Nepata v Police - [2024] NZHC 2309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000213 [2024] NZHC 2309

JOSEPH NEPATA

v

NEW ZEALAND POLICE

Hearing: 2 July 2024

Appearances:

F Poole and M Williamson on behalf of R Keam for the Appellant S Vreeburg for the Respondent

Judgment:

16 August 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 16 August 2024 at 2.30 pm Registrar/Deputy Registrar

Solicitors/Counsel:

R Keam, Barrister, Auckland
R van Boheemen, Meredith Connell, Auckland

NEPATA v POLICE [2024] NZHC 2309 [16 August 2024]

[1] The appellant, Joseph Nepata, appeals the sentence imposed on him by Judge K Davenport KC of two years and four months’ imprisonment in relation to the following 22 charges:1

(a)unlawful use of a motor vehicle (x 2);2

(b)receiving (over $1,000);3

(c)theft (between $500 and $1,000) (x 4);4

(d)theft (under $500) (x 14);5 and

(e)breach of community sentence.6

[2] Mr Nepata argues that the Judge erred in two respects. First, by adopting a starting point of 24 months on the lead charges of unlawful use of a motor vehicle. Secondly, by imposing various uplifts for lower-level dishonesty offending without regard to the totality principle. The overarching challenge is to the end sentence which Mr Nepata argues is manifestly excessive. He contends that the appropriate end sentence ought to be 20 months’ imprisonment which would mean that it is amenable, at least in principle, to being commuted to a home detention sentence.

[3]The respondent opposes the appeal.

Background

[4] Mr Nepata’s offending took place between June 2022 and August 2023. The offending is summarised below from most to least serious.

[5] On the first charge of unlawfully using a motor vehicle, Mr Nepata was found in a Nissan Pulsar valued at $1,600. Mr Nepata said he got the car from his brother;

1      Police v Nepata [2024] NZDC 9315.
2      Crimes Act 1961, s 226(1). Maximum penalty of 7 years’ imprisonment.
3      Crimes Act, ss 246 and 247(a). Maximum penalty of 7 years’ imprisonment.
4      Crimes Act, ss 219 and 223(c). Maximum penalty of 1 year imprisonment.
5      Crimes Act, ss 219 and 223(d). Maximum penalty of 3 months’ imprisonment.
6      Sentencing Act 2002, s 71. Maximum penalty of3 months’ imprisonment.

it was recovered but he had damaged the ignition and the driver’s door. The sentencing Judge found this not to be a credible explanation. On the second charge of unlawful use of a motor vehicle, Mr Nepata was apprehended in a Holden car that had been stolen a few days before and was valued at $5,000.

[6] The charge of receiving relates to a stolen Ramset DynaDrill valued at $1,500 that Mr Nepata advertised for sale on Facebook Marketplace.

[7] Mr Nepata also appeared initially to be facing two charges of burglary relating to metal and another (unnamed) item taken from a construction site. Those charges were downgraded to theft although the record before the Court was not clear on this aspect.

[8] There is a…

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 Nepata v Police

Details

AGLC: Nepata v Police [2024] NZHC 2309
Case: [2024] NZHC 2309
Decision Date: 16 August 2024

CaseChat Overview and Summary

Joseph Nepata appeals against the sentence of two years and four months' imprisonment imposed on him by Judge K Davenport KC, arguing that the sentence was manifestly excessive. The appeal was heard in the High Court of New Zealand, Auckland Registry. Nepata contends that the starting point for the lead charges of unlawful use of a motor vehicle was incorrectly set at 24 months, and that the imposition of various uplifts for lower-level dishonesty offending was without regard to the totality principle. The overarching challenge is to the end sentence, which Nepata argues should be 20 months' imprisonment, making it amenable, at least in principle, to being commuted to a home detention sentence. The respondent opposes the appeal.

The legal issues the court was required to decide included whether the starting point of 24 months was excessive and not commensurate with starting points for similar offending, and whether the approach taken by the sentencing judge in imposing uplifts for receiving and each individual charge of theft led to a sentence that offends against the totality principle. The court noted that the starting point for the lead charges of unlawful use of a motor vehicle was outside the available range, and that the appropriate starting point was 18 months' imprisonment. The court dismissed the grounds of appeal relating to the imposition of uplifts, finding that the approach taken by the sentencing judge accounted for totality and reflected the need for denunciation. The appeal was partially allowed, resulting in a sentence of two years and one month's imprisonment, which is not within range to consider home detention. The sentence of imprisonment of two years and four months was quashed and substituted with a sentence of imprisonment of two years and one month.

Orders