R v Nepe

Case [2008] NZCA 98 5 May 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA680/07
[2008] NZCA 98
THE QUEEN
v
MARK REUBEN NEPE
Hearing:15 April 2008

Court:Hammond, Williams and MacKenzie JJ
Counsel:T Sutcliffe for Appellant

M D Downs for Crown

Judgment:5 May 2008 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
___________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
INTRODUCTION
[1]       On 30 August 2007, following his being convicted by a District Court jury on one count of causing a victim grievous bodily harm with intent to cause such harm and a second count of male assaults female, the appellant, Mr Nepe, was sentenced to six and a half years’ imprisonment on the former count and a concurrent term of eight months’ imprisonment on the latter.
[2]       He now appeals to this Court on the grounds that the sentence on the grievous bodily harm charge was manifestly excessive.
Facts
[3]       On the evening of 3 May 2006 Mr Nepe left a party and went, uninvited, to a neighbouring flat in which the principal victim, P, lived. Ms A was visiting at the time. Mr Nepe was aggressive towards Ms A, told her she had no right to be in the flat, kissed her despite her refusal and, when P remonstrated with him, punched and pushed him repeatedly.
[4]       He then left but returned a few minutes later, ordering Ms A from the property and threatening to stab her with a pen. He stabbed her in the leg and again ordered her from the flat. Both victims left for their own safety but were pursued and abused by the appellant in the street. Ms A then left, went to a local Police station and was driven home. But P returned to the flat where Mr Nepe again threatened him and then kicked him and punched him about the head and face. He left P unconscious at the foot of the stairs overnight. Mr Nepe spent the night in the victim’s flat.
[5]       The victim, on being discovered next morning by a flatmate, was rushed to Auckland Hospital where he was found to have suffered a subdural haemorrhage. His jaw and both cheek bones were fractured. P’s victim impact statement said that, as a result of his injuries, he can no longer live an independent life and is in the full-time care of Community Mental Health Services.
[6]       Ms A was, unsurprisingly, shaken and scared by the appellant’s actions.
[7]       The appellant’s defence at trial was that it was not he, but another who was responsible for what occurred and that he, the appellant, was the person who discovered P at the foot of the stairs on the following morning and obtained assistance.
Remarks on Sentencing
[8]       Judge Burnett –the trial Judge – first reviewed what she described as the “bizarre” trial evidence. She then recorded the Crown’s submissions that Mr Nepe’s actions brought him within band 3 of this Court’s decision in R v Taueki [2005] 3 NZLR 372 (CA)…

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 Nepe

Details

AGLC: R v Nepe [2008] NZCA 98
Case: [2008] NZCA 98
Decision Date: 5 May 2008

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of R v Nepe concerned an appeal against sentence by the appellant, Mark Reuben Nepe, who had been convicted of causing grievous bodily harm with intent and assaulting a female. Nepe was sentenced to six and a half years for the grievous bodily harm charge and an additional eight months for the assault charge, both sentences to run concurrently. The appeal was based on the grounds that the sentence for the grievous bodily harm charge was manifestly excessive. The appellant's attack on the victims was characterized by a high degree of violence, leaving one of the victims with life-threatening injuries and requiring lifelong institutional care.

The legal issues the Court had to decide included whether the starting point for sentencing was correctly selected, whether the reduction in sentence for the appellant's mental illness and rehabilitative efforts was appropriate, and whether any further reduction should have been made for compliance with electronic monitoring bail. The Court considered the nature and severity of the offences, the appellant's mental health history, and the extent of his compliance with bail conditions and rehabilitation efforts.

The Court concluded that the starting point for sentencing was appropriate, given the severity of the attack and the life-threatening injuries inflicted on the victim. The Court found that the appellant's decision to discontinue his prescribed medication in favor of illicit drugs and alcohol was rightly emphasized as an aggravating factor. Regarding the reduction for the appellant's mental illness and rehabilitative efforts, the Court found that the reduction made by the trial judge was not inappropriate. The Court also considered whether additional mitigation should be given for compliance with electronic monitoring bail and concluded that no further reduction was warranted. The appeal was dismissed, and the sentence upheld.

Orders