assault.[2]  He allowed a 20-per‑cent discount, equating to six months, to take into account Mr Karepa’s youth at the time of the offending.[3]  The Judge then applied an uplift of four months’ imprisonment for the theft.[4]  This resulted in an end sentence of two years and four months’ imprisonment for the indecent assault.  The Judge imposed a concurrent sentence of four months’ imprisonment for the theft.   

Grounds of appeal

[2]At [30].

[3]At [38].

[4]At [39]–[40].

1. Mr Tomlinson contends that the effective end sentence of two years and four months’ imprisonment was manifestly excessive.  He argues that it should have been no more than two years’ imprisonment, thereby enabling home detention to be considered.  Mr Tomlinson submits that this result should have been achieved by the Judge in one of two ways:

   (a)By not applying any uplift for the theft.

   (b)By making a corresponding reduction to reflect the totality of the offending.

2. Mr Tomlinson argues that while theft is different in kind from indecent assault, the offending should be regarded as a single transaction and the Judge was wrong to “cumulate” or “uplift” in these circumstances.  Alternatively, Mr Tomlinson argues that the Judge failed to address the totality of the offending, as he was required to do under s 85 of the Sentencing Act 2002.

Decision

1. This was a premeditated and terrifying attack on a female victim who was on her own late at night.  The victim has suffered considerable harm as a result.  She has been diagnosed with post-traumatic stress disorder and she suffers from anxiety and depression for which she requires medication.  The starting point the Judge adopted of two years and six months’ imprisonment was well within range for the indecent assault.  Mr Tomlinson does not argue otherwise.          

2. We are not persuaded that the Judge made any error in applying an uplift for the theft of the cellphone.  This was an aggravating feature that needed to be recognised in the end sentence.  By stealing her cellphone, Mr Karepa left the victim alone in a secluded area of bush in a traumatised state late at night without any means of calling for help.  In considering the appropriate sentencing response, the Judge was also entitled to take into account Mr Karepa’s prior convictions for dishonesty, including eight for burglary, three for theft and three for receiving stolen property. 

3. We are also not persuaded that the sentence can be challenged as being disproportionate to the totality of Mr Karepa’s offending.  In our view, the effective end sentence of two years and four months’ imprisonment was well within range if not generous to Mr Karepa and there is no basis for us to interfere with it.

Result

1. The appeal is dismissed.

Solicitors:
Gowing & Co Lawyers Ltd, Whakatane for Appellant
Crown Law Office, Wellington for Respondent