Nepata v Police
[2024] NZHC 2309
•16 August 2024
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 raft of 18 theft/shoplifting charges between October 2022 and August 2023. These include multiple instances of theft from supermarkets, building supply stores and other retail outlets, of goods ranging from food to electronic items. On one occasion, staff at a hardware engineering store managed to recover a plasma cutter valued at $795 when they followed Mr Nepata to retrieve the item.
[9] Mr Nepata was also charged with a breach of a community sentence which he had failed to complete.
District Court decision
[10] In assessing the starting point, the Judge considered first the two charges of unlawful use of a motor vehicle. Acknowledging there is no guideline judgment for this type of offending, she relied on comparator cases to assess that the starting point lay between 18 to 24 months for each charge. Based on this, the Judge determined the starting point for each as 12 months; together making a total of 24 months.
[11] The Judge added a combined total of six months for the receiving charge and theft of metal from the construction site. For each of the four charges of theft (between
$500 and $1,000), there was an uplift of two months, totalling eight months. Each
charge of theft (under $500) received an uplift of two weeks.7 The Judge calculated that there were 14 of these charges, making a total uplift in this regard of 28 weeks.
[12] Mr Nepata had outstanding fines totalling $6,376.13. The Judge remitted these fines and in lieu uplifted the sentence by one month. Alongside this, one more month was added for the breach of community sentence. According to the Judge, this led to a cumulative start point of 46 and a half months, which, to the benefit of Mr Nepata, she rounded down to 46 months and equated to three years and eight months. In fact, this conversion was an arithmetical error in that 46 months equates to three years and ten months.
[13] The conversion error was of no moment because the Judge correctly then applied a total discount of 37.5 per cent to the starting point figure of 46 months. The discounts comprised:
(a)Guilty plea: 25 per cent.
(b)Drug and gambling addictions: 10 per cent.
(c)Remorse: 2.5 per cent.
[14] This resulted in an end sentence of just short of 29 months’ imprisonment. The Judge stated that this equated to two years and four months rather than two years and five months. This particular arithmetical conversion error benefited Mr Nepata by one month.
Principles on appeal
[15] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9 An appellate Court will not intervene where the sentence is
7 One of these charges appeared to include a second charge of theft from a construction site.
8 Criminal Procedure Act 2011, s 250(2).
9 Criminal Procedure Act 2011, s 250(3).
within the range that can properly be justified by accepted sentencing principles.10 Instead, the sentence must be manifestly excessive to warrant intervention.11 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.12
Consideration
[16] The first ground of appeal is that the starting point of 24 months was excessive and not commensurate with starting points for similar offending. Mr Poole, for Mr Nepata, submits that there were no aggravating features of the offending and no relevant specific history justifying this starting point. He contends that the appropriate starting point for these two charges is no more than 16 months by reference to comparator cases.
[17] Those cases include starting points of 18 months for two of the same charges;13 a starting point of 24 months for a charge of unlawful taking of a motor vehicle, together with a charge of theft (over $1,000);14 and two cases where starting points of 12 months were set for single charges of unlawful use of a motor vehicle.15
[18] Ms Vreeburg for the respondent contends the starting point on the lead offending was well within range. She too has regard to other ‘like’ cases where a starting point of 24 months’ imprisonment for two charges of unlawfully taking a motor vehicle was imposed in circumstances where the offending occurred in short succession and the vehicles did not suffer any damage.16 She also challenges the usefulness of the cases relied on by Mr Nepata and emphasises instances where a single “impulsive” taking warranted a start point of 12 months.
[19] In R v Tepania, cited by Ms Vreeburg, the defence did not contest that a 24 month start point was available in circumstances where the defendant twice broke
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36], and Te Aho v R [2013] NZCA 47 at [30].
11 Ripia v R [2011] NZCA 101at [15].
12 At [15].
13 Epere v Police [2019] NZHC 336.
14 Affleck v R [2015] NZHC 1741.
15 O’Sullivan v Police [2015] NZHC 2032, and Shufflebotham v Police [2015] NZHC 3114.
16 R v Tepania [2020] NZHC 3279.
into and took cars which were later used by a friend to commit aggravated robberies.17 Though the defendant denied any knowledge of the use to which the stolen cars were put, the offending was planned rather than spontaneous, and was committed without regard to the effect on the owners of the cars. The Judge took a starting point of two years.
[20] I have had the benefit of more extensive submissions and comparative cases on appeal than were available to the sentencing Judge. Given that Mr Nepata pleaded guilty to unlawful use rather than taking of a motor vehicle, and there is nothing in the summary of facts pertaining to it being planned rather than spontaneous offending, I agree the starting point was outside the available range. Whether approached globally or cumulatively, I consider the appropriate starting point is 18 months’ imprisonment.
[21] The second and third grounds of appeal are interrelated. The clearest manner of illustrating Mr Nepata’s challenge is by way of the table below:
Sentencing Judge’s analysis Mr Nepata’s contentions Start point of 24 months for x2 unlawful use of vehicle Start point of 16 months for x2 unlawful use of vehicle Uplift of 6 months for x1 receiving over
$1,000
Uplift of 4 months for x1 receiving over
$1,000
Uplift of 2 months each for x4 theft of
$500-$1,000 (8 months)
Concurrent sentence of 4 months for x4 thefts $500-$1,000 Uplift of 2 weeks each for x14 theft under $500 (28 weeks or 6.5 months) Cumulative sentences of 2 weeks for x14 thefts under $500 (28 weeks or 6.5
months)
Uplift of 1 month for breach of
community work
Cumulative sentence of 1 month for
breach of community work
Uplift of 1 month for remittance of fines Cumulative sentence of 1 month for remittance of fines Starting point of 46 months (rounded) Starting point of 32.5 months Discount of 37.5 per cent Discount of 37.5 per cent End sentence of 29 months (in error
recorded as two years and four months)
End sentence of 20 months
[22] Mr Poole submits that the approach taken by the Judge in uplifting the sentence for the charge of receiving and each individual charge of theft, led to a sentence which
17 R v Tepania [2020] NZHC 3279.
offends against the totality principle. He suggests that the charge of theft from a building site was also taken account of when the Judge uplifted the sentence on each charge of theft under $500, thereby double counting. He also argues that an individual six-month uplift for the charge of receiving was outside the range.
[23] I assess the proper approach is to stand back and look at the end sentence, to see whether it is within the available range given the circumstances of Mr Nepata’s offending and personal factors. It is well understood that the way a sentence is constructed is of little relevance. It is important to avoid a mechanistic or formulaic approach. How the sentence is arrived at is less important than a proper assessment of the totality of the offending.18
[24] In making my assessment, I have also had regard to the deductions for Mr Nepata’s personal circumstances which, are generous and off-set to a degree the uplifts which overall are at the sterner end. For example, I point to the full guilty plea discount despite strong prosecution evidence in the form of CCTV footage; and the modest discount for remorse despite the fact it was late and absent from the pre-sentence report. I pause to note that commonly even genuine expressions of remorse attract little weight in the face of recidivist offending. Mr Nepata’s self-reported drug and gambling addiction also resulted in a significant discount. I acknowledge that Mr Nepata’s circumstances are difficult given that he has lived much of his life in Australia and has little support in New Zealand, so bearing that in mind those particular deductions appear to be appropriate. Materially, there was no uplift for previous convictions. Nor for committing some offending whilst on bail. Those two factors may well have justified uplifts of two months.
[25] This type of repetitive dishonesty offending requires a “composite evaluation” of many factors and circumstances. I am satisfied that the Judge did have regard to totality in respect of this offending. Given that Mr Nepata is a serial offender I do not accept that the dishonesty offending is accurately described as opportunistic. He has made a serious nuisance of himself at approximately 16 retail premises and the items taken have a combined value in the range of $7,000.
18 R v Xie [2007] 2 NZLR 240 (CA).
[26] Ms Vreeburg refers to the decision of this Court in Bimler v New Zealand Police19 in support of the uplift of eight months for “serial shoplifting”. In Bimler this Court considered an uplift of “at least” 18 months appropriate for “serial shoplifting” comprising 16 charges with a combined value of just over $15,000. That offending was also motivated by drug and gambling addiction. However, the Judge noted that his recalibration of the District Court overall starting point required an adjustment to ensure that the total period of imprisonment was not wholly out of proportion to the gravity of the overall offending.
[27] In Mr Nepata’s case, I consider the uplift for the shoplifting offences should remain untouched. Further, I find no error in the approach to the additional offending. It accounts for totality and reflects the clear need for denunciation. I therefore dismiss these grounds of the appeal.
Outcome
[28] The appeal succeeds in so far as the start point for the lead offences is concerned. The result is an end sentence of two years and one month (rounded) calculated as follows:
Starting point for charges of unlawful use of vehicles (x2) 18 months Uplift for receiving 6 months
Uplift for theft between $500-$1000 (x4) 8 months
Uplift for theft under $500 (x14) 6.5 months
Uplift for breach of community sentence breach 1 month
Uplift in lieu of remitted fines 1 month
Available discounts (as per the sentencing notes) 37.5 per cent
End sentence 25.3 months
[29] I do not regard this as tinkering. A three-month reduction across a sentence of 28 months is sufficiently material.
19 Bimler v New Zealand Police [2023] NZHC 2661.
[30] Accordingly, I quash the sentence of imprisonment of two years and four months and substitute a sentence of imprisonment of two years and one month. This sentence is not within range to consider home detention.
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Walker J
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