Nepia v R
[2015] NZHC 1226
•4 June 2015
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 RespondentJudgment:
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 in an effective term of imprisonment of seven months. Judge Roberts also disqualified Mr Nepia from holding a driver
licence for 12 months.3
[7] Although the Judge substituted a sentence of imprisonment for the breach of community work, (inadvertently) he did not discharge the existing sentence of community detention. Imprisonment and community detention is not a permitted combination of sentences.4
The New Plymouth sentence
[8] Separately, in the District Court at New Plymouth, Mr Nepia had been charged with demanding property with intent to steal, common assault and assault with intent to injure.5 He sought a sentence indication.6
[9] On 19 December 2014, a hearing took place for that purpose. Judge
Bouchier indicated a likely sentence of two years and five months’ imprisonment.7
Later that day, Mr Nepia accepted the indication and entered pleas of guilty to the three charges. The Judge imposed an effective sentence of two years and five
3 New Zealand Police v Nepia DC Hawera CRI-2014-021-696, 7 October 2014, at paras [8], [9]
and [10].
4 Sentencing Act 2002, s 19(6). See also, para [10] below.
5 Relevant facts are set out at paras [29]–[33] below.
6 Criminal Procedure Act 2011, ss 60–65.
7 R v Nepia DC New Plymouth CRI-2014-021-696, 19 December 2014 (Judge Bouchier) (sentence indication) at para [20].
months’ imprisonment,8 for reasons that are set out in her sentencing indication. That sentence gave a credit for the guilty pleas.
The appeals against the Hawera sentences
[10] The sentence imposed by Judge Bouchier was to run concurrently with the Hawera sentences. Contrary to what Mr Hannam, for Mr Nepia, had understood the position to be at the time the appeal was filed, the New Plymouth sentence was not expressed as being cumulative on those imposed in Hawera. The sentences are deemed to run concurrently.9
[11] It has been eight months since the Hawera sentences were imposed. In effect, they have now been served. There is no utility in proceeding with the Hawera appeals, save to the extent that the community detention sentence will need to be quashed.10
Appeals involving sentence indications: introductory comments
[12] For Mr Nepia to succeed in his endeavour to reduce the term of imprisonment he is facing, he must persuade me that the New Plymouth sentence is manifestly excessive.11
[13] A right to appeal against sentence exists even when a sentence indication has been given and accepted. Sections 245 and 252 of the Criminal Procedure Act 2011 (the Act) provide:
245 Right of appeal against sentence not affected by sentence indication
The fact that a defendant has received a sentence indication does not affect the right of the defendant or the prosecutor to appeal against sentence.
8 R v Nepia DC New Plymouth CRI-2014-021-696, 19 December 2014 (Judge Bouchier) (sentencing notes) at paras [2] and [3].
9 Parole Act 2002, s 76.
10 See para [7] above.
11 Criminal Procedure Act 2011, s 250(2). See also Tutakangahau v R [2014] NZCA 279, [2014] 3
NZLR 482.
252 Defendant may not withdraw guilty plea after sentence imposed on appeal
Except with the leave of the appeal court if that court considers it is in the interests of justice, a defendant who has received a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence than that indicated is imposed on appeal.
[14] In a discussion paper issued prior to the statutory embodiment of a sentence indications procedure, the Ministry of Justice (the Ministry) and the Law Commission (the Commission) identified advantages and disadvantages of a suggested regime.12
[15] The discussion paper was prepared against the background of an informal procedure (known as status hearings) that had developed in the District Court, whereby Judges would give indications of likely sentence in order to encourage early pleas of guilty.13 Concerns had been expressed about the nature of that practice. By reference to those concerns, the Ministry and Law Commission set out what they perceived to be the disadvantages of a sentence indication regime. Such a regime might: 14
(a) be viewed as an form of objectionable plea bargaining;
(b)put inappropriate pressure on defendants to plead guilty, on the basis that explicit explanation by a Judge of the significant credit available for an early guilty plea could be seen as coercive in nature;15
(c) give rise to community concerns about the potential for Judges to
offer “excessively lenient sentences” to encourage guilty pleas;
12 Ministry of Justice and Law Commission, Discussion Document: Development of a formalised sentence indication scheme (May 2009).
13 Generally, see R v Gemmell [2000] 1 NZLR 695 (CA) at paras [13]–[17].
14 Ministry of Justice and Law Commission, Discussion Document: Development of a formalised sentence indication scheme (May 2009) at para 15.
15 The potential for inappropriate pressure being put on a defendant to plead guilty was recognised in the Supreme Court’s decision in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC) at paras [48] and [75], in the context of the less flexible procedures for identifying the amount of credit to be given set out in the Court of Appeal’s decision in that case: R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
(d)involve the possibility of indications being given on the basis of incomplete information, and with insufficient regard to concerns of victims;
(e) increase the likelihood that later sentences imposed on co-offenders might be inconsistent; and
(f) cause difficulties if a prosecutor subsequently appealed against the sentence imposed.
[16] The discussion paper identified the following advantages of a sentence indication regime:
(a) the fact that early guilty pleas would provide for more prompt resolution of criminal prosecutions;
(b)reduction in the trauma to victims, who are spared the ordeal of participating in a trial;
(c) reduction in the anxiety of a defendant by reducing the time between charge and disposition; and
(d) costs savings, as a result of a likely reduction in the number of trials.
[17] Subject to the development of “robust procedures” to address the specific concerns raised in that paper, the Ministry and the Commission believed “that the advantages of a sentence indication process clearly outweigh the disadvantages”.16
[18] The Ministry and the Commission also considered the circumstances in which appeals might be brought after sentence indications had been given.17 They took the view that “the sentence indication should not be [appealable] but the rights
of the prosecution and the defence to appeal against sentence, if one is imposed,
16 Ministry of Justice and Law Commission, Discussion Document: Development of a formalised sentence indication scheme (May 2009) at para 16.
17 For examples of the circumstances in which appeals were permitted in cases under the informal regime, see R v Gemmell [2000] 1 NZLR 695 (CA) and Sipa v R [2006] NZSC 52.
should be retained”.18 This wording appears to have been taken from an earlier report of the Australian Law Reform Commission.19
The statutory sentence indication regime
[19] Sections 60–65 of the Act introduced a formal sentence indication regime.
The term “sentence indication” is defined by s 60:
60 Meaning of sentence indication
A sentence indication is a statement by the court that, if the defendant pleads guilty to the offence alleged in the charge, or any other specified offence, at that time, the court would or would not (as the case may be) be likely to impose on the defendant—
(a) a sentence of a particular type or types; or
(b) a sentence of a particular type or types within a specified range (for example, periods of time or monetary amounts); or
(c) a sentence of a particular type or types and of a particular quantum
(for example, periods of time or monetary amounts).
[20] A sentence indication may be requested only by a defendant.20 The concerns expressed by the Ministry and the Commission about the possibility of such indications being given on the basis of incomplete information are addressed by s 61. The Judge giving the indication must be provided with an agreed summary of facts, information about any previous convictions, and copies of any relevant victim impact statements. It is open to the Court to decline to give a sentence indication if the information provided is insufficient for that task to be completed appropriately.21
No appeal lies against a decision to give (or not to give) a sentence indication.22
[21] A sentence indication hearing is held in open Court. Members of the public may attend. A record is maintained by the Court. However, to avoid the possibility that a request for a sentence indication (or the indication itself) might be published in
a manner that could affect a defendant’s fair trial rights, publication restrictions have
18 Ministry of Justice and Law Commission, Discussion Document: Development of a formalised sentence indication scheme (May 2009), at 9.
19 Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders
(Report 103, April 2006) at para 15.88.
20 Criminal Procedure Act 2011, s 61(1).
21 Ibid, s 61(2).
22 Ibid, s 62(5).
been put into place. They are supported by the possibility of criminal sanctions.23
The fact that a request has been made for a sentence indication is not admissible in evidence in any proceeding.24
[22] The Court must specify the time by which the sentence indication can be accepted. If no date were specified, it must be accepted within five working days of the date on which it is given.25
[23] Parliament also considered what should happen if there were changed circumstances between the time at which a sentence indication was given and when the sentence was to be imposed. An allied problem was where a Judge other than the one who gave the indication was required to sentence but did not agree with the indication received by the defendant. A different Judge might, for example, take a different view about the seriousness of the offending or the particular defendant’s level of culpability.
[24] Sections 115 and 116 of the Act address those problems. Section 116(2) and (3) makes it clear that the indication is binding on the Judge who gave it, unless further material information becomes available after the indication. The indication does not bind any other Judge. The Court “must” allow a defendant to withdraw a plea of guilty entered in consequence of a sentence indication where the Judge who gave the indication advises that he or she proposes to give a more severe sentence
based on new information, or if another Judge declines to follow the indication.26
The s 245 appeal right27
[25] The appeal right conferred by s 245 of the Act falls to be considered against that general background. The statutory regime is designed to encourage guilty pleas at the earliest possible time, while providing protections against the types of concern expressed by the Ministry and the Commission.28 Although it might seem
incongruous that a defendant who has accepted a sentence indication should have a
23 Ibid, ss 62 and 63.
24 Ibid, s 65.
25 Ibid, s 64.
26 Ibid, s 115(2).
27 Section 245 of the Criminal Procedure Act 2011 is set out at para [13] above.
28 See paras [14] and [15] above.
right to appeal the sentence imposed in consequence of it, there are a variety of circumstances that could justify that course, including:
(a) Cases where the Judge giving the sentence indication has specified a range within which the sentence might fall, depending upon information before the Court on sentence. There is no reason in principle why a defendant who argues for a sentence at the lower end of the range should not be able to challenge, on appeal, a sentence at
the highest end.29
(b)Cases in which the Court leaves open the possibility of further information being put before it on sentence, particularly in relation to mitigating factors relevant to the offender. This circumstance may occur more frequently than others because no pre-sentence report is available at a sentence indication. There is no reason why a defendant should not be entitled to appeal against a sentence which is said to have given inadequate weight to a personal mitigating factor, thereby resulting in the sentence being manifestly excessive or
inappropriate.30
(c) Cases in which it is contended that the defendant was inadequately advised before accepting the indication. A defendant should not be prevented from challenging a sentence if a genuine claim of counsel error can be made out.
[26] In addition, the existence of an appeal right maintains the ability of a prosecutor to appeal against a sentence that he or she regards as manifestly
inadequate or inappropriate.31
29 For example, an indication of the type to which s 60(b) and (c) of the Criminal Procedure Act
2011 refers.
30 An appeal that is based on an “inappropriate” sentence would include a challenge to a sentence of imprisonment in circumstances where it is contended that home detention ought to have been imposed.
31 A prosecutor’s right to appeal against sentence is conferred by s 246 of the Criminal Procedure Act 2011. Section 245 of the Act expressly refers to a prosecutor’s appeal, as well as one brought by a defendant.
[27] The protection against abuse of the appeal right is the ability of an appellate Court to impose a more severe sentence (if considered appropriate) without an obligation to allow a defendant to withdraw his or her guilty plea. If a defendant appeals against a sentence, he or she takes the risk that a more severe sentence might be imposed.32
[28] As a result of that analysis, I am satisfied that Mr Nepia has a right to appeal against the New Plymouth sentence, even though it was imposed following a sentence indication which he accepted.
Appeal against New Plymouth sentence: agreed facts
[29] On 12 September 2014, Mr Nepia was working with the victim, Mr van Roij, at a fundraising event at the Manaia primary school. When the event finished, Mr van Roij drove Mr Nepia to Hawera township. Along the way, one of the vehicle’s tyres went flat. Mr Nepia offered to pay to repair the tyre so long as he was repaid $50 the following week.
[30] Eventually Mr van Roij drove Mr Nepia back to his home address in Manaia. Shortly after they arrived, an argument started. Mr Nepia asked to stay at Mr van Roij’s house for a couple of days. The house was rented in the name of Mr van Roij’s flatmate. He refused permission for Mr Nepia to stay. Mr Nepia was told to leave by Mr van Roij’s flatmate. Mr Nepia responded by beginning to remove items from the house and to put them into Mr van Roij’s car. Previously, Mr Nepia had tried to persuade Mr van Roij to rent a house in his name in which Mr Nepia could live. Mr Nepia did not enjoy a good history with rental agencies.
[31] Mr Nepia became angry and assaulted Mr van Roij’s flatmate. Repeated punches were thrown. The flatmate was hit with closed fists to the head and face. When Mr van Roij tried to stop the fight, Mr Nepia turned his attention to him. Mr van Roij was repeatedly punched to the face, and also kicked in the torso.
[32] On 18 September 2014, Mr van Roij was walking alone on a street in Manaia. Mr Nepia drove by in a Honda motor vehicle. He told Mr van Roij to get into his vehicle. Mr van Roij refused. Mr Nepia persisted. As Mr van Roij declined to co-operate Mr Nepia said: “I should just assault you right here on the street”. Mr van Roij believed he would be assaulted. He got into the vehicle.
[33] Mr Nepia told Mr van Roij that he now owed him $300 and had until the end of the day to pay or he would take his vehicle off him. Mr van Roij was told to telephone his mother to get the money. Mr Nepia took Mr van Roij to an address in Manaia but Mr van Roij was able to contact Police before anything further happened. When the Police arrived Mr Nepia was arrested.
[34] Those events led to the charges of demanding property with intent to steal, common assault and assault with intent to injure on which Mr Nepia was sentenced.
Appeal against New Plymouth sentence: analysis
[35] Mr Hannam submitted that the end sentence of two years and five months’ imprisonment imposed by Judge Bouchier is manifestly excessive or inappropriate. Mr Hannam referred me to a number of authorities from which he submitted that a sentence of two years imprisonment or less should have been imposed and, that being the case, the sentence ought to have been commuted to home detention.
[36] Judge Bouchier did not comment extensively when sentencing Mr Nepia. Rather, she applied the careful analysis that she undertook as part of the sentence indication process. In explaining how the sentence would be constructed, she said:33
[20] My view of the start point for the lead charge would be two years, nine months’ imprisonment plus three months for the previous convictions. Then minus a discount of 20 percent which would be seven months, and that would take it to two years and five months and that is the indication I give.
[21] The two other charges would receive sentences of imprisonment, for the assault with intent to injure would receive the same, and the 196 would receive a lesser concurrent sentence.
[37] When the Judge pronounced sentence, she said (in full):34
[1] I then will record pleas of guilty to the three charges before the Court, that is the demanding with menaces, the s 193 assault and the s 196 assault.
[2] I note that on counsel’s advice Mr Nepia has accepted the sentence indication which was given earlier in the day and accordingly on the two charges which are CRN numbers 0768 and 0769 there are periods of imprisonment imposed according to the sentence indication of two years and five months for the reasons given earlier.
[3] On 0767 there is a sentence of six months’ imprisonment which is
concurrent with those terms already imposed.
[38] Mr Hannam submitted that an appropriate starting point for the lead charge of demanding property with intent to steal was no more than one year’s imprisonment. That submission was made notwithstanding the fact that the maximum penalty for that offence is seven years’ imprisonment.35
[39] Mr Hannam submitted that the offending that formed the basis of the charge of demanding property with menaces should be characterised as short-lived; lacking in planning and premeditation; unaccompanied by actual or threatened violence; and he pointed out that it related to property of little monetary, and no sentimental, value; and did not occur at the victim’s residential address. He also pointed to the absence of gang connections and the fact that this was a case where the defendant acted alone. However, those considerations amount to no more than an absence of additional aggravating factors.
[40] Mr Hannam accepted that the charges of assault and assault with intent to injure required an uplift to the starting point for the lead sentence. The assault charge carried a maximum term of imprisonment of one year, while the assault with intent to injure charge has a maximum penalty of three years’ imprisonment.36
Mr Hannam submitted that neither offence would warrant a sentence of more than
one year, and an uplift of no more than nine months’ imprisonment was appropriate.
34 R v Nepia DC New Plymouth CRI-2014-021-696 ,19 December 2014 (sentencing notes).
35 The offence is set out in s 239(2) of the Crimes Act 1961. The authorities on which Mr Hannam relied were Opetaia v R [2011] NZCA 621, Field v Police HC Wellington CRI-2009-483-40, 23
October 2009 (Dobson J), Vujcich v Police [2013] NZHC 1747 (Lang J), R v Lloyd HC Auckland CRI-2009-090-12003, 9 December 2010 (Andrews J) and R v James HC Christchurch CRI-2007-009-6663, 26 March 2009 (French J).
36 Crimes Act 1961, ss 196 and 193, respectively.
[41] Mr Britton, for the Crown, submitted that the structure of the sentence and the starting point used by the sentencing Judge were consistent with R v Chapman.37
In that case, Fogarty J sentenced a defendant following the entry of pleas of guilty to three counts of demanding with menaces, one count of assault and one count of assault with intent to injure. In that case, the Judge took a starting point of three years’ imprisonment for offending that he described as “one sustained period of criminal behaviour”.38
[42] In my view, having regard to the authorities to which counsel have referred me, the starting point taken by Judge Bouchier was within range. The starting point of two years and nine months’ imprisonment is not out of kilter with the cases to which I have been referred and, in my view, properly marks the nature and extent of
the assaults carried out by Mr Nepia39 and his demands for property by menaces.
Included among the aggravating factors relating to the offending were the injuries suffered by both victims and the impact of the offending on them, which involved physical and emotional harm, as well as some financial detriment.
[43] The Judge added three months’ imprisonment to reflect prior offending as a personal aggravating factor. Mr Nepia is not a stranger to the criminal justice system. His first interaction with it was in 1993. Indeed, he had appeared in the Youth Court on one occasion beforehand. The offending since 1993 includes aggravated robbery, assault on Police, common assault, male assaults female and threatening to do grievous bodily harm. In addition, the present offending was committed while Mr Nepia was subject to a sentence. The uplift was justified.
[44] A credit of 20% was given for a guilty plea. The Judge observed that this was consistent with the position taken by the Crown on sentence.40
[45] Having considered the range of sentences imposed in the authorities to which
I have been referred, and the varying factual situations in each, I am not persuaded
37 R v Chapman [2013] NZHC 2646 at paras [6] and [7].
38 Ibid, at para [6].
39 See para [31] above.
40 R v Nepia DC New Plymouth CRI-2014-021-696, 19 December 2014 at para [15].
that there is anything in them that led the Judge to impose a manifestly excessive or inappropriate sentence.
Result
[46] For those reasons:
(a) The appeals in relation to the Hawera sentences are allowed to the extent that the sentence of community detention is set aside. Otherwise, those sentences stand.
(b) The appeal against the New Plymouth sentence is dismissed.
P R Heath J
Delivered at 11.00am on 4 June 2015
Solicitors:
Crown Solicitor, New Plymouth Crown Law, Wellington Counsel:
J C Hannam, New Plymouth
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