R v Kapene - [2023] NZHC 1854

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-085-1184

CRI-2022-085-965 [2023] NZHC 1854

THE KING

v

WIPUHARA KAPENE

Hearing: 17 July 2023

Appearances:

G J Burston for Crown

P H Surridge for Defendant

Judgment:

17 July 2023

SENTENCING REMARKS OF McQUEEN J

[1] I acknowledge the presence of your grandmother and your mother and other whānau here to support you today.

[2] Mr Kapene, you appear today for sentencing having pleaded guilty to the following charges:

(a)aggravated robbery;1

(b)conspiring to pervert the course of justice;2 and

1 Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.
2 Section 116; maximum penalty seven years’ imprisonment.

R v KAPENE [2023] NZHC 1854 [17 July 2023]

(c)wilfully attempting to pervert the course of justice.3

[3]In explaining the sentence that I intend to impose on you I will:

(a)First outline the facts of the offending and the information I have from one of the victims of the offending.

(b)Second, I will refer to the starting point for the offending and as you accepted the sentence indication I gave on 23 February 2023, that discussion will be brief.4

(c)Finally, I will address all the circumstances that are personal to you and arrive at the final sentence.

The offending

[4] The facts of the offending are set out in the summary of facts that you have pleaded guilty to. Because sentencing is a public function which is required to be undertaken in open Court, it is important that I set these out now.

Aggravated robbery

[5] On 13 September 2021, a support worker (the first complainant) was conducting a visit with one of the occupants at a Newtown address in Wellington. The remaining complainants, of which there are four, are tenants currently residing at that address, and they were mostly present in their bedrooms, with one in the common room meeting with the first complainant. Two of the complainants heard you banging on the front door.

[6] Shortly after this, you broke the lock on the front door, and forcefully entered the property, armed with a metal pole approximately 40 centimetres in length. You shouted, “where is he, where is he” and “where is Paul, where is he” and that he “owed money”. At one point you also yelled out “mongrel mob”.

3 Crimes Act 1961, s 117(e); maximum penalty 7 years’ imprisonment.
4 R v Kapene HC Wellington CRI-2022-085-1184, 23 February 2023 (Sentencing Indication).

[7] You searched three of the rooms, and kicked one of the bedroom doors off its hinges, due to it being locked at the time. While inside the address, you grabbed the first complainant’s handbag that contained $2,600 in cash, as well as bank cards and other personal items, before leaving the property, entering a waiting vehicle and driving off. You were then arrested a short time later in Kingston, Wellington.

Perversion of justice

[8] On 13 September 2021 you were remanded in custody in relation to the offending already…

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 Kapene

Details

AGLC: R v Kapene [2023] NZHC 1854
Case: [2023] NZHC 1854
Decision Date: 17 July 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant, Wipuhara Kapene, appeared for sentencing following a guilty plea to charges of aggravated robbery, conspiring to pervert the course of justice, and attempting to pervert the course of justice. The legal issues before the court were to determine the starting point for sentencing, considering the aggravating and mitigating factors of the offending, and to apply any appropriate discounts for the defendant's personal circumstances and background. The court outlined the facts of the offending, which included a threatening home invasion with a weapon and the defendant's subsequent attempts to secure a compassionate bail release based on false claims. The court considered various reports and submissions from both counsel to arrive at an appropriate sentence. The starting point for the aggravated robbery charge was determined to be four years' imprisonment, with additional uplifts for the perverting justice charges and previous offending. The court applied a 25% discount for the defendant's guilty plea and a 20% discount for personal factors, including addiction, rehabilitative prospects, and remorse. The final sentence imposed was two years and ten months' imprisonment.

The final orders of the court were that Wipuhara Kapene be sentenced to two years and ten months' imprisonment for the charges of aggravated robbery, conspiring to pervert the course of justice, and attempting to pervert the course of justice.

Orders