Napia v The Queen - [2019] NZCA 618

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA193/2019
[2019] NZCA 618

BETWEEN	JOHNSON MAHANGA NAPIA Applicant
AND	THE QUEEN Respondent

Court:	Clifford, Ellis and Peters JJ
Counsel:	A E Ngapo-Lipscombe for Applicant J M Irwin for Respondent
Judgment: (On the papers)	5 December 2019 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The applicant, Mr Napia, seeks leave to bring a second appeal against sentence. We may grant leave only if satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[1]

Background

[1]Criminal Procedure Act 2011, s 253.

In April 2018, Mr Napia pleaded guilty to 15 charges of, amongst other things, injuring, wounding, burglary and aggravated burglary. Mr Napia committed the first offence in August 2017 and the balance over three days/nights in December 2017. For present purposes it is not necessary to describe the offending in any detail. It suffices to note that it involved, amongst other things, acts of significant violence against elderly and vulnerable relatives in their homes during the early hours of the morning. Mr Napia was aged 19 and intoxicated on alcohol and drugs at the time of the offending.
Judge Hollister-Jones sentenced Mr Napia in October 2018.[2] The Judge adopted a starting point for the offending of 10 years, six months’ imprisonment, which he then increased by six months for Mr Napia’s prior convictions and because Mr Napia committed the December 2017 offending whilst on bail for the August 2017 offending. The Judge then made deductions totalling 45 per cent for mitigating factors, and gave a further 25 per cent deduction for Mr Napia’s guilty pleas. Mr Napia’s end sentence was four years, six months’ imprisonment.

First appeal

[2]R v Napia [2018] NZDC 22558.

The Solicitor-General appealed to the High Court on the ground the sentence was manifestly inadequate.[3] Lang J was required to allow the appeal if satisfied there was an error in the sentence imposed and that a different sentence should be imposed.[4]
[3]Solicitor-General v Napia [2019] NZHC 742.
[4]Criminal Procedure Act, s 250(2).
Lang J was satisfied the Judge had erred in two respects. First, Lang J accepted the Solicitor-General’s submission that the Judge had erred in determining the starting point. Lang J corrected the error, and increased the starting point to 11 years, six months’ imprisonment.[5] The six-month uplift for prior convictions and offending whilst on bail was left in place, and so the sentence prior to deductions for mitigating factors was 12 years’ imprisonment.
[5]Solicitor-General v Napia, above n 3, at [28].
Mr Napia does not dispute that the Judge made the error concerned, or that Lang J’s increased starting point was a proper one.
Secondly, the deductions the District Court Judge made for mitigating factors included 10…

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.

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Details

Case: [2019] NZCA 618
Decision Date: 5 December 2019 at 10 am

CaseChat Overview and Summary

The case of Napia v The Queen concerns an application for leave to bring a second appeal against sentence. Mr. Johnson Mahanga Napia, the applicant, had previously been sentenced to four years and six months’ imprisonment for multiple charges, including injuring, wounding, burglary, and aggravated burglary. The Crown appealed the sentence to the High Court, which increased the sentence to five years and nine months’ imprisonment. Mr. Napia now seeks leave to bring a second appeal against his sentence. The legal issue before the Court of Appeal was whether the application for leave to bring a second appeal against sentence should be granted. The Court considered whether the appeal involved a matter of general or public importance or if a miscarriage of justice may have occurred or may occur unless the appeal is heard. The Court of Appeal found that neither ground for granting leave was made out. The Court found that further guidance on the significance of s 27 factors in sentencing was not required, as existing authorities provided sufficient guidance. Additionally, the Court found that no miscarriage of justice had occurred, as the High Court had correctly identified an error and imposed a different sentence. Therefore, the Court declined Mr. Napia’s application for leave to bring a second appeal against sentence.

Orders