R v Kalepo - [2021] NZHC 578

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-085-1135 [2021] NZHC 578

THE QUEEN

v

PAMELA SAILI KALEPO

Appearances:
S C Carter and for Crown

I M Antunovic for Defendant

Sentencing:

19 March 2021

SENTENCING OF CLARK J

[1] Ms Kalepo you may remain seated until I sentence you. You appear for sentence today having been found guilty by a jury of one charge of kidnapping1 and one charge of wounding with intent to cause grievous bodily harm.2 The kidnapping charge and the wounding charge each carry a maximum penalty of 14 years’ imprisonment.

[2]There is a third charge — a charge of assault, to which you pleaded guilty.3

1      Crimes Act 1961, s 209; maximum penalty14 years’ imprisonment.
2      Section 188(1), maximum penalty 14 years’ imprisonment.
3      Section 196, maximum penalty one years’ imprisonment.

R v KALEPO [2021] NZHC 578 [19 March 2021]

[3] Through your counsel, you understand that a sentence of imprisonment is inevitable. The main issue for me today is the length of that sentence particularly in light of the sentence of your co-offender Mr Malua-Bentley.

[4] You are unfamiliar with the sentencing process so I will explain it to you. First I will describe the offending. I need to do that in open court. I will then fix a starting point for your sentence. Once a starting point is adopted I will consider your personal circumstances and assess whether the starting point needs to be adjusted — up, or down.

Background facts

[5] The offending began on the night of 13 March 2019. There was a plan to abduct the victim who apparently owed a debt to your husband, Mr Malua-Bentley. Four people were involved in the initial abduction. You were not involved at that stage. On the night she was abducted and was being driven around with a chain around her neck you were sent a text message saying they “got Red”. Red was the name by which the victim was known to you. You replied “Nice” and asked where to go.

[6] The victim was driven to an address in Wellington where she was subjected to threats and physical assaults by multiple others. You did not join the group until the victim was taken by Mr Malua-Bentley and others to the south coast. When you arrived you punched the victim in the face with your closed fist. You said in your interview you were mad at her because you believed she had burgled your home. You also said Mr Malua-Bentley had brought the victim to the beach so that you could confront her. That incident was the basis of the assault charge to which you pleaded guilty.

[7] Mr Malua-Bentley led the victim into the water by the chain around her neck. He held her under the water. She attempted to…

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 R v Kalepo

Details

AGLC: R v Kalepo [2021] NZHC 578
Case: [2021] NZHC 578
Decision Date: 19 March 2021

CaseChat Overview and Summary

Pamela Kalepo was convicted of kidnapping and wounding with intent to cause grievous bodily harm, and pleaded guilty to assault. The court's primary task was to determine the appropriate length of her imprisonment, particularly in relation to the sentence of her co-offender, Mr Malua-Bentley. The court also considered various mitigating and aggravating factors in setting a starting point for sentencing and in adjusting that starting point based on Ms Kalepo's personal circumstances.

In determining the starting point for sentencing, the court took into account the premeditated and planned nature of the assault, the victim's vulnerability during the incident, and the fact that she was held without medical treatment for several days. The court also considered Ms Kalepo's assistance to the victim during her captivity, such as providing clothing, food, and drink, and helping her to shower and change clothes. The court found that Ms Kalepo's culpability was significantly less than Mr Malua-Bentley's, who was the driving force behind the offending. Based on these factors, the court set a starting point of five and a half years' imprisonment for Ms Kalepo's offending.

In assessing Ms Kalepo's personal circumstances, the court considered her background, including her upbringing in a strongly faith-based Samoan family, her tragic loss of her oldest sibling in a fatal house fire, and her romantic relationship with Mr Malua-Bentley. The court found that Ms Kalepo had been suborned by Mr Malua-Bentley and that she had not suggested her actions excused her offending. The court also considered the strong support base within her family and her expressions of remorse and contrition through letters of apology to the victim. Based on these factors, the court reduced the starting point by 10 per cent for remorse, 10 per cent for her previous non-convictions, and an additional 15 per cent for her low risk of reoffending and strong rehabilitative potential.

The court sentenced Ms Kalepo to three years and seven months' imprisonment for the charges of kidnapping and wounding with intent, to be served concurrently with a sentence of three months' imprisonment for assault. This sentence reflects the court's consideration of both the aggravating and mitigating factors in the case, as well as Ms Kalepo's personal circumstances and potential for rehabilitation.

Orders