Repia-Nicholas v Police
[2024] NZHC 311
•26 February 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-150
[2024] NZHC 311
DENNIS REPIA-NICHOLAS v
NEW ZEALAND POLICE
Hearing: 13 February 2024 Appearances:
M Douglas for the Appellant
T T T S Taane for the Respondent
Judgment:
26 February 2024
JUDGMENT OF POWELL J
[Appeal against refusal to grant leave to apply for home detention]
This judgment was delivered by me on 26 February 2024 at 4.30 pm
…………………..
Registrar/Deputy Registrar
DENNIS REPIA-NICHOLAS v NEW ZEALAND POLICE [2024] NZHC 311 [26 February 2024]
[1] On 24 November 2023, the appellant Dennis Repia-Nicholas was sentenced to 21 months’ imprisonment.1 Mr Repia-Nicholas had pleaded guilty to one charge each of presenting a firearm,2 unlawful possession of a firearm,3 assaulting a person in a family relationship,4 receiving property over $10005 and disqualified driving being a subsequent or third offence.6
[2] Mr Repia-Nicholas appeals his sentence on the sole ground that the sentencing judge, Judge W Lawson, erred by refusing to grant leave to apply for home detention to a rehabilitative facility should a suitable place become available in the course of his sentence. No issue is otherwise taken with the Judge’s starting point, uplifts or discounts.
[3] Although no suitable address was available when Mr Repia-Nicholas was sentenced, by the time the appeal was heard a bed had become available in a Grace Foundation facility in Auckland and Mr Repia-Nicholas also remained on the waitlist for an assessment at Odyssey House.
[4] To succeed on an appeal against sentence, Mr Repia-Nicholas must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.8 An appeal against a judge’s refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a “fettered discretion” — a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.9 These include the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances.10
1 Police v Repia-Nicholas [2023] NZDC 26513.
2 Arms Act 1983, s 52(1). Maximum penalty: 6 months’ imprisonment or a fine not exceeding
$10,000.
3 Arms Act 1983, s 45(1). Maximum penalty: 4 years’ imprisonment or a fine not exceeding $5,000.
4 Crimes Act 1961, s 194A. Maximum penalty: 2 years’ imprisonment.
5 Crimes Act 1961, ss 246 and 247(a). Maximum penalty: 7 years’ imprisonment.
6 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty: 2 years’ imprisonment or a fine not exceeding $6,000, and a minimum 1 year disqualification from holding or obtaining a driver license.
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Fraser v R [2013] NZCA 250 at [20].
10 Sentencing Act 2002, s 8(g).
[5] An appeal against a refusal to grant home detention is not an opportunity to review or revisit the merits. The appellant must demonstrate an error by the Judge in exercising their sentencing discretion.11
The District Court decision
[6] In determining Mr Repia-Nicholas’s sentence, Judge Lawson noted Mr Repia- Nicholas was 22 years old and considered both a Provision of Advice to the Court report and a detailed report provided pursuant to s 27 of the Sentencing Act 2002 outlining Mr Repia-Nicholas’ unstable and chaotic background.12 Judge Lawson noted Mr Repia-Nicholas had been moved around extended family following the separation of his mother and father when he was about five years’ old. The s 27 report described Mr Repia-Nicholas beginning offending at a relatively young age, facing behavioural issues at several schools, suffering from a head injury when he was very young and receiving medication for psychiatric issues.13 The Judge also noted a prolonged history of chaotic and hazardous alcohol and substance abuse from age 12.14
[7] In declining to grant leave to apply for home detention, Judge Lawson noted that there was no appropriate address available.15 His Honour concluded leave was in any event inappropriate for the following reasons:
[10] What all of that means Mr Repia-Nicholas is that the end result is 21 months’ imprisonment. That is the sentence that I impose. You have asked me to consider whether I would consider granting you leave for a substituted one and the answer to that is very directly no. That is because I do not consider that there is an appropriate address available. It is not a situation where in my view the sentencing needs of this matter are dealt with by way of granting you leave to apply for a substituted sentence. You are someone in my view that needs to spend some time in custody. Deterrence and denunciation are essential aspects of the sentencing exercise and so I refuse you leave to apply for a substituted sentence.
11 Fraser v R, above n 9, at [20], citing James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].
12 At [6].
13 At [7].
14 At [7].
15 At [10].
The position of the parties
[8] Mr Douglas, on behalf of Mr Repia-Nicholas, submitted Judge Lawson erred in not granting leave to apply for a substituted sentence of home detention given the background features, age and rehabilitative prospects of Mr Repia-Nicholas.
[9] Mr Douglas submitted that the pre-sentence and cultural reports, together with Mr Repia-Nicholas’ youth and prospects of rehabilitation, give rise to a situation where the least restrictive outcome ought to be a sentence of home detention to a residential rehabilitative programme if one became available. Mr Douglas highlighted Mr Repia-Nicholas’ stated willingness to participate in residential rehabilitation and the need to address his long-term drug use, violence, offending supporting attitudes and poor decision making. Mr Douglas relied on Churchward v R16 and Dickey v R17 in recognising the offender’s youth and prospect of rehabilitation.
[10] Mr Douglas further submitted that, despite numerous terms of imprisonment over the past five years, Mr Repia-Nicholas has not yet had the opportunity to engage in a residential rehabilitative programme.
[11] On behalf of the Crown, Mr Taane submitted Judge Lawson struck an appropriate balance in imposing the least restrictive outcome appropriate in the context of the offending and considering the purposes of sentencing. Rehabilitation, he submits, must be balanced with the need to deter and denounce the offending, and to protect the community.
[12] Mr Taane also submitted that the Court’s refusal to grant leave to apply for home detention was appropriate given Mr Repia-Nicholas’ previous offending, including periods of imprisonment for two instances of family violence and two instances of possession of an offensive weapon.
16 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
17 Dickey v R [2023] NZCA 2.
Discussion
[13] Having considered the arguments of counsel I have concluded the appeal should be allowed.
[14] In this case, the s 27 report, in addition to providing the standard information on the cultural background of the offender, provided detailed and comprehensive information about Mr Repia-Nicholas’s drug and alcohol issues and the causal relationships between those and his clear propensity to use violence. One of the s 27 report’s co-authors, Rachel Cade, is a registered comprehensive nurse, and was clearly qualified to provide the analysis contained in the report with 30 years of experience and extensive practice history in the area of mental health and addictions, and holding a Bachelor of Nursing, a Post Graduate Diploma in Health Science, a Masters in Nursing, and a Postgraduate certificate in the assessment and treatment of Addictions and Co-Existing Disorders. She is also a registered addictions practitioner and clinical supervisor with the Drug and Alcohol Practitioners Association of Aotearoa New Zealand (DAPAANZ).
[15] As a result, it is significant that the s 27 report provides a clinical diagnosis pursuant to the Diagnostic and Statistical Manual of Mental Disorders (5th edition) (“DSM-5”). Assessing Mr Repia-Nicholas against the criteria for substance use disorder in DSM-5, the s 27 report writers concluded:
Dennis has a severe methamphetamine and cannabis use disorder. He also engaged in hazardous and chaotic polysubstance abuse of non-prescribed medication and other illicit substances. He is a binger drinker [sic] of alcohol, on a regular basis, which adversely affects his behaviour and impairs his judgment. He has coexisting substance use and mental health disorders that require further clarification by way of review of previous records or further specialist assessment for diagnostic clarity. This will assist to guide any treatment planning for rehabilitation purposes.
There is the impression of exaggerated reporting to some aspects of Dennis’s substance use, however, this is more in terms of frequency than of the substances he is using. He is well versed in the terminology of substances, and his criminal, social and personal history go some way to adding corroboration to a significant portion of his self-reporting. Even if he is over- reporting there is little doubt that he has sever [sic] polysubstance abuse problems that have resulted in adverse social and personal outcomes. His chaotic and ill-considered use of multiple substances (such as non-prescribed medication) is a dangerous practice as Dennis is not aware of the effects of medications in terms of overdose, side effects or addiction profiles.
[16]In addition to these issues the report writers went on to note that:
…Dennis has a pattern of polysubstance abuse that is chaotic, hazardous in its use, and which has affected his emotional and intellectual development, as well as contributing significantly to his offending patterns, over time. In the absence of any clinical documentation, the writers were not able to ascertain if any formal cognitive testing has been completed for Dennis – or any confirmed psychiatric diagnosis (although he is prescribed antipsychotic medication, and his symptom reporting is consistent with some form of psychiatric illness).
The writers would recommend, if Dennis is to be considered for residential rehabilitation, that formal testing of his intellectual capabilities be undertaken
– in order to consider what type of treatment he will be able to meaningfully engage in. If Dennis continues to abuse substances, his reoffending risk would be high and his mental state is likely to deteriorate, as he struggles to adhere to psychiatric treatment in the community.
[17] Although the report writers noted that further information was required, there is clearly sufficient information available to make it absolutely clear that Mr Repia-Nicholas is in urgent need of therapeutic intervention. Conversely, given the issues identified, the imposition of a short sentence of imprisonment for denunciation and deterrence purposes appears misconceived. While denunciation and deterrence are clearly important considerations, they are inevitably of less weight in this particular case given the failure of previous similar sentences, noting that granting leave to apply for home detention does not minimise the seriousness of this offending given there is no change to the term of the end sentence proposed.18
[18] Instead, I conclude in accordance with s 16(2) of the Sentencing Act 2002 that a rehabilitative sentence, being home detention at an appropriate rehabilitation facility commensurate with the risks Mr Repia-Nicholas presents and his identified rehabilitative needs, would be consistent with the application of the principles of s 8, and in particular s 8(i), to this particular case.
[19] It is important to note that while a bed is now available for Mr Repia-Nicholas at a Grace Foundation facility this appeal is not a formal application to substitute his sentence of imprisonment for home detention at a rehabilitative facility, nor has sufficient information been provided as to what the Grace Foundation could provide
18 Noting that in the event home detention is ultimately granted, the period he would spend on home detention would likely be reduced to half of the term of imprisonment remaining. Although in this case that might require adjustment to allow for the successful completion of rehabilitation.
to Mr Repia-Nicholas. However, and based on my knowledge of what the Grace Foundation have been able to offer in other cases, such an application would be unlikely to succeed given Mr Repia-Nicholas’s particular issues, including his propensity for violence and his striking drug and alcohol issues. Clearly any proposal will need to minimise the risk of offending while Mr Repia-Nicholas receives rehabilitation, and demonstrate the facilities are available to provide the type of rehabilitation appropriate to address Mr Repia-Nicholas’s needs in an appropriately secure environment.
[20] Conversely, it is noted that Mr Repia-Nicholas is due to be assessed shortly by Odyssey House and, if he meets their criteria, he may then have to wait between three and 12 months for a bed to become available. As a result, while it appears that a facility like Odyssey House is what Mr Repia-Nicholas requires, it is not at all clear that a bed will come available during the period of his sentence, noting that he is currently expected to be released in early August 2024.
Decision
[21] The appeal is allowed. Leave is granted for Mr Repia-Nicholas to apply to substitute his sentence of imprisonment with a sentence of home detention at an appropriate rehabilitative facility capable of providing a sufficiently secure environment as well as appropriate rehabilitation to meet his identified clinical needs.
[22] In the meantime, it is hoped that prior to Mr Repia-Nicholas’s release date Corrections will be able to facilitate formal cognitive testing for Mr Repia-Nicholas as recommended in the s 27 report. If not, the current special release conditions are to be amended by the addition of a condition to this effect namely:
6. To attend an assessment for cognitive testing as directed by a probation officer. To attend and complete any treatment or programme as recommended by the assessment as directed by and to the satisfaction of the probation officer.
Powell J
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