Karipa v The King
[2025] NZCA 274
•25 June 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA22/2025 |
| BETWEEN | GEOFFREY NGAHAKU HOHEPA KARIPA |
| AND | THE KING |
| Hearing: | 14 May 2025 (further information received 20 May 2025) |
Court: | Cooke, Venning and van Bohemen JJ |
Counsel: | N P Bourke for Appellant |
Judgment: | 25 June 2025 at 2.30 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by van Bohemen J)
Mr Karipa appeals the sentence of six years and five months’ imprisonment imposed by Judge M A Crosbie in the District Court at New Plymouth on 19 August 2024,[1] after Mr Karipa had pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm.[2]
[1]R v Karipa [2024] NZDC 19745 [sentencing notes].
[2]Crimes Act 1961, s 188(1). Maximum sentence 14 years’ imprisonment.
Mr Karipa contends his sentence is manifestly excessive because the Judge erred by not providing a sufficient discount for Mr Karipa’s guilty plea.
Mr Karipa filed his appeal on 17 January 2025, more than four months out of time, so seeks leave for an extension of time under s 231(3) of the Criminal Procedure Act 2011.
Relevant background
As directed to Mr Karipa, the following summary of the offending was contained in the Judge’s sentencing notes:[3]
[7] … You and your ex-partner and a couple of your children were in Hāwera getting some takeaways. [Victim 1] and [victim 2] were in the vicinity. They had arrived to pick up, as I understand it from the Crown, pre‑ordered takeaways.
[8] At that point something seemed to snap in you. Now I do not know whether it was because of something from the past or words that were said, but whatever happened you wanted to get across to them. Your ex-partner restrained you several times from leaving the takeaway shop and then from approaching the victims. I want to stress that because that is a little unusual. You were there with her and the kids. She obviously wanted to hold you back so this did not go any further, particularly I think because your kids were there. That is something that I am going to keep stressing today.
[9] Then another man, who as I understand is yet to go to trial, became involved. He approached the victim as you grabbed victim 1. There was a physical altercation where it seems that all four of you were grabbing at each other. While the other man on your side of the argument was punching victim 2, you threw several punches using both hands at victim 1’s head and upper body. He then defended himself by kicking out at you. The other offender aimed a kick at victim 1’s head which connected and then you punched him in the right-hand side of his head using your right fist. The other offender then leaves.
[10] While he was lying on the ground motionless, you walk up to victim 1 and, using your right leg, stomped on his head once before walking back to the shop. He remained on the ground convulsing. You walked back and put him in the recovery position. As other members of the public approached to assist you left with the children.
[11] The victim was flown from Hāwera Hospital to Waikato Hospital and placed in an induced coma. He was not expected to survive, but he did. He is here today, and he tells me, because of what happened, that he ended up almost dying although he cannot remember anything about the actual assault itself — he remembers waking up in hospital.
[12] The effects have left him with a brain haematoma and a fractured nose in three places. He struggles with memory. He is tired all the time and struggles with headaches. He notices his tolerance for things is a lot shorter. He seems to get angry very quickly now and describes what he would describe as a “short wick”. He finds it hard to concentrate and often has mood swings. …
Procedural history
[3]Sentencing notes, above n 1.
Mr Karipa was arrested on 9 November 2023, three days after the offending occurred. He was initially charged with wounding victim 1 with intent to cause grievous bodily harm and with assaulting victim 2 with intent to cause injury.[4] He was remanded in custody at Rimutaka Prison. His first appearance was on 9 November 2023. On 28 November 2023, Mr Karipa entered pleas of not guilty and elected trial by jury. There was a case review hearing on 19 March 2024. On 9 July 2024, at the first callover, Mr Karipa entered a guilty plea to the single charge, amended to causing grievous bodily harm with intent to cause grievous bodily harm, with respect to victim 1. The charge with respect to victim 2 was withdrawn.
Sentence imposed in the District Court
[4]Crimes Act, s 193. Maximum sentence 3 years’ imprisonment.
The Judge considered the defining aggravating feature to be the stomping on the head of the victim while motionless on the ground.[5] The Judge also assessed the violence as extreme and had resulted in serious injury with life threatening potential.[6]
[5]Sentencing notes, above n 1, at [35].
[6]At [36].
Having regard to the sentencing bands in R v Taueki,[7] the Judge adopted a starting point of seven and a half years’ imprisonment. He added an uplift of four months because the offending occurred while Mr Karipa was subject to a previous sentence and further uplift of eight months because of Mr Karipa’s previous convictions for serious and concerted offending.[8]
[7]At [22], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
[8]Sentencing notes, above n 1, at [37].
The Judge declined to follow the submission of Mr Karipa’s counsel that there should be a discount of 20 per cent for Mr Karipa’s guilty plea. The Judge observed that Mr Karipa had initially elected trial by jury and that the case against him was relatively strong. He considered Mr Karipa was entitled to no more than 17.5 per cent for his plea.[9] A further allowance of a 10 per cent was made for Mr Karipa’s personal circumstances.[10]
[9]At [38].
[10]At [39].
The end sentence was six years and five months’ imprisonment.[11]
Approach on application for leave and on appeal
[11]At [43].
The question on an application to extend time under s 231(3) of the Criminal Procedure Act is whether it is in the interests of justice to grant the extension, taking into account all relevant circumstances. The Court should consider why the appeal was filed late and whether the appeal has merit, with the second question usually determinative of the interests of justice.[12]
[12]Smith v R [2020] NZCA 221 at [3]–[4]. See also R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99]; and R v Knight [1998] 1 NZLR 583 (CA) at 587.
Under s 250(2) of the Criminal Procedure Act, the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.[13]
[13]Criminal Procedure Act 2011, s 250(3).
It is well-established that an appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that is material to the exercise of the lower court’s sentencing discretion.[14] Unless there is a material error in the end sentence, the court will not intervene.[15] The focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.[16] Mere tinkering is not permitted.[17]
Evidence and submissions for Mr Karipa
[14]R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[139]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].
[15]Tamihana v R, above n 14, at [14], citing Te Aho v R [2013] NZCA 47 at [30].
[16]Tamihana v R, above n 14, at [14], citing Tutakangahau v R, above n 14, at [36] and Ripia v R [2011] NZCA 101 at [15].
[17]See for example Cao v Police [2022] NZHC 2034 at [19]; and Maihi v R [2013] NZCA 69 at [21].
Mr Karipa has filed an affidavit in which he says he informed his then counsel after he was sentenced on 19 August 2024 that he wished to appeal the sentence because he was unhappy with it. He says he had understood his counsel had or was going to file an appeal, but he was advised by letter dated 10 October 2024 that his counsel considered the chances of success on appeal were very low, so no appeal had been filed. Mr Karipa says that, because of the prison environment, it took him some time to obtain and complete legal aid forms, but that Mr Bourke was assigned to his case on 13 January 2025. The notice of appeal was filed four days later.
Mr Bourke submits the sentence is manifestly excessive. He accepts the starting point and uplifts and the discount for Mr Karipa’s background were all within the permissible range but argues that the discount for the guilty plea should have been 25 per cent.
Mr Bourke refers to the discussion of guilty plea discounts in this Court’s decision in Moses v R and the Supreme Court’s decision in Hessell v R,[18] and submits that the Judge erred in deciding on the guilty plea discount solely by reference to the time when the plea was entered and the Judge’s assessment of the strength of the case against Mr Karipa. Mr Bourke also says the Judge erred in assuming that the evidence would have been assessed by the date of trial election and failed to have regard to relevant provisions of the Criminal Disclosure Act 2008, in particular ss 12 and 13, which set out timeframes for information to be provided to a defendant and for full disclosure after a defendant has entered a not guilty plea. Mr Bourke says it is only after these steps have been completed that a defendant is in a position to make an informed decision about whether to enter a guilty plea.
[18]Moses v R [2020] NZCA 296, [2020] 3 NZLR 583; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Mr Bourke submits that, for various reasons, including systemwide difficulties experienced by lawyers trying to communicate with clients held at Rimutaka Prison, Mr Karipa’s then counsel had been unable to see Mr Karipa in early 2024. Mr Bourke says it was only close to the case review hearing on 19 March 2024 that counsel had been able to show Mr Karipa the CCTV footage of what had happened. After viewing that footage, Mr Karipa instructed his then counsel that he would plead guilty to the charge. Because of other commitments, his counsel did not act immediately on those instructions but elected to arrange for the plea to be entered at the callover in July 2024. Mr Bourke says this delay should not be held against Mr Karipa.
Mr Bourke also submits that the Judge gave too much weight to the assumed strength of the case against Mr Karipa. After the appeal hearing, Mr Bourke filed a copy of this Court’s decision in Subritzky v R in support of this submission.[19]
Submissions for the Crown
[19]Subritzky v R [2025] NZCA 158.
Ms Woodcock, counsel for Crown did not oppose the grant of leave, but submits that the Judge did not apply a prescriptive approach and that the discount was, in all the circumstances, nuanced and reasonable.
Ms Woodcock notes that the Judge acknowledged the communication difficulties but placed more weight on the timing of the plea and the strength of the case against Mr Karipa, as evidenced by the CCTV footage. While Mr Karipa may not have been able to see the CCTV footage until March 2024, he knew from his own involvement that the assault on the victim had been serious — as shown by his putting the victim in the recovery position before leaving the scene.
Ms Woodcock notes that, despite his knowledge of what had happened, Mr Karipa chose to enter a not guilty plea at the first opportunity and filed three applications for electronically monitored bail in late 2023 and early 2024.
Referring to the decisions in Hessell and Moses, Ms Woodcock says the approach to guilty plea discounts is discretionary and depends on an evaluative exercise in each individual case.[20] She notes that a relevant consideration is whether a defendant pleads guilty at the first reasonable opportunity and that when that opportunity arose is a matter for particular inquiry and not for formalistic quantification.[21]
[20]Hessell v R, above n 18; and Moses v R, above n 18.
[21]Citing Hessell v R, above n 18, at [75].
By reference to emails exchanged between the Crown and Mr Karipa’s then counsel in February and March 2024 as annexed to her submissions, Ms Woodcock points out that Mr Karipa’s then counsel had spoken to Mr Karipa by phone as early as 28 February 2024 and had been informed of the CCTV evidence, the willingness of the Crown to drop the charge in relation to victim 2 in return for a guilty plea on the lead charge in relation to victim 1 and the risk of diminishing credit if he delayed. She also notes Mr Karipa declined to enter a plea at the case review hearing on 19 March 2024, even after being shown the CCTV footage on 13 March 2024, and had entered a plea only at the first callover in July 2024, by which time significant time and effort had been put into trial preparation.
Analysis
Mr Karipa’s explanation of the delay for filing his appeal is not persuasive. However, the Crown did not oppose the grant of leave and we would not decline leave to extend time if Mr Karipa’s appeal had real merit.
As the submissions of both counsel acknowledge, the authoritative guidance on the approach to guilty plea discounts is provided in the decisions of the Supreme Court and Court of Appeal in Hessell and Moses respectively.
In Hessell, the Supreme Court analysed the rationale for guilty plea discounts and provided general guidance on how discounts are to be assessed and applied. It specifically departed from the approach that had previously been applied by this Court, under which discounts had been calculated according to a sliding scale, depending on when the plea had been entered. In Moses, this Court summarised the rationale for guilty plea discounts as stated by the Supreme Court.[22]
[22]See Moses v R, above n 18, at [12]–[26].
Given counsel’s submissions, it is useful to set out relevant passages from the Supreme Court’s decision in Hessell:[23]
[45] In the administration of criminal justice, courts give credit in sentencing for a guilty plea principally for policy reasons. The policy expressed in s 9(b) [of the Sentencing Act] reflects the benefits that a guilty plea delivers to the administration of justice and to those who otherwise must participate in the trial process. Avoiding the need for a trial saves the government costs associated with the judiciary and providing prosecution and defence services (the latter most often through legal aid). There are also savings in fees paid to witnesses and jurors and in costs associated with the use of court facilities. Another benefit is the reduction in the back-log of trials. The number and length of criminal trials has increased, with consequent delays in persons charged facing trial. This impedes the effective operation of the system in the interests of justice. As well as such savings in public expenditure and demands on state resources, the social utility of guilty pleas includes benefits for witnesses and, in particular, victims who are spared the stress of giving evidence in the adversarial context of a criminal trial. A guilty plea often also assists victims and their families through its acknowledgment of responsibility for the offending. Even very late pleas will usually generate some of these systemic and social benefits. These considerations are based on expediency and social utility but are of importance to the effective operation of the criminal justice system. In consequence, it is now generally recognised that providing encouragement for guilty persons to admit their guilt is a necessary incident of criminal justice.
…
[51] Section 8(e) requires that the desirability of the principle of consistency in sentencing be taken into account. Its terms do not favour the adoption of a more structured approach to sentence reductions by reference to a sliding scale according to when the plea is entered as a primary consideration. It is the desirability of consistency “in respect of similar offenders committing similar offences in similar circumstances” that must be taken into account. All circumstances in which the plea was entered must be addressed, not merely the timing. …
[23]Hessell v R, above n 18 (footnotes omitted; emphasis in original).
When discussing the previous approach of this Court, which was to treat the strength or weakness of the prosecution case as irrelevant when calculating the discount, the Supreme Court said:
[60] This approach would mean that where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given. But that treats as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility. The approach is likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty. Importantly also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases pressure of this kind could lead to a guilty plea being entered in haste, by someone who may not be guilty of the offence charged and pleaded to.
More generally, the Supreme Court said:
[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[75] … Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
In Moses, this Court said:[24]
[22] First, benefits to the judicial system and participants in it supply the principal justification for a guilty plea discount. To this extent New Zealand practice is consistent with the rationale for guilty plea discounts adopted in sentencing guidelines proposed by the Law Commission and adopted in English law. In addition, atonement experienced by the victim following the offender’s remorse may now justify a discount, though we observe that such cases may be uncommon in practice. The sentencing judge must decide which of these rationales applies and what weight will be given to them.
[23] Second, fixing the amount of the discount requires an evaluative judgment, but the relevant circumstances of the case must be those that engage any applicable rationales for the discount. The rationales established by the Supreme Court suggest that, among other things, the scale and complexity of the trial, the proximity of the plea to first appearance or to trial, the justification for any delay, the inevitability or otherwise of conviction, the benefits of not giving evidence for victims and witnesses, and the victim’s experience of atonement following the offender’s acceptance of responsibility may affect the amount of the discount, which may range from 25 per cent to nothing.
[24]Moses v R, above n 18 (footnote omitted).
Having regard to the above passages, we make the following observations.
(a)First, the justification for guilty plea discounts is based on a number of considerations, which include benefits to the administration of justice, in terms of time and cost and reducing a backlog of trials, and to those who would otherwise have to participate in the trial process; that is witnesses and, in particular, victims.
(b)Second, the time at which a guilty plea is entered, including the proximity of the plea to first appearance or to trial, is relevant to the amount of the discount, but account must also be taken of other considerations, including the strength of the prosecution case.
(c)Third, other relevant considerations include the scale and complexity of the trial, the justification for any delay in entering a plea, the benefits to victims and witnesses of not having to give evidence and any experience of atonement following a defendant’s acceptance of responsibility.
Neither the Supreme Court nor this Court established a hierarchy among the considerations that may be relevant. Both decisions emphasised the need for an evaluative analysis of the circumstances of the individual case. What is important in some cases may be less so in others. While the Court in Subritzky saw the strength of the case as of secondary importance, that was in the context of considering whether a strong prosecution case precluded any prospect of a discount where the guilty plea had been entered over a year after the charge had been laid and just three days before trial.[25]
[25]Subritzky v R, above n 19, at [11].
In Jefferies-Smith v R and Millar v R, which were referenced in Subritzky, the Court did not say the strength of the prosecution case was a secondary consideration. Rather, it observed that it would be wrong to treat the comments of the Supreme Court in Hessell as standing for the proposition that the stronger the prosecution case, the lower the guilty plea discount.[26] In Jefferies-Smith, the Court held that the strength of prosecution case was relevant and warranted a reduction from the maximum discount of 25 per cent.[27] In Millar, the Court reached a different conclusion.[28]
[26]Jefferies-Smith v R [2020] NZCA 315 at [45]; and Millar v R [2019] NZCA 570 at [36].
[27]Jefferies-Smith v R, above n 26, at [45]–[46].
[28]Millar v R, above n 26, at [39].
In Wu v R, this Court considered the guidance in Hessell and the decisions in Jefferies-Smith and Millar, as well as other relevant decisions. It said:[29]
[21] We agree that it is too stark a proposition to say that, in fixing the guilty plea discount, the stronger the prosecution case, the lower the guilty plea discount should be. However, in fixing the appropriate discount, the Court is required to take into account all the circumstances in which the guilty plea was entered. One of those circumstances will be the strength (or weakness) of the prosecution case. As the Supreme Court observed, to ignore the strength or weakness of the prosecution case would be to “[treat] as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility”. There may be cases such as Millar where, even in the face of a strong prosecution case, a reduction of 25 per cent might, in the particular circumstances, still be appropriate, but there is no “entitlement” to a 25 per cent discount as Mr Wei argued for, solely based on an early plea and without taking account of all other relevant circumstances.
[22] In a number of other decisions, this Court has accepted that the strength of the prosecution case is an important and relevant consideration in approving a discount of less than 25 per cent for a guilty plea entered at an early stage.
[23] Ultimately, the effect of the strength of the prosecution case on the appropriate reduction for a guilty plea will be a matter of assessment in all the circumstances of the particular case. ...
[29]Wu v R [2022] NZCA 604 (footnotes omitted).
We consider the above discussion properly reflects the case-by-case evaluation mandated in Hessell and Moses and confirms that the timing of the plea and the strength of the prosecution case are relevant considerations.
In Mr Karipa’s case, those were the most relevant considerations. It is not suggested that Mr Karipa’s trial would have been especially complex or unduly long. Given the apparent strength of the Crown case, neither would have been likely. Nor is there evidence to suggest that the victims would have suffered unduly in having to give evidence or that Mr Karipa has undertaken any steps of genuine atonement. His comments as recorded in the pre-sentence report indicate that he continued to blame the victims, at least in part, for what happened, while expressing some remorse. Similar comments are noted in a memorandum recording that it had been concluded that a restorative justice conference was not suitable.
The timeframes in the Criminal Procedure Act for the provision of documents and for full disclosure are of marginal relevance in Mr Karipa’s case. It is apparent that the most relevant information was the CCTV footage — which Mr Karipa had been told about and which he had viewed before the case review hearing on 19 March 2024. Despite advice of the prosecution offer to drop the charge in relation to victim 2 in return for a guilty plea on the charge in relation to victim 1, and despite what he knew from his own involvement in the fracas and the evidence of the CCTV footage, Mr Karipa declined to enter a plea at that opportunity. The correspondence between counsel shows that Mr Karipa continued to maintain that he had acted reasonably and in self-defence.
Whatever the delay of his counsel in actioning Mr Karipa’s later decision to accept the prosecution offer and enter a guilty plea to the one charge, Mr Karipa did not enter a plea at the first reasonable opportunity. That alone would have made it unlikely he would have obtained the maximum discount of 25 per cent. The strength of the prosecution case made that even more unlikely. His previous counsel recognised that reality in advocating for a 20 per cent discount.
We consider a discount of 20 per cent would have been within range. The fact the Judge decided to make a lesser discount of only 17.5 per cent was open to him, however. The difference between the two discounts is two months. The difference in Mr Karipa’s eligibility for parole is less than a month. Neither differential is significant. Importantly, in the context of Mr Karipa’s offending, we do not accept that the end sentence is manifestly excessive or has resulted in an injustice.
Accordingly, we see no merit in Mr Karipa’s appeal and, therefore, no grounds for granting leave for an extension of time.
Result
The application for an extension of time to appeal is dismissed.
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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