Rapana v Police - [2012] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-10 [2012] NZHC 950

EBONY SHEREE JESSIE RAPANA

v

NEW ZEALAND POLICE

Hearing: 7 May 2012

Counsel: J Webber for Crown
I Miller for Appellant

Judgment: 8 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3:30pm on the 8th May 2012.

JUDGMENT OF WILLIAMS J

[1] Ebony Rapana appeals against sentence imposed in the District Court in Nelson on 2 April 2012. She faced three charges, two counts of assault with a blunt instrument, and one count of breach of intensive supervision. The learned Judge imposed an overall prison sentence of 19 months being six months on the first assault count, four months on the breach of intensive supervision, and nine months on the second assault count.

[2] Ms Rapana argues that the sentence was manifestly excessive and that the

Judge should have imposed an appropriate term of home detention.

EBONY SHEREE JESSIE RAPANA V NEW ZEALAND POLICE HC NEL CRI-2012-442-10 [8 May 2012]

Facts

[3] On 9 February 2010, Ms Rapana had an argument with her brother and, while getting out of a vehicle, she grabbed a bolt and struck him over the head with it. The blow caused a three centimetre cut to her brother’s scalp requiring anaesthetic, staples and a tetanus injection.

[4] The appellant was sentenced to intensive supervision on that matter but had to be resentenced on 27 June 2011 for breach of its conditions. A further sentence of intensive supervision was imposed, despite a pre-sentence report recommendation of imprisonment. On 5 January 2012, Ms Rapana breached that sentence again. I understand that this was her fifth breach overall.

[5] Ms Rapana also committed another assault while serving her sentence of intensive supervision. That occurred on 25 November 2011. According to the police summary, Ms Rapana hit the victim on the left ear with a pair of scissors. She then hit the victim on the side of the head with a beer bottle, causing the victim to collapse. She then kicked the victim about 10 times on the body. At the conclusion of the assault she declared “Remember me, Ebony Rapana, tell everyone.”

[6] The victim received small cuts to her ear and face, bruising to her head, arms and the back of her left leg, and scratched on her right leg.

[7] There is a dispute about this version of events, Ms Rapana saying there were no kicks but accepting there were some punches while the victim was defenceless. These factual disputes have not been resolved.

[8] The standard pre-sentence report for Ms Rapana showed little sympathy for her situation. Community detention and home detention were both discussed. The report provided:

However, Ms Rapana’s risk of reoffending, her risk to the community and her lack of compliance with community-based sentences would indicate that a community-based sentence is not appropriate at this time. Therefore, the court may wish to hold Ms Rapana accountable for…

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 Rapana v Police

Details

AGLC: Rapana v Police [2012] NZHC 950
Case: [2012] NZHC 950
Decision Date: 8 May 2012

CaseChat Overview and Summary

Ebony Sheree Jessie Rapana appeals against the sentence imposed on her in the District Court in Nelson on 2 April 2012. She faced three charges, two counts of assault with a blunt instrument, and one count of breach of intensive supervision. The learned Judge imposed an overall prison sentence of 19 months being six months on the first assault count, four months on the breach of intensive supervision, and nine months on the second assault count. Ms Rapana argues that the sentence was manifestly excessive and that the Judge should have imposed an appropriate term of home detention. The court was required to decide whether the sentence was manifestly excessive and whether the Judge should have imposed home detention instead of imprisonment.

The court found that the sentence was within range and not manifestly excessive. The court also found that the Judge did not err in failing to consider home detention. The court considered that the sentence was at the low end of the spectrum and consistent with the banding in the guideline case. The court also found that the Judge had engaged in the evaluative exercise required and that the decision about whether home detention will meet the objectives of deterrence and denunciation is a matter of judgment for the sentencing Judge to determine. The court found that the Judge had considered the appellant's risk of reoffending, her risk to the community and her lack of compliance with community-based sentences.

The appeal is dismissed accordingly.

Orders