Rapana v The Queen - [2014] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND

CA809/2013
[2014] NZCA 231

BETWEEN	SHANNON RAPANA Appellant
AND	THE QUEEN Respondent

Hearing:	22 May 2014
Court:	White, Ronald Young and Simon France JJ
Counsel:	R G Glover for Appellant J M Jelas for Respondent
Judgment:	9 June 2014 at 10.00 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of three years 10 months’ imprisonment is quashed and in its place a sentence of three years four months’ imprisonment is imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Rapana appeals against a sentence of three years 10 months’ imprisonment imposed on a single charge of injuring with intent to cause grievous bodily harm.[1] The grounds of appeal are that the starting point of four years was too high and that insufficient recognition was given by way of discount for the circumstances in which the offending arose and the appellant’s efforts to change his way of life.

Facts

[1]R v Rapana DC Christchurch CRI-2012‑009‑6572, 6 November 2013.

Mr Rapana and a co‑defendant were at a party. Mr Rapana’s co‑offender, Lindsay Davey, had become overtly aggressive as the night progressed. This culminated in Mr Davey rushing at the victim with a knife and stabbing him. The victim must have put his hand up in defence as the primary stabbing injury was to a tendon in his hand.
Mr Davey then physically assaulted the victim, at which point the appellant Mr Rapana joined in. The assault caused the victim to fall to the ground where he was kicked and punched by both men. Mr Rapana was sentenced on the basis that he did not know the victim had been stabbed at the time he joined in the assault.
The victim impact statement disclosed a significant list of injuries consequent upon the assault of which Mr Rapana was a part. These injuries have necessitated surgery, including plastic surgery, and continue to have ongoing effects.

Sentencing

Mr Rapana’s co‑defendant had earlier been sentenced by a different Judge who had taken an overall starting point of five years.[2] Judge Garland here recognised Mr Rapana’s lesser culpability, given he was not associated with the use of the knife, and so took a four year starting point. There was then a three month uplift for past violent offending, and a five month discount for a guilty plea entered a day before trial. The end sentence was accordingly three years 10 months’ imprisonment.

Discussion

[2]R v Davey DC Christchurch CRI-2012-009-8726, 16 January 2013.

The first issue taken on appeal is with the four year starting point. Mr Glover emphasised that the amount of force to the head inflicted by Mr Rapana was unclear and the assault was not as prolonged as the sentence suggested.
We do not agree. This was an unprovoked assault on a man who was repeatedly kicked by two people having first been beaten to the ground. The injuries caused were significant and efforts to…

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 The Queen

Details

AGLC: Rapana v The Queen [2014] NZCA 231
Case: [2014] NZCA 231
Decision Date: 9 June 2014 at 10.00 am

CaseChat Overview and Summary

In the case of Rapana v The Queen, the appellant, Shannon Rapana, appealed against his sentence of three years and ten months’ imprisonment for injuring with intent to cause grievous bodily harm. The appeal was heard in the Court of Appeal of New Zealand by White, Ronald Young, and Simon France JJ. The central legal issues in this case were whether the starting point of four years for the sentence was too high and if sufficient discount was applied for the circumstances of the offending and the appellant's efforts to change his way of life.

Rapana and his co-defendant, Lindsay Davey, were at a party where Davey became aggressive, culminating in stabbing the victim. Rapana then joined in the assault, which caused significant injuries to the victim. Rapana was sentenced based on the premise that he did not know the victim had been stabbed at the time he joined the assault. The sentencing court took a four-year starting point, considering Rapana's lesser culpability compared to Davey, who had used the knife. The sentence was further adjusted for a guilty plea and past violent offending, resulting in a final sentence of three years and ten months’ imprisonment.

The Court of Appeal found that the four-year starting point was appropriate given the severity of the assault, but agreed that insufficient discount was applied for the circumstances and Rapana's efforts to change his life. The court noted that the pre-sentence report was less than satisfactory, potentially influencing the original sentencing decision. The court recognised the appellant's genuine remorse, his efforts to disassociate from gang life, and his participation in a rehabilitation course while in prison. These factors warranted a reduction in the sentence. Therefore, the appeal was allowed, and the sentence was reduced to three years and four months’ imprisonment.

Orders