Katipa v Police - [2022] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000053

[2022] NZHC 3032

BETWEEN
WAYNE KATIPA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 November 2022

Appearances:

S D Taylor for the Appellant U Keller for the Respondent

Judgment:

18 November 2022

JUDGMENT OF WYLIE J

(Appeal against sentence)

This judgment was delivered by Justice Wylie On 18 November 2022 at 1.00 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
S D Taylor, Hamilton Hamilton Legal, Hamilton

KATIPA v NEW ZEALAND POLICE [2022] NZHC 3032 [18 November 2022]

Introduction

[1] The appellant, Wayne Katipa, was sentenced to two-and-a-half years’ imprisonment by Judge Down in the District Court at Huntly on 18 August 20221 after Mr Katipa had entered guilty pleas to the following charges:

(a)robbery;2

(b)driving while disqualified (third or subsequent);3 and

(c)theft (under $500) (x 12).4

[2] Mr Katipa appeals his sentence. He says that the Judge gave him insufficient credit for cultural factors and for his remorse, that as a result the sentence is manifestly excessive and that the Judge failed to impose the least restrictive sentence available.

[3] The Crown supports the sentence, submitting it falls within the available range given Mr Katipa’s offending and culpability.

Background

Driving while disqualified

[4] On 20 April 2021, Mr Katipa was disqualified from holding or obtaining a driver’s licence for a six-month period ending 19 October 2021. On Tuesday 13 July 2021, at around 11 pm, he drove a Mazda motor vehicle along Great South Road in Huntly. Police stopped the vehicle. They were several “petrol drive-off” alerts on the vehicle. Mr Katipa admitted to being a disqualified driver.

Robbery

[5] At approximately 1:45 pm on Friday, 26 November 2021, the 13-year-old victim was at his home address. Mr Katipa was dropped off at the end of the victim’s driveway. Mr Katipa knocked on the door and asked the victim about a travel centre.

1      Police v Katipa [2022] NZDC 15829.
2      Crimes Act 1961, s 234. Maximum penalty 10 years’ imprisonment.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment or a
$6,000 fine. The court must also order the person be disqualified from holding or obtaining a driver licence for one year or more.
4      Crimes Act 1961, ss 219 and 223(4). Maximum penalty three months’ imprisonment.

The victim replied that he could not help. Mr Katipa then left the property and went into a neighbour’s yard.

[6] While the victim was getting himself a drink, he heard someone climbing through a window. He went to investigate and found Mr Katipa standing in a room inside the house. Mr Katipa started asking questions such “Where’s the money?” and “Where’s the safe?”. He stated “I know you have guns here”.

[7] The victim told Mr Katipa he didn’t know and started backing away. Mr Katipa followed the victim, threatening to punch him. Mr Katipa then put gloves on and grabbed the victim’s phone so that he was unable to…

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 Katipa v Police

Details

AGLC: Katipa v Police [2022] NZHC 3032
Case: [2022] NZHC 3032
Decision Date: 18 November 2022

CaseChat Overview and Summary

Wayne Katipa, the appellant, appealed against his sentence imposed by the District Court for charges of robbery, driving while disqualified, and multiple counts of theft. Katipa argued that the District Court judge failed to give sufficient credit for cultural factors and his remorse, leading to a manifestly excessive sentence. The Crown, on the other hand, submitted that the sentence was appropriate given Katipa's offending and culpability. The primary legal issues before the court were whether the District Court judge erred in the discount for cultural factors and remorse, and if so, whether this resulted in a manifestly excessive sentence.

The court found that the Judge's 10% discount for cultural factors was inadequate, as there was a clear nexus between Katipa's upbringing and his offending. The court considered the significant socio-economic disadvantages that blighted Katipa's childhood and his early introduction to gangs, which contributed to his criminal activities. The court also found that the Judge failed to acknowledge Katipa's genuine remorse, which warranted a separate discount. The court concluded that the total discount should have been 60% instead of 45%, making the original sentence manifestly excessive.

As a result, the High Court allowed the appeal and substituted the sentence with 21 months and 2 weeks' imprisonment. The court also imposed special conditions to help reduce the risk of reoffending by Katipa and facilitate his rehabilitation and reintegration. These conditions included abstaining from alcohol and drugs, attending alcohol and drug counselling programs, and not associating with gang members or victims without approval from a probation officer. The conditions are to apply for a period of six months from Katipa's sentence expiry date.

Orders