Nepia v R - [2015] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-003 [2015] NZHC 1226

BETWEEN
CEDRIC NEPIA

Appellant

AND

THE QUEEN Respondent

CRI 2015-443-016

BETWEEN CEDRIC NEPIA Appellant

ANDNEW ZEALAND POLICE Respondent

CRI 2015-443-017

BETWEEN CEDRIC NEPIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 20 and 22 April 2015

Counsel:

J C Hannam for Appellant
A W M Britton for Respondent

Judgment:

4 June 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 4 June 2015 at 11.00am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

NEPIA v THE QUEEN [2015] NZHC 1226 [4 June 2015]

CONTENTS

The appeals [1] The Hawera sentences [3] The New Plymouth sentence [8] The appeals against the Hawera sentences [10] Appeals involving sentence indications: introductory comments [12] The statutory sentence indication regime [19] The s 245 appeal right [25] Appeal against New Plymouth sentence: agreed facts [29] Appeal against New Plymouth sentence: analysis [35] Result [46]

The appeals

[1] There are three appeals before the Court. Mr Nepia challenges two separate sentences imposed in the District Court at Hawera (the Hawera sentences) on
7 October 2014,1 and one in the District Court at New Plymouth (the New Plymouth

sentence) on 19 December 2014.2

[2] The appeal against the New Plymouth sentence raises a point about the extent of a defendant’s right to appeal against sentence, following acceptance of a sentence indication.

The Hawera sentences

[3] On 5 February 2014, Mr Nepia was sentenced to three months’ community detention and 150 hours’ community work following conviction on a charge of demanding money with menaces. On 1 April 2014, he came before the District Court on a charge of breaching community work. A sentence of 75 hours’ community work was imposed, cumulative on the 150 hours that formed part of the original sentence. That left Mr Nepia to serve 225 hours of community work. The community detention order remained in place.

[4] On 7 October 2014, an application by a probation officer came before the

Court to cancel the sentence of community work. At that stage, only nine hours of

1 New Zealand Police v Nepia DC Hawera CRI-2014-021-696, 7 October 2014 (Judge Roberts).
2 R v Nepia DC New Plymouth CRI-2014-021-696, 19 December 2014 (Judge Bouchier) (Sentencing notes).

the sentence had been completed. Judge Roberts remitted the outstanding 216 hours and substituted a sentence of imprisonment of two and a half months.

[5] The Judge was also asked to remit outstanding fines. They totalled

$11,323.52. That was done. A sentence of imprisonment of three months was substituted, cumulative on the sentence imposed on the breach of community work.

[6] The Judge also dealt with a separate charge of driving while suspended that had been brought in Whanganui, on 30 August 2014. He considered that a sentence of imprisonment of three or four months might be appropriate to respond to that offending. After taking account of the totality principle, the Judge chose a term of six weeks’ imprisonment. That resulted…

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 Nepia v R

Details

AGLC: Nepia v R [2015] NZHC 1226
Case: [2015] NZHC 1226
Decision Date: 4 June 2015

CaseChat Overview and Summary

Cedric Nepia appealed against three sentences imposed by the District Court. The first two sentences were imposed in the Hawera District Court on 7 October 2014 and the third sentence was imposed in the New Plymouth District Court on 19 December 2014. The court was required to decide whether the sentences imposed were excessive or inappropriate. In particular, the court was required to determine whether the New Plymouth sentence, which was imposed following an accepted sentence indication, was excessive or inappropriate. The court found that the Hawera sentences were not excessive or inappropriate, save for the sentence of community detention which was quashed. The court also found that the New Plymouth sentence, while longer than the sentence indication, was not excessive or inappropriate. The New Plymouth sentence was based on a careful analysis of the offending and appropriate starting points were used. The sentence also included an appropriate credit for the guilty pleas entered. Nepia's appeal against the New Plymouth sentence was dismissed.

Orders