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R v Nepia

R v Nepia

Case [2019] NZHC 1932 9 August 2019

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-088-3647

[2019] NZHC 1932

THE QUEEN

v

MICHAEL DAVID NEPIA

Hearing: 9 August 2019

Appearances:

M B Smith for the Crown

A B Fairley and A M Harvey for the Defendant

Judgment:

9 August 2019

SENTENCE OF GAULT J

Solicitors:
Mr M B Smith, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Mr A B Fairley and Mr A M Harvey, Thomson Wilson, Whangarei

R v NEPIA [2019] NZHC 1932 [9 August 2019]

[1] Mr Nepia has pleaded guilty to one charge of manslaughter following a sentence indication I gave on 13 June 2019.1

[2] As I said at the indication, this offending is an example of tragically common “one punch” manslaughter.

[3] The victim, Mr Townsend, was sitting outside Savoeun’s Café at 119 Maunu Road. He was homeless and was known to frequent the block of shops there. He had two dogs that were off leash. Mr Nepia was out walking his own two dogs, on leads, and his route took him past Mr Townsend. As he walked towards where Mr Townsend was sitting, their respective dogs began to growl at each other, and began to fight.

[4] Mr Townsend kicked Mr Nepia’s dogs in an effort to get them away from his own dogs, telling Mr Nepia to “get your dogs”. Mr Nepia became furious with the victim and punched him in the face with significant force, causing Mr Townsend to fall straight back, hitting his head on the pavement. He had no chance to brace himself.

[5] Mr Nepia collected his dogs and walked away. A nearby person called an ambulance, and the victim was taken to hospital, where he later tragically died.

[6] I indicated a sentence with a starting point of three years and six months’ imprisonment, one month’s discount for time spent on EM bail, and a 25 per cent discount for a guilty plea, bringing the indicated sentence to two years and seven months’ imprisonment.

[7] I do not propose to re-state how I came to that indication. I will annex the indication to my sentencing notes and it will form part of this sentencing.

[8] At the indication, as is customary, I did not conclude whether any mitigating factors personal to Mr Nepia justify a further discount to the sentence. I will do so now.

1 R v Nepia [2019] NZHC 1332.

[9] Mr Fairley’s submission, both at the indication and now, is that home detention is the appropriate end sentence. I was unable to indicate a sentence of home detention, because I came to a custodial sentence above the two-year level where home detention may be substituted. But Mr Fairley submits there are several mitigating features that warrant further discount to Mr Nepia’s sentence:

(a)The cultural report by Ms Turner, Mr Fairley submits, makes a very strong link between those factors outlined in s 27 and the offending and the type…

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 [2019] NZHC 1932
Case: [2019] NZHC 1932
Decision Date: 9 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Michael David Nepia was charged with manslaughter following an incident where he punched Mr. Townsend, resulting in the latter's death. The court was required to decide on the appropriate sentence for Nepia, considering the nature of the offence and mitigating factors presented. The legal issues included determining the starting point for the sentence, considering discounts for Nepia's background, remorse, and time spent on electronic monitoring bail, and deciding whether home detention would be a suitable sentence. The court considered the cultural report, pre-sentence report, victim impact statement, and letters in support of Nepia. The reasoning of the court was that Nepia's background, remorse, and prospects for rehabilitation warranted a significant discount to the sentence. The court imposed a sentence of eight months' home detention on Nepia, taking into account the need to hold him accountable, denounce his conduct, and deter others from acting similarly violently. This decision was based on the least restrictive outcome appropriate in the circumstances, considering Nepia's personal, family, whānau, community, and cultural background, as well as any outcomes of restorative justice processes that had occurred.

Orders