R v Nepe

[2008] NZCA 98

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) at [34] thus indicating a starting point of nine to 14 years.

[9] She noted the impact on the victims, including P now “being very mentally impaired” and that he “needs to remain in institutionalized care for the rest of his life”; at [11]. She continued: at [13]:

[13] The prisoner was suffering from diagnosed mental illness at the time of this offending.  He was not complying with his appropriate medication and was instead abusing drugs and alcohol heavily.  The impact of the assault upon the primary victim was life-threatening and his life quality has been significantly impaired as a result of his injuries.  Since the offending occurred, the prisoner has undergone significant rehabilitation largely because he is complying with his medication and more significantly is drug free.

[10]     The aggravating features identified by the Judge included Mr Nepe’s offending whilst subject to a community-based sentence.  He had a number of previous convictions.  The offending involved extensive violence including an attack to the vulnerable victim’s head.

[11]     The mitigating features included Mr Nepe’s mental health, supportive references and his rehabilitative improvement since offending.

[12]     That led the Judge to select a sentence of eight to nine years’ imprisonment including the aggravating features of the offending.  She continued “that he had for some period in the lead-up to the offending not taken his medication and instead had been abusing a cocktail of drugs”. 

[13]     The Judge then extensively considered what reduction from that starting point should be allowed for Mr Nepe’s mental illness, his rehabilitative progress and compliance with a lengthy period on bail subject to electronic monitoring (“EM bail”).

[14]     After referring to a number of authorities, some canvassed later in this judgment, the Judge summarised the various psychiatric reports before her, before going on to note authority to the effect that mental illness can reduce moral culpability and thus the appropriate sentence in certain cases:  R v Tuia CA312/02 27 November 2002.

[15]     Balancing all those factors the Judge reduced the sentence from her starting point to the six and a half years imposed.  The reduction was for Mr Nepe’s mental illness, though the Judge went on to say it might be regarded as “generous given the features of voluntary multiple drug abuse at the time of the offending”.  She made no express allowance for the EM bail factor.

Medical reports

[16]     Before considering counsel’s submissions, it is pertinent to review briefly the medical reports before the sentencing Judge. 

[17]     One of the earliest was from a Dr Majeed of Health Waikato Regional Forensic Psychiatric Service dated 22 May 2006, that is to say about a fortnight after the offending. After reviewing the appellant’s very difficult background and his lengthy drug abuse, the report noted Mr Nepe had received in-patient psychiatric treatment on earlier occasions, been diagnosed as suffering from schizo-affective disorder and been prescribed anti-psychotic medication.  The report noted Mr Nepe decided to discontinue taking the prescribed medication about two months before the offending and resorted to “cocktails of drugs like methamphetamine, speed and alcohol”.  At the time of the report Mr Nepe showed no signs of mental illness.

[18]     Dr Majeed issued a further report on 27 August 2007 to assist in sentencing.  By that date Mr Nepe’s régime of prescribed medication had been reinstated, his mental condition was in “full remission” and he was recorded as being “highly motivated to continue to receive help for his mental illness”.  The doctor found Mr Nepe “very different to the previous encounter that I had with him in May 2006”.

Submissions

[19]     For Mr Nepe, Mr Sutcliffe submitted the start point selected by the Judge was slightly higher than justifiable and argued that the discount allowed by the Judge for the appellant’s mental illness was insufficient given his rehabilitative efforts.  He submitted the Judge should have expressly allowed a further discount for Mr Nepe’s compliance with conditions imposed on his EM bail.  He founded those submissions on Tuia and the medical reports.  He submitted the Judge fell into error in giving too great an emphasis to Mr Nepe’s voluntary ingestion of drugs prior to the offending.  Overall, Mr Sutcliffe submitted the sentence imposed on the appellant was six to 10 months longer than justified.

[20]     Mr Downs, for the Crown, submitted the Judge’s selected starting point made clear her view that the appellant’s offending fell on the line between bands 2 and 3 in R v Fatu [2006] 2 NZLR 72 (CA). The Judge clearly took the appellant’s compliance with EM bail conditions into account and was right to place the emphasis she did on the appellant’s abandonment of his prescribed medication in favour of his own régime of illicit drugs and alcohol.

[21]     That said, Mr Downs accepted an offender’s psychiatric condition often presents difficult sentencing issues:  R v Wright [2001] 3 NZLR 22 at [22]. Caution, he submitted, is required for concluding an offender has diminished responsibility for offences by reason of mental illness: Taueki at [45], R v Clarke CA225/98 3 September 1989.

[22]     Mr Downs noted the appellant’s admission that EM bail had enabled him to attend rehabilitative programmes.  Judge Burnett’s treatment of his restricted bail conditions and his rehabilitative steps as one factor was correct:  R v Potoru HC AK CRI 2006-092-3877 and 12528, 14 September 2007, Rodney Hansen J at [17], [19].

Discussion and Decision

[23]     We consider the Judge’s selection of the starting point for sentencing Mr Nepe on the grievous bodily harm conviction was well within range.  This was a very serious attack persisted in over a period ‑ despite the victims’ attempts to escape ‑ and resulted in grave injuries to P which have robbed him of independence for the rest of his life.  The attack was repetitious punching and kicking to the head of a vulnerable victim, then leaving him unconscious overnight and not seeking help for him.  That displayed a number of the features regarded by this Court in Taueki as aggravating factors.

[24]     The Judge correctly noted the appellant knew of his earlier diagnosis of mental illness and had been complying with a régime of prescribed drugs.  That had successfully combated that illness.  He deliberately decided to discontinue taking the drugs prescribed, supplanting them with recourse to alcohol and illicit drugs.  The Judge was correct to place significant emphasis on the appellant’s decision in that regard.

[25]     The next question is accordingly whether the reduction by the Judge of some one and a half to two and a half years from the starting point was appropriate recognition of the appellant’s rehabilitative efforts.

[26]     In that regard, in our view it has not been demonstrated that a reduction of that order was inappropriate.  The appellant’s prescription drug régime was reinstated shortly after the offending occurred.  With, perhaps, some minor infractions, it remained in place for the 15 months which elapsed before sentencing.  In addition, during that period, it is clear from the references provided that after his arrest Mr Nepe had consistently attempted to address the consequences of his mental illness and achieved a certain measure of success in that respect.

[27]     In our view, a reduction in sentence of at least 23% for such a factor has not been shown to be inappropriate.

[28]     Accordingly, subject to what follows, we conclude the sentence imposed on the appellant has not been shown to be manifestly excessive and the appeal requires to be dismissed.

[29]     That observation relates to what allowance, against what would otherwise be the appropriate sentence, should occur for a person convicted after compliance with EM bail.

[30]     As counsel observed, it is correct that in R v Faisandier CA185/00 12 October 2000 at [28] this Court dealt with a sentence appeal involving pre-conviction home detention in the following way: 

[28] The issue of pre-conviction detention is more difficult.  If the period spent on home detention had been spent in remand custody the full period would be treated as time served and would equate with a sentence longer than that spent on remand depending upon the eventual release date.  On the other hand, it has not been the practice to make adjustments to prison sentences to take account of periods spent on bail on remand, even where bail conditions have been restrictive.  There is still no statutory basis for release on home detention during the remand period.  Should it become part of the remand system for prisoners no doubt the authorising legislation will provide for appropriate allowances in sentences imposed following conviction.  Without that, in this unique situation where the home detention was very much of a trial and at the request of the appellant, the sentencing Judge and this Court are left to do the best we can.  Like the Judge we are satisfied that some allowance is to be made having regard to the restrictive nature of the home detention and its length.  We are not persuaded, however, that it should be treated in this case as the equivalent of custody on remand as was done in R v Afu CA360/96, judgment 22 October 1996, where the offender, a youth, had been remanded in the custody of the Director General of Social Welfare in a residential home.  Nor are we disposed to attempt some arithmetical calculation including speculation on the likely release date of the offender.  We think the Judge was correct in arriving at a deduction in his formulation of the overall sentence without attempting some more sophisticated calculation.  Our concern is with the deduction actually arrived at by the Judge of six months in respect of the pre-conviction detention and any other mitigating factors.

[31]     However, Faisandier was decided prior to the coming into force of the Sentencing Act 2002 and, in particular, prior to the advent of home detention as a sentence in itself.  That notwithstanding, the question has on occasion been addressed since.  For instance, in R v Nichols and Piggott CA406 and 417/02, 16 June 2003 at [37], a case where Mr Nichols had worn an electronic wrist bracelet for some 14 months and had his capacity for movement correspondingly restricted, this Court observed:

While Mr Nichols faced significant restrictions he was on bail with conditions and not on remand in custody.  He was in the comfort of his own home, with his family and with the freedom to move around his farm day and night and around his township during the day.  In contrast the appellant in Faisandier was confined to her home for 24 hours a day for 10½ months.  Miss Faisandier’s situation was therefore quite different.  We do not consider the sentence of two and a half years should be disturbed, even given his bail conditions.

[32]     The approach in Faisandier was recently endorsed by the Permanent Court in taking the view that mitigating factors can properly include compliance with a restrictive bail régime:  R v Cristia [2008] NZCA [19], R v Tamou [2008] NZCA 88 at [18]. However, in Tamou, the Court cautioned against an arithmetical approach and observed that “what is required is an evaluative assessment of all the circumstances” and that, as in Nichols and Piggott, “there will be occasions when no allowance is required”: at [19].

[33]     Those authorities demonstrate that compliance with a restrictive bail régime, including EM bail, can be taken into account in mitigation of sentence.  Such is not automatic.  Whether a period spent on bail pending trial or until sentencing should reduce the sentence imposed would normally seem likely to involve consideration of whether the bail conditions can be seen as so restrictive as to amount to the rough equivalent of a remand in custody and, thus, the extent to which the person’s freedom of movement has been curtailed.

[34]     Where compliance with a strict bail régime, including EM bail, is urged as a mitigating factor, it will be preferable for sentencing Judges to deal with that submission expressly, whether or not any reduction in sentence results.  In Mr Nepe’s case, although the Judge made no express allowance for his compliance with his bail conditions, that topic was mentioned in an earlier part of the sentencing notes and we are unpersuaded that the omission from her concluding remarks leads to the view she overlooked that facet.  In our view no additional allowance for compliance with Mr Nepe’s bail conditions was justified.

Solicitors:

Crown Law Office, Wellington