Repia-Nicholas v Police - [2024] NZHC 311

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…

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.

Keep reading for free

Create a free CaseChat account to read Repia-Nicholas v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 311
Decision Date: 26 February 2024

CaseChat Overview and Summary

Dennis Repia-Nicholas appeals against the sentencing decision of Judge W Lawson, who sentenced him to 21 months' imprisonment for several criminal offences. The appeal focuses solely on the refusal to grant leave for Mr Repia-Nicholas to apply for home detention at a rehabilitative facility if such a placement became available during his sentence. The Court must determine if the refusal to grant leave constituted an error in the imposition of the sentence.

The legal issues before the court are whether the sentencing judge erred in declining to grant leave for Mr Repia-Nicholas to apply for home detention and if the Court should substitute its view on the sentence. The appeal hinges on whether the judge's decision to deny leave to apply for home detention was an error in exercising the constrained discretion afforded under the Sentencing Act 2002. The appeal does not challenge the sentence's starting point, uplifts, or discounts.

The Court found that the refusal to grant leave for home detention was an error. The sentencing judge did not consider the full extent of Mr Repia-Nicholas's drug and alcohol issues, and the causal relationship between those issues and his offending. The detailed report provided under s 27 of the Sentencing Act 2002, along with the cultural report, clearly demonstrated the need for a rehabilitative sentence rather than a punitive one. The report highlighted Mr Repia-Nicholas's severe methamphetamine and cannabis use disorder, chaotic polysubstance abuse, and the need for formal cognitive testing. The Court concluded that a rehabilitative sentence, such as home detention at a facility equipped to handle Mr Repia-Nicholas's specific needs, would be more appropriate. The appeal was allowed, and leave was granted for Mr Repia-Nicholas to apply to substitute his sentence of imprisonment with a sentence of home detention at an appropriate rehabilitative facility.

The final orders are that the appeal is allowed, and 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. Additionally, if not facilitated by Corrections prior to his release date, special release conditions will be amended to include an assessment for cognitive testing and any recommended treatment or programme.

Orders