Papa v R

Case [2020] NZHC 80 4 February 2020

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-44

[2020] NZHC 80

BETWEEN
MIHARO JASON PAPA

Appellant

AND

THE QUEEN

Respondent

Hearing: 3 February 2020

Counsel:

M J Phelps for Appellant L M Marshall for Crown

Judgment:

4 February 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 5 December 2019, Mr Papa was sentenced by Judge Rea in the Napier District Court to one year four months’ imprisonment after he pleaded guilty to a charge of assault with intent to injure.1 The maximum penalty for this offence is three years. Mr Papa also pleaded guilty to assaulting a prison officer in the execution of her duty.2

[2] Mr Papa appeals the sentence on the ground that the Judge made an error of law in imposing a sentence of imprisonment as opposed to home detention, as a result of giving too much priority to the principle of deterrence without properly considering any of the other countervailing sentencing purposes.

1 The Queen v Brodie Stewart, Miharo Papa and Eddie Teunuku Paul [2019] NZDC 24535; Crimes Act 1961, s 193.
2 Summary Offences Act 1981, s 10.

PAPA v R [2020] NZHC 80 [4 February 2020]

[3] The Crown opposes the appeal, submitting that the judge did not err and that a sentence of imprisonment rather than home detention is appropriate in the circumstances of this case.

Factual background

[4] On 21 October 2017, Mr Stewart, Mr Papa, Mr Paul and two others were involved in an assault in Hawkes Bay Regional Prison. All five were affiliated with the Mongrel Mob and there had been rising tensions in the particular unit of the prison due to the presence of rival gang members.

[5] At 10:45 am prison officers noted that a particular cell in the unit, occupied by an inmate affiliated to Black Power, was closed and guarded by Mr Paul. They moved towards the cell to investigate but Mr Paul would not let them open the door to the cell. They were able to see through the window that Mr Papa, Mr Stewart and another were kicking the complainant, Mr Nathan, in the head while he was lying on the floor.

[6] After a passage of time, the group carrying out the assault moved away from the cell, after which the complainant came out of the cell, making further challenges to the group. This led the group to rush back towards the cell in response to the complainant’s challenges, while Corrections officers tried to prevent the group from entering back into the cell. In this altercation, Mr Papa rushed the Corrections officers to try to get back into the cell, causing one officer to suffer a broken finger. The complainant suffered multiple facial lacerations, significant bruising to his eyes, and concussion.

[7] Mr Stewart, Mr Paul and Mr Papa all pleaded guilty to assault with intent to injure, while Mr Papa also pleaded guilty to the additional charge of assaulting a prison officer…

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 Papa v R

Details

AGLC: Papa v R [2020] NZHC 80
Case: [2020] NZHC 80
Decision Date: 4 February 2020

CaseChat Overview and Summary

Miharo Jason Papa appeals against his sentence of imprisonment imposed by the Napier District Court for his involvement in a violent assault within Hawkes Bay Regional Prison. Mr Papa argues that the sentencing judge erred in imposing a sentence of imprisonment rather than home detention, by failing to properly consider the principles of rehabilitation and other countervailing sentencing purposes. The Crown opposes the appeal, asserting that the sentencing judge did not err and that a sentence of imprisonment was appropriate in the circumstances of this case.

The legal issues before the court were whether the sentencing judge erred in imposing a sentence of imprisonment instead of home detention, and whether the sentence imposed was an error of law. The court considered the principles of deterrence, denunciation, and rehabilitation under the Sentencing Act 2002, and noted that there is no presumption either for or against commutation of a sentence of imprisonment to home detention. The court also observed that the sentencing judge did not specifically refer to the rehabilitative potential of the offenders, but had acknowledged that for the offenders in this case, home detention would not be adequate to meet the seriousness of the conduct or to properly denounce it.

The court concluded that the sentencing judge correctly exercised his discretion to impose an appropriate sentence by balancing the benefits of home detention with the violent nature of the offence, previous convictions and the principles of denunciation and deterrence. The court further noted that given the appellant’s current incarceration, a sentence of home detention would have been inappropriate. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal against sentence is dismissed.

Orders