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R v Nepia

R v Nepia

Case [2022] NZHC 198 15 February 2022

Rehabilitative Prospects

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-004405

[2022] NZHC 198

THE QUEEN

v

LEVI NEPIA

Hearing: 15 February 2022

Appearances:

L Nunweek for Crown

E Gresson on instructions from R Chambers for Defendant

Sentence:

15 February 2022

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:
Meredith Connell, Auckland R Chambers, Auckland

R v NEPIA [2022] NZHC 198 [15 February 2022]

Introduction

[1] Ms Nepia, you appear for sentence today having entered guilty pleas to the following charges:

(a)aggravated burglary (x 1). This is an offence pursuant to s 232(1)(b) of the Crimes Act 1961. The maximum penalty for such offending is 14 years’ imprisonment.

(b)using a document for pecuniary advantage (x 1). This is an offence pursuant to s 228(1)(b) of the Crimes Act. The maximum penalty is seven years’ imprisonment.

[2] Your sentencing engages the “three strikes” regime under the Sentencing Act 2002. You received a first strike warning on 12 September 2013 following a conviction for aggravated robbery. You received a second strike warning on 20 September 2016 following a conviction for aggravated burglary. The present aggravated burglary is your third strike offence. This means that I must sentence you to the maximum sentence for aggravated burglary which, as I have noted, is 14 years’ imprisonment. The Sentencing Act requires me to impose this sentence. In addition, I must order that that sentence be served without parole, unless I am satisfied that it would be manifestly unjust to make that order.1

Relevant facts

[3]All five victims lived together in a residential property in Onehunga.

[4] On 23 August 2019, you and your co-offenders, a Ms Manuel and an unknown male, entered the victims’ house through the front door. The male offender uplifted a knife from the kitchen.

[5] At about 5.00 am, the first victim awoke when his bedroom door was swung open and the male offender burst into the room. The second victim, who was sharing the bedroom, awoke to find the male offender tapping on his face with the knife. The

1 Sentencing Act 2002, s 86D(2) and (3).

male offender shouted and swore at the victims. He focused his attention on the second victim, asking him “Are you that guy? Are you that guy?” The second victim was directed to lie on his bed and look at the wall. He was told that if he did not do so, he would be stabbed. The male offender used the handle of the knife to hit the second victim multiple times on the right side of his head.

[6] You and your co-offenders then began rummaging through the two victims’ drawers and wardrobes. One of you located a suitcase on top of a wardrobe and you began filling it with various items of property belonging to the victims, including shoes, clothing, suitcases, bags, phones and a wallet. While the victims’ property was being taken, the male offender directed the victims to face the wall otherwise he would…

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 Nepia

Details

AGLC: R v Nepia [2022] NZHC 198
Case: [2022] NZHC 198
Decision Date: 15 February 2022

CaseChat Overview and Summary

The case of R v Nepia was heard in the High Court of New Zealand, Auckland Registry, on February 15, 2022. The defendant, Levi Nepia, had entered guilty pleas for charges of aggravated burglary and using a document for pecuniary advantage. The court was required to determine whether it would be manifestly unjust to impose the maximum sentence without parole for the defendant's third strike offence.

The court considered the nature of the offence, the defendant's personal circumstances, and the impact on the victims. The court found that the defendant had participated in a premeditated home invasion, where a weapon was used, and the victims were threatened and injured. The defendant also played a role in stealing a credit card, which was used the following day. The court found that the defendant's dysfunctional upbringing, exposure to violence, gangs, drugs, and substance abuse, contributed to their offending behaviour.

The court determined that it would be manifestly unjust to impose a sentence of 14 years' imprisonment without parole on the defendant. The court took into account the defendant's guilty plea, demonstrated insight into their offending, and their willingness to undergo rehabilitative treatment. The court also considered the disparity between the sentence that would have been imposed but for the three strikes regime and the maximum penalty the court must impose.

The court sentenced the defendant to 14 years' imprisonment for the charge of aggravated burglary and six months' imprisonment for the charge of using a document for pecuniary advantage, to be served concurrently. The court also imposed a minimum period of imprisonment of four years, considering it necessary to hold the defendant accountable for their offending and to deter others from committing the same offence.

The final orders of the court were that the defendant, Levi Nepia, would serve a sentence of 14 years' imprisonment for aggravated burglary, and six months' imprisonment for using a document for pecuniary advantage, both to be served concurrently. The court also imposed a minimum period of imprisonment of four years. The defendant was not required to serve their sentence without parole, as the court found it would be manifestly unjust to do so.

Orders