Nepata v Police

[2025] NZHC 773

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-53

[2025] NZHC 773

BETWEEN

NESBIT MANEY NEPATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 April 2025
Appearances:	E K Moore for Appellant G L Collett for Respondent
Judgment:	3 April 2025

ORAL JUDGMENT OF EATON J

(appeal against sentence)

NEPATA v POLICE [2025] NZHC 773 [3 April 2025]

Introduction

[1]                 Nesbit Maney Nepata (aged 34) pleaded guilty to 16 charges of theft not exceeding $500,1 one charge of theft exceeding $1,000,2 and two charges of failing to report to a probation officer as directed.3 He was sentenced to 21 months’ imprisonment by Judge Farish on 31 January 2025 and now appeals that sentence.4

Facts

[2]                 Between 8 January 2024 and 23 December 2024 Mr Nepata  committed the 17 theft offences. He stole food and other items from supermarkets, took fuel without paying, and stole from a variety of other stores. The total value of items stolen for the 16 lower-level charges is $1,764.08. On 23 December 2024, he stole a dive bag containing items to the value of $3,300. The three victims of that offending were diving off the Kaikoura Peninsula  and  had  left  their  belongings  on  the  rocks.  Mr Nepata took the bag containing two cell phones, prescription glasses, car keys and other personal items. He was later stopped by police and most of the stolen items were located and recovered. He told police he had found them on the beach and that no one had been around.

[3]                 On 29 May 2024 while on a sentence of supervision Mr Nepata failed to report to a probation officer and two weeks later, on 12 June 2024, while serving his sentence of community work, he again failed to report to a probation officer.

District Court Decision

[4]                 The Judge adopted a global starting point of 23 months’ imprisonment calculated as one month for each theft not exceeding $500, and four months in relation to the theft of over $1,000 and it appears the Judge imposed a further sentence of  one month for each of the charges of failing to report.5 The Judge applied a four-month

1      Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment. The Judge incorrectly categorised these as 17 thefts under $100.

2      Sections 219 and 223(b); maximum penalty seven years’ imprisonment.

3      Sentencing Act 2002, ss 71(1)(a) and 70(a); each with maximum penalty three months’ imprisonment or $1000 fine.

4      Police v Nepata [2025] NZDC 1701.

5      The Judge wrongly referred to 17 rather than 16 charges of theft under $500.

uplift to reflect Mr Nepata’s criminal history and that he had offended whilst on bail— that equates to an uplift of around 17.5 per cent. The Judge then applied a 20 per cent deduction for Mr Nepata’s guilty plea and a five per cent deduction for his rehabilitative prospects. An end sentence of 21 months’ imprisonment was imposed. The Judge refused to grant Mr Nepata leave to apply for home detention.

Principles on appeal

[5]                 Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Discussion

[6]                 The principal argument advanced by Ms Moore on behalf of Mr Nepata is that the Judge erred in not commuting the short-term sentence of imprisonment to a sentence of home detention. She did nevertheless submit that the global starting point was too high, that a full guilty plea credit should have been allowed and that a deduction for parental incarceration was available. I will deal first with those secondary submissions.

[7]                 As for the starting point, there is no guideline case for sentencing in dishonesty offending. That reflects the very wide array of factual circumstances that can arise in such offending.9 Ms Moore, in relation to the theft charges, refers particularly to

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

9      Rako v R [2015] NZCA 463 at [9].

two authorities.10     I have considered those cases and other cases that I recently discussed in Smith v Police.11

[8]                 In Smith the sentencing Judge had adopted a starting point in relation to      29 charges of theft under $500 by imposing a one-month cumulative sentence for each charge. The same approach was adopted for Mr Nepata. In Smith I acknowledged that the Judge had taken a pragmatic and uncomplicated approach albeit one that was not referenced to authority. I also observed that what was missing from that approach was consideration of the totality principle.

[9]                 In Mr Nepata’s case, the Judge did make a small error in that Mr Nepata was in fact facing 16, not 17, charges of theft under $500. That led to a starting point that was one month too high.

[10]              I do not think there can be an issue with the uplift of two months to reflect the two breaches of sentence. The real question is whether a (corrected) starting point for the theft offending of 20 months was, to use the language of s  85  of  the  Sentencing Act 2002, wholly out of proportion to the gravity of the overall theft offending. In my view, the corrected adjusted starting point was at the highest end of the available range but not wholly out of proportion to the gravity of that offending.

[11]              Ms Moore does not raise issue on appeal with the uplifts for personal aggravating factors. She does however submit that a full 25 per cent credit should have been allowed for guilty pleas rather than 20 per cent. Crown counsel, in written submissions, submits that any further credit for guilty pleas can be offset against what is said to a low-level starting point and low-level uplift adopted by the Judge. In my view, it is more appropriate to assess the appropriate level of guilty plea credit discretely. Whether the end sentence was manifestly excessive is another question. Ms Moore tells me that the guilty pleas were entered at Mr Nepata’s third appearance and that at the second appearance,  those  pleas  had  been  deferred  because  the  two breach charges were laid. In those circumstances, I am satisfied the pleas were

10     Henry v Police [2016] NZHC 800; and Wilson v Police [2021] NZHC 198.

11     Smith v Police [2025] NZHC 244.

entered at the first reasonable opportunity and there is no reason not to allow the full 25 per cent deduction.

[12]              Ms Moore submits the Judge erred in not allowing a deduction for the consequences of parental incarceration. She submits that Mr Nepata was the sole caregiver for his two children at the time he was remanded in custody. A sentence deduction to recognise the consequences for children of parental incarceration is not only available in rare circumstances, but a deduction is not automatic. The facts are that Mr Nepata has been in and out of custody for the past 15 years. As the Judge recognised, he has a well-established path of offending very shortly upon his release, leading to further custodial remands and sentences of imprisonment. As the Judge said in relation to the question of a deduction for parental incarceration, “[c]hildren need security, they need consistency and they need stability”. Mr Nepata provided none of that to his children when he was locked up for shoplifting and arrested. The Judge further observed:12

I imagine they have now got into a pattern of knowing they can call an aunty or call a family member and find out who is going to care for them that night and who is going to feed them.

[13]              In my view, yet another period of separation from his children as a result of the current sentence of imprisonment is not likely to have any tangible impact on his children. Sadly, they will be well-versed in his entrenched lifestyle. The Judge did not err in declining to allow a deduction for parental incarceration.

[14]              From a corrected starting point of 22 months’ imprisonment and applying a net deduction of 12 per cent, that is 30 per cent for guilty pleas and rehabilitative prospects less 18 per cent uplift for previous convictions and offending on bail, the end sentence, rounded down is one of 19 months’ imprisonment.

[15]              Returning then to the central issue on appeal, that is whether Mr Nepata’s short-term sentence of imprisonment should have been commuted to a sentence of home detention, Ms Moore submits that the interests of his children is such that home detention is the least restrictive appropriate sentence. She stresses that the offending

12     Police v Nepata [2025 NZDC 1701 at [16].

was essentially shoplifting and not offending that of its nature calls for the ultimate sanction of imprisonment.

[16]              The Judge took the view that the public at large and, in particular, the businesses targeted by Mr Nepata, deserve a break from his offending. I see no flaw in that approach.

[17]              But in my view, Mr Nepata’s more recent acknowledgement that he has a methamphetamine addiction that needs to be addressed is a small but significant step in the right direction. Neither in the District Court nor on appeal does he advance a positive proposal for rehabilitative treatment. Home detention to a residential facility where his addictions might be addressed would be appropriate if indeed Mr Nepata is assessed as motivated to engage in such a programme. I do not agree with Ms Moore that home detention to another address that would permit him to reunite with his children would be appropriate. The risk of him offending as an untreated addict, having regard to his history, is simply too high.

Result

[18]              The appeal is allowed. The sentence of 21 months’ imprisonment is quashed, and a sentence of 19 months’ imprisonment is substituted on the charge of theft over

$1,000. The other sentences remain.

[19]              I grant leave under s 80I of the Sentencing Act for Mr Nepata to apply for home detention, but I do so on the understanding that, in my view, leave would only be granted if he were proposing to reside at an appropriate residential rehabilitative facility.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch

Public Defence Service, Christchurch