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.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. 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.

1. 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.

2. 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.

3. 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

1. 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.

1. 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.

2. 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 divide up the contributing force between the two offenders are not sustainable.  Both are properly held responsible for what was a savage assault having lasting effects.

3. The primary focus on the appeal is on the lack of any reduction beyond the unchallenged small discount for a late guilty plea.  We consider the appellant is on stronger ground in this aspect of the appeal.

4. The sentencing Court was provided with letters from Mr Rapana and his partner.  The letters, in the Court’s experience, display an unusual degree of insight, especially that written by Mr Rapana’s partner.  The letters were written because of the disappointment Mr Rapana and his partner felt at the pre‑sentence report.  Both had been interviewed and felt that nothing of what they had said had found its way into the report.

5. We are obliged to observe we consider their unhappiness to have a degree of validity.  The pre‑sentence report is highly critical of Mr Rapana.  It doubts his expressions of remorse, and statements that he had disassociated with the gang, and observes that like statements have been made on previous occasions.  That is of itself not to be criticised, but there are aspects of the facts that are inaccurately or misleadingly presented that cause us to doubt the level of objectivity.  We also observe that the report writer counters views apparently conveyed to her by Mr Rapana or his partner, without first seeking to provide the Court with any record of those views.  We mention this because we consider the Judge may well have been influenced in his decision to give no further credit by a report that in our view was less than satisfactory.[3]

   [3]As an example, the report speaks of this being Mr Rapana’s sixth offence of violence since 2005.  In fact there are none since 2005, which is eight years ago.  There were five offences of violence in a three month period in 2005, three of which attracted jail terms, and two of which attracted community work.  They are his only previous convictions for violence.

6. The factors we consider should, as a package, have received recognition include first the circumstances prior to the incident.  Mr Rapana claims, and his partner confirms, that he had been doing well in an effort to follow a new path.  He was in employment and had disassociated from his gang connections, after an earlier unsuccessful attempt to do that.  He had also been alcohol free for ten months.  However, a week prior to the incident his baby boy had died almost immediately after being born.  Mr Rapana reacted unfortunately to that by going on a week‑long drinking binge which culminated in his drunken presence at the scene, and his involvement in the assault.

7. Subsequent to his arrest Mr Rapana was on restrictive electronic bail conditions during which time he lived in constrained accommodation and cared for his partner’s children while she worked.  Mr Rapana expresses remorse for his actions and, reinforced by the thoughtful letter written by his partner, we accept it is genuine.  Mr Rapana recognises the impact his offending has had both on the victim and on his own family.  His partner had to give up her full-time employment to care for the children (she has since found part-time work).  Whilst in prison Mr Rapana has successfully undertaken a 10 week rehabilitation course which focuses on strategies to prevent reoffending.

8. We of course recognise there is another side to all this.  We accept Mr Rapana will have previously expressed commitment to change and he has not been offending free since 2005, although his offending record has tailed off noticeably.  We also recognise that credit for these matters is discretionary and we do not lightly interfere.  However, our view is that the material presented merited recognition and that some adjustment now is appropriate.

Conclusion

1. We quash the sentence of three years 10 months and in its place impose one of three years four months’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent