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 described. While you were in custody, on 15 March 2022, you conspired with a friend to secure a compassionate bail release for one day, on grounds that were false. You claimed that a Mr Crayton, who died on 14 March 2022, was a father-figure to you when you were younger. You and the friend with whom you conspired were not known to Mr Crayton or his family.

[9]                 On 15 March 2022, you and your friend conspired to have your lawyer make an application to be released on compassionate bail to attend Mr Crayton’s memorial service. If released, you planned to spend the day together and visit associates, including gang associates. On 16 March, a hearing was held for the compassionate bail application in which you promoted these false claims. Your friend also falsely claimed to be an ex-wife of one of Mr Crayton’s sons, and known to the family for ten years.

[10]             When the police made enquiries, it was revealed that neither you nor your friend were known by Mr Crayton’s family. When your lawyer raised this with you, your friend reiterated that you were both known to the family. When this was also revealed to be false, you withdrew the application for compassionate bail.

Victim Impact Statement

[11]             The court has been provided with a Victim Impact Statement from the first complainant, who says that as a result of the offending, she has feelings of fear discussing your actions. As a result of your offending, she changed the place of her employment, so that she did not have to work in the same area, and she no longer works in Wellington. The taking of her bag made her concerned as she did not know

who had her personal details and information, which could have been ascertained from the contents of the bag.

First stage of sentencing process

[12]             As I have mentioned, the first stage of the sentencing process is to set a starting point for the offending, taking into account the aggravating and mitigating factors of the offending.

The starting point

[13]             Because you accepted the sentence indication I gave on 23 February 2023, it is not necessary for me to set out in detail the matters addressed by counsel when you appeared at the sentence indication hearing nor the detailed reasons for my decision in relation to the appropriate starting point. I therefore only briefly summarise those matters now.

[14]             At your sentence indication hearing, counsel were agreed that R v Mako was the guiding case for aggravated robbery offending, and that the aggravated robbery charge should be adopted as the lead charge.5

[15]             The Crown submitted that a starting point of between four and a half years’ and five years’ imprisonment was  required  for  the  aggravated  robbery  offence. Mr Knowsley, on your behalf, submitted that an appropriate starting point for the aggravated robbery offence would be between three years’ and three and a half years’ imprisonment.

[16]             I outlined several aggravating factors of the offending, including the fact it was essentially a threatening home invasion. Counsel drew my attention to several cases relevant to determining the appropriate starting point. I noted the cases I considered to be the most relevant to your case.6

5      R v Mako [2000] 2 NZLR 170 (CA). See also R v Drewett [2007] NZCA 48 at [15].

6      R v Drewett [NZCA] 2007 48; McCormack-Cameron v R HC Invercargill, CRI-2007-425-042,  5 February 2008; R v Reid [2017] NZCA 451; R v Edwards CA 67/00, 18 April 2000 at [17]–[18] and Allen v R [2022] NZHC 48.

[17]             I concluded that while unlawful entry is a seriously aggravating factor, your case appeared to me to fall within the lesser category of such offences. I did not consider that it warranted a starting point in the range of seven years’ imprisonment. Rather, key in the authorities is the view that where no violence has resulted, and the weapon is not inherently dangerous, the starting point should be lower.7

[18]             On balance, I considered that, as submitted by the Crown, your case is most similar to the cases of Reid and Edwards, where a defendant entered a private dwelling house alone with a weapon. I accepted the Crown’s submission that your offending may be considered comparable to Reid and less serious than Edwards. Nonetheless, I noted that the weapon in the present case was a metal pole rather than a knife and there was no actual violence.8

[19]             Ultimately, I considered that a starting point of four years is appropriate, as although no violence was used, and the weapon taken not inherently dangerous, the present case involved a threatening and premeditated home invasion and resulted in the taking of a not insignificant amount of cash.

[20]             In respect of the perverting justice charges, there were also several aggravating factors, including the degree of planning and premeditation involved, and the distressing impact on the Crayton family. However, I noted that ultimately the scheme was unsuccessful, and it was limited in scope, directed only to a single day of release from prison.

[21]             I agreed with counsel that an uplift of 12 months for the perverting justice charges was appropriate in the circumstances. This resulted in an overall starting point of five years imprisonment. I considered that this was in proportion to the gravity of the overall offending.

[22]             Finally, I agreed with counsel that a one month uplift to reflect your previous offending was appropriate.

7      See for example R v Kaponga HC Invercargill, CRI-2007-425-019, 2 July 2007.

8      I also found the cases of Allen, above n 6; and McCormack-Cameron, above n 6, to be of assistance.

[23]This resulted in a starting point of five years and one month’s imprisonment.

[24]             At your sentencing indication, I also indicated that a 25 per cent discount for your guilty plea was appropriate. Thus, the end sentence indicated at that time was three years and 10 months’ imprisonment.

Second stage of sentencing process

[25]             This brings me to the second stage of the sentencing process, where I consider and take into account your personal circumstances to reach a final sentence. This requires me to consider the additional material that has been provided for your sentencing, including a report from the Department of Corrections Probation Services, two reports from an alcohol and drug counsellor, and a cultural report.

Pre-sentence report

[26]             You have recently spoken to a probation officer who has provided the Court with a pre-sentence report.9 You explained to the probation officer that your parents separated when you were eight years old, and this was a difficult time for you. You experienced abuse at that time. You then lived with other family members, including your uncle who was a member of Black Power. You say you joined the gang at 12 years old. You report that you never attended secondary school due to unstable living situations. Despite this, you are a capable shearer and fencer, and your goal is to become a butcher.

[27]             You say your Māori heritage is important to you and you would like to learn more about it. You have five children, including a son who sadly died from heart problems when he was two years old. You continue to struggle to deal with this loss.

[28]             The report writer records your concerning history of drug abuse including using methamphetamine, cannabis, cocaine and hallucinogens. A substance abuse screening test places you in the high risk category. You also admit to using alcohol on a regular basis when in the community.

9      See Sentencing Act 2002, s 26.

[29]             The report writer notes that the primary factors that contributed to your offending are your addiction to methamphetamine, your lack of direction or focus in life and your struggle to deal with the trauma you experienced growing up.

[30]             The report writer records that you have a degree of insight into the impact of your offending on the victims and on your family. You told the report writer you were ashamed of the offending and that you struggle to recall the details of the aggravated robbery charge due to the amount of methamphetamine you had consumed prior to the offending although you were clear that you wanted to source money to buy drugs. As for the perversion of justice charge, you say you wanted to see the woman involved and so went along with the plan that you both devised.

[31]             You told the report writer that you know that if you do not address your drug addiction and have a comprehensive release programme the likelihood of relapsing into drug use is high. You are aware that your children are frightened of you when you are under the influence of drugs and you remember how much better life is when you are not using drugs. You want to be a better and more involved parent and understand that you will struggle to achieve this if you continue to use drugs.

Alcohol and drug reports

[32]             You spoke to an alcohol and drug counsellor in both 2021 and 2022. The second report provided an update to the first report and made recommendations for treatment.10 You described a traumatic and chaotic childhood to the counsellor, including being subjected to extreme violence by your father and witnessing your mother being abused by him. This was confirmed by your cousin, with whom the counsellor also spoke. You spent time in state care from a young age and told the counsellor you had been abused there. You have also spent considerable time in youth justice facilities and prison.

[33]             The counsellor records that you started using methamphetamine at an early age. Use was encouraged within your whānau and methamphetamine was readily

10     See Sentencing Act 2002, s 25(1)(a).

available. You regularly used cannabis and drank alcohol from primary school age. You regard methamphetamine as the most problematic substance for you.

[34]             You told the counsellor about the death of your son and that you used methamphetamine heavily at this time in response to your loss. The counsellor records that the loss of your son, together with your addiction issues and the abuse suffered in your childhood, have led to trauma and anxiety symptoms that continue to impact your life, for which you have not had any professional support or treatment.

[35]             You accepted the summary of facts in relation to the offending and recognise that when you are actively using methamphetamine your life is chaotic and your involvement with a gang meant you had easy access to firearms.

[36]             You have had a considerable time in prison on remand which has given you time to reflect on your life’s direction. You told the counsellor that you are at a point in your life where you feel ready to disconnect from your gang life and associated offending behaviours. You have ongoing support from your mother and cousin and a friend who is also an alcohol and drug counsellor. You understand that anger has been the main expression of the distress that you have experienced in your life and that other people have been the victim of that violence. You expressed remorse for your offending and interest in making significant changes in your life, doing anger management work and addressing your substance abuse. You are realistic that this will be emotionally challenging and likely a lengthy process. The counsellor considered that you have some good insight into the factors that underpin your history of substance abuse and offending patterns.

[37]             The counsellor recommends your attendance at a residential treatment programme, assessment by an addiction specialist psychiatrist, and grief counselling.

Section 27 report

[38]             The final report I will refer to is the s 27 report which was prepared in     April 2023 by a group of report writers led by Dr Jarrod Gilbert, to provide the court with information relating to your background and the manner in which it may have

related to your offending. Some of the information provided repeats what is said in the other reports, but the report sets out further detail about your background.

[39]             You whakapapa to Ngāti Kahungunu.11 You were raised in a whānau where gang involvement, substance abuse, and violence were normalised. You were subjected to violent abuse by your father, who also used violence against your siblings and your mother, and is said to be a founding member of the ‘Black Power Nomads’ gang. You experienced other abuse when sent to residential schools after being removed from the care of your parents. You have two younger brothers, as well as a half-brother and half-sister. You grew up alongside an extended whānau, including cousins. You described to the report-writer the way in which the death of two other siblings affected your whānau and you described your mother managing her grief with methamphetamine.

[40]             The report states that you first used methamphetamine aged 10 and were a patched member of the Black Power gang by the time you were aged 12. During this time, you were excluded from several schools, including in Australia. Your first son was born when you were 15 years old, but died when he was two years old. Following the death of your son, your use of methamphetamine and your criminal offending increased. You have been in and out of prison since you were 17, and at the same age were medicated for experiencing auditory hallucinations, although you no longer experience these. You described feeling safer in prison than outside of it.

[41]             You describe having strong whānau support from your grandmother and a cousin, who hope that you can make positive changes, and were spoken to for the purpose of corroborating your discussions with the report writer. You have developed an interest in learning te reo Māori and more about your culture. You have four children in addition to the one who has died but remain in contact with only one of them. You spoke to the report-writer of being tired of addiction, crime and gang life, and you hope to engage in a residential addiction treatment program, preferably with

11 The report writer refers to the Treaty settlement between Ngāti Kahungunu and the Crown in 2020 and the acknowledgement in the Deed of Settlement of Crown actions and failures that left Ngāti Kahungunu “virtually landless” and in a state of lasting disadvantage.

a tikanga or spiritual focus. The report writer described this as you having insight and being motivated to change your life.

[42]             The report writer describes the following factors in your background as relating to the commission of your offending:

(a)the normalisation of violence and crime during your childhood;

(b)the instability of your care during your childhood;

(c)the limited education you experienced;

(d)the abuse you experienced as a child in your own home and in residential schools;

(e)your gang membership, consequent institutionalisation, and the manner in which your childhood environment normalised this; and

(f)your drug use and addiction, particularly following the loss of your son.

[43]             I also acknowledge the letter read out by Mr Surridge today that you have written to express your remorse to the victims of the offending.

Appropriate discounts

[44]             I now turn to consider the appropriate discounts in relation to you Mr Kapene. As we have heard from counsel today there has been a recent decision in the case of Berkland where the Supreme Court clarified how s 27 reports (and background factors generally) are to be approached in the sentencing exercise.12

[45]             The Supreme Court concluded that the required degree of connection between background factors and their mitigatory effect on sentencing is a “causative

12 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509. While the context of Berkland was commercial methamphetamine dealing, the comments made by the Supreme Court are very likely to be of general application.

contribution” approach.13 The Court held that circumstances of deprivation can have a powerful explanatory force in revealing how an offender has come to offend and in guiding the court’s assessment in sentencing.14 This is of particular importance in the context where offending can be linked to intergenerational depravation.15 The discount range for these factors is wide and largely fact dependent.16

[46]             I acknowledge the comments made by Mr Burston relating the appropriate discount to the scenario that Mr Berkland experienced in that case but I reiterate the fact that the senior courts have been clear that the appropriate discount will always be a question of assessing the facts in a particular circumstance. Mr Surridge today sought a discount on the basis of your background. He said that an appropriate discount would be between 20 and 25 per cent, noting that level would not be unusual. He accepts, however, your addiction could be accounted for either under that heading, or on its own justify a further discount of five to ten per cent. And in the written submissions I have read there is a submission that because you were deprived of the opportunity to attend a residential addiction programme pending sentencing through no fault of your own that your willingness to participate in rehabilitative services should also be recognised. Mr Surridge also refers to the remorse you have expressed to the report writers and in the letter provided today.

[47]             Mr Burston accepts that a discount for personal circumstances would be appropriate, although his submission was that ten to 15 per cent was the level appropriate in the circumstances and as I have mentioned relying particularly on the analysis in the Berkland case.

[48]             I accept that in the present case a discount is justified to account for your personal circumstances and background. I would include within this the factors relating to addiction, the prospects of rehabilitation as well as the remorse that you have expressed. I am satisfied that the detailed material provided to the Court, particularly in the s 27 report, goes some way to explaining your offending, to the

13 At [109].

14 At [120].

15 At [125].

16     The Court of Appeal has acknowledged that a discount of 30 per cent is at the upper end of the spectrum, see King v R [2020] NZCA 446 at [28].

standard of causative connection described by the Supreme Court. On that basis, I adopt a discount of 20 per cent for your personal circumstances and background factors as indicated in the material provided to the Court.

[49]             Mr Surridge also sought a discount on the basis of youth, given that you were 25 years old at the time of the alleged offending. Mr Burston considered that any discount for youth was a stretch in this case, but to the extent it was available, it could be incorporated into the discount relating to your background.

[50]             Mr Surridge accepted that the age of 25 years is at the upper end of the range at which youth can be taken into account, but said that you were nevertheless entitled to a further discount for youth.

[51]             Mr Surridge did not refer me to any particular case law relating to youth discounts. I have considered the Court of Appeal’s recent discussion of scientific research regarding the neurological differences between young people and adults, and what effect those differences should have in sentencing.17 The Court of Appeal considered that it was no longer correct to say that “youth can carry little weight when balanced against the public interest in denunciation and accountability”.18

[52]             In a previous case, which I mentioned to counsel, R v Nepia, a discount was awarded for ‘relative youth’ to a defendant aged 25 at the time of the offending.19 The offending in that case was more serious than your offending, involving a “one punch” manslaughter.20 The sentencing Judge considered that a discount was appropriate to reflect that “people are more impulsive when they are younger, so often have a greater capacity for rehabilitation”.21 This is a similar justification used by the Court of Appeal recently in the case of Dickey v R, which recognised that younger offenders have

17 See Dickey v R [2023] NZCA 2; and Frost v R [2023] NZCA 294 at [99]–[109]. The Court in Dickey acknowledged that there is no outer limit to the discount for youth, with discounts of 10– 30 per cent being common: at [174]; citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [98]. These cases concerned young people and emerging adults charged with murder and the particular considerations applicable given ss 102–104 of the Sentencing Act 2002. However, I consider the Court’s discussion of the relevant scientific evidence is generally applicable.

18 At [177]; compare R v Rapira [2003] 3 NZLR 794 (CA) at [120].

19     R v Nepia [2019] NZHC 1932 at [36].

20 At [2].

21 At [36].

reduced culpability owing to their neurological immaturity and their greater prospects for rehabilitation.22

[53]             However, I do not consider that a further discount for youth would be appropriate in your case. Firstly, while there is no upper limit for discounts based on youth, it is not disputed that the circumstances in which a 25 year old can benefit from such a discount are limited. This is indicated by the rarity of such discounts being awarded to a 25 year old defendant. The only such discount I have been able to find is the manslaughter case that I have just mentioned. I consider that my conclusion sits comfortably with the research discussed by the Court of Appeal indicating that adolescent neurological development may continue up until the age of 25.

[54]             Second, in my view a discount for youth for a defendant aged 25 should be linked to a conclusion, as the Court of Appeal said, that a defendant “may have travelled a lesser distance to adulthood” than other persons of the same age.23 I am not satisfied that I can reach such a conclusion in your case, given the nature of your offending, which appears to have been a calculated attempt to secure money for methamphetamine, accompanied by the threat of violence. Finally, I consider that any discount for youth, were it available, to be adequately accounted for in the discount I have already indicated for your personal factors.

Conclusion

[55]I therefore calculate your sentence as follows:

(a)first, a starting point of four years on the lead offence of aggravated robbery;

(b)second, an uplift for the perverting justice charges of 12 months;

(c)third, an uplift of one month for your previous offending;

(d)fourth, a 25 per cent discount for guilty pleas; and

22     Dickey, above n 17, at [208(a)].

23     Frost, above n 17, at [107].

(e)fifth, a 20 per cent for personal factors, including addiction, rehabilitative prospects and remorse.

Result

[56]Mr Kapene, please stand.

[57]I sentence you to two years and ten months imprisonment.

[58]Please stand down.

McQueen J

Solicitors:
Crown Solicitor, Wellington for Crown.