Solicitor-General v Napia

[2019] NZHC 742

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-120

[2019] NZHC 742

BETWEEN

SOLICITOR-GENERAL

Appellant

AND

JOHNSON MAHANGA NAPIA

Respondent

Hearing:

8 April 2019

Appearances:

A Ewing for Appellant

A Ngapo-Lipscombe and N Tekanawa-Gwynne for Respondent

Judgment:

9 April 2019

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 9 April 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

SOLICITOR-GENERAL v NAPIA [2019] NZHC 742 [9 April 2019]

[1]    Mr Napia pleaded guilty in the District Court to a raft of charges involving allegations of aggravated burglary, burglary and violence. On 26 October 2018 Judge Hollister-Jones sentenced him to four years six months imprisonment.1 The  Solicitor- General appeals against sentence on the basis that the Judge erred in principle in several respects and this led him to impose a sentence that was manifestly inadequate.

The charges

[2]    The charges were laid as a result of a series of offences that Mr Napia committed between 26 August and 10 December 2017.

[3]    On 26 August 2017, Mr Napia saw a 15 year old boy using a cellphone in the street. He approached the boy and asked to use the cellphone. When the boy declined, Mr Napia punched him in the mouth with a closed fist. This caused the boy to suffer two broken teeth and injuries to his gum. This led to a charge of injuring with intent to injure. Mr Napia was arrested on this charge but subsequently released on bail.

[4]    At approximately 1.40 am on 3 December 2017, whilst on bail, Mr Napia went to a residential address in Tokoroa. He walked up the driveway and searched a vehicle that was parked at the address. After removing several items from the vehicle he entered the rear of the address and stole tobacco that had been left on a table.

[5]    Mr Napia then went to the address next door. He entered the property through an open bathroom window after picking up a crowbar in the washhouse. The property was occupied by elderly relatives of Mr Napia, who were asleep in the address at that time.

[6]    Mr Napia searched the address, including three bedrooms in which children were sleeping. He placed items that he found in a rubbish bag. These included meat, alcohol, a handbag, a cellphone and keys to the house and a vehicle. The female occupant of the address awoke and alerted her  husband  to  Mr Napia’s  presence. Mr Napia then walked into the bedroom occupied by the couple and instructed the

1      R v Napia [2018] NZDC 22558.

female  occupant  to “get back”.    When her husband approached him, Mr Napia attempted to strike him with the crowbar but missed.

[7]    The female occupant of the address then saw that Mr Napia was holding a rubbish bag contained items stolen from the address. When she tried to take it away from him, he struck her on the left shoulder with the crowbar and injured her. When the male occupant tried to intervene, Mr Napia struck him on the arm and chest with the crowbar. At that point one of the children from the address entered the room in a distraught state. As the parents were comforting her Mr Napia used the opportunity to leave the address, taking the items in the rubbish bag with him. The occupants of the address suffered significant bruising  as  a  result  of  the  injuries  inflicted  by Mr Napia’s use of the crowbar. Mr Napia faced charges of aggravated burglary and aggravated injury as a result of this incident.

[8]    Mr Napia then went to an address in Tokoroa occupied by his former partner. He entered the address by force and cooked himself a meal. He then stole meat from the address.

[9]    On the weekend of 9 and 10 December 2017, Mr Napia went on a spree of burglaries and thefts. He stole a pair of sunglasses and some cash after breaking and entering a vehicle parked in the carport of a residential address. He then stole a wallet and other items from the glovebox of a second car. Mr Napia then broke into another car that was parked on the street but did not find anything to steal in it. A short time later he broke into a fourth vehicle. He removed the steering column from that vehicle and interfered with the ignition barrel in an unsuccessful attempt to steal it.

[10]   Mr Napia then went to a house next door to that occupied by his mother. He entered the address through a bedroom window and stole two firearms and some alcohol. Whilst searching the address he disturbed an occupant, who was asleep on a couch. In all, Mr Napia took items worth more than $5,500 in value from that address.

[11]   Mr Napia then went to Mangakino, where he broke and entered an unoccupied holiday home by kicking in the front door. He stole alcohol from that address as well.

From there he broke into the garage of a nearby address and stole food from a freezer and items from the glove box of a vehicle parked there.

[12]   At about 1.40 am on 10 December 2017 Mr Napia broke and entered a residential address in Mangakino. The address was occupied by persons who were related to him. They were in bed asleep when he entered the address. Mr Napia proceeded to search the property looking for items to steal. As he did so, the male occupant awoke. Mr Napia walked towards him with his arms in a fighting position and repeatedly punched him to the head. This knocked the male occupant, who was aged 67 years of age, unconscious. When the man’s wife entered the room, she saw Mr Napia kicking her husband in the ribs. He punched the female on the chin, causing her to fall backwards onto the floor. He then punched her to the right eye.

[13]   The male occupant of the address regained consciousness and saw Mr Napia assaulting his wife. When he tried to intervene by grabbing Mr Napia’s legs, Mr Napia kicked him in the head and ribs. Mr Napia then ran from the property, taking with him bottles of alcohol, a charging cable and some cash. He dropped an iPad as he went through the gate of the address. The male occupant of the address suffered a cut, bruising and swelling to the left eye and a graze to the knee. The female occupant suffered bruising and swelling to the chin as well as a cut eyebrow, for which she required stitches. Mr Napia faced charges of burglary and aggravated wounding (x2) as a result of this incident.

[14]   Not surprisingly, the victim impact reports prepared by the victims of the burglaries describe the profound and long-lasting effects Mr Napia’s offending has had on them.

The sentence

[15]   The Judge took the lead charges as those relating to the offending that occurred on 10 December 2017 because that offending involved unlawful entry into an occupied residential address at night. It also involved premeditation and a high level of unprovoked violence against two vulnerable and elderly victims. The Judge adopted a starting point of six years imprisonment on the charges relating to that incident.

[16]   The Judge considered the next most serious charges to be those relating to the offending that occurred on 3 December 2017. This involved similar features to the offending that occurred on 10 December 2017, and had the added aggravating feature that it involved the use of a crowbar as a weapon against two elderly victims. The Judge took a starting point of five years imprisonment on those charges. Taking into account totality principles, he applied an uplift of three years imprisonment to reflect the charges relating to this offending.

[17]   The Judge next took a starting point of three years six months imprisonment on the remaining charges other than that relating to the offending on 26 August 2017. The Judge applied totality principles to add a reduced uplift of two years to reflect this offending.2

[18]   The Judge then considered the offending that occurred on 28 August 2017. He considered this required a further uplift because it was offending that was different in nature to the other offending and occurred earlier in time. He considered it warranted an uplift of 12 months imprisonment, thereby producing an aggregate starting point of 12 years imprisonment. Having regard again to totality principles, however, the Judge reduced this to a starting point of ten years six months imprisonment.

[19]   The Judge added an uplift of six months to reflect the fact that Mr Napia had committed the December offences after he had been granted bail on the charge relating to the assault on 26 August 2017. Mr Napia also had previous notations and convictions for similar offending in both the Youth and District Courts. This resulted in a sentence of 11 years imprisonment before taking into account mitigating factors.

[20]   The Judge applied a discount of ten per cent to reflect Mr Napia’s youth. He was just 19 years of age when he committed the present offences. He then applied a discount of 25 per cent to reflect factors identified in a report presented under s 27 of the Sentencing Act 2002 (the Act). These included the fact that Mr Napia’s childhood was characterised by significant deprivation and exposure to the use of both alcohol

2      The Judge’s sentencing remarks refer to an uplift of two months but it is clear from his subsequent calculations that he intended to apply an uplift of two years.

and drugs at an early age. The Judge found “a significant causal connection” between Mr Napia’s deprived childhood and the present offending.

[21]   The Judge allowed further discounts of five per cent each to reflect remorse and prospects of rehabilitation. This reduced the sentence to one of six years imprisonment. Finally, the Judge applied a discount of 25 per cent for guilty pleas, thereby producing the end sentence of four years six months imprisonment.

The arguments

[22]   For the Crown, Ms Ewing accepts that the mechanics of the sentence do not matter and that the real issue is whether the Judge imposed an end sentence that was manifestly inadequate having regard to all relevant factors. She submits, however, that the Judge erred in applying totality principles at three separate stages of the sentencing process. She says this resulted in him reaching an inadequate starting point before taking into account aggravating and mitigating factors personal to Mr Napia. Ms Ewing also submits the Judge provided a discount that was overly generous in relation to the factors identified in the s 27 report. She also submits the end sentence does not adequately reflect the risk that Mr Napia presents of similar serious offending in the future.

[23]   On Mr Napia’s behalf Ms Ngapo-Lipscombe says the Judge did not fall into error in applying totality principles and that all of the discounts for mitigating factors were fully justified on the facts.

Decision

Application of totality principles

[24]   As will already be evident, the Judge applied totality principles at three separate stages of the sentencing process. First, he reduced the starting point on the  3 December offending from five years to three years imprisonment. Secondly, he reduced the starting point of three years six months to two years imprisonment on the remaining charges other than that relating to the offending on 26 August 2017.

Thirdly, he reduced the end starting point of twelve years imprisonment by eighteen months to reach the final starting point of ten years six months imprisonment.

[25]   I consider the Judge was entitled, and indeed required, to apply totality principles on each occasion when he considered whether to increase the sentence to reflect the different sets of charges. The object of totality principles is to ensure the end sentence is not wholly out of proportion to the overall culpability of the offending.3 The Judge applied totality principles appropriately in relation to the first two sets of charges. He was then required to have regard to those principles again when considering the level of uplift, if any, to apply on the charge relating to the incident that occurred on 26 August 2017. This required him to determine whether to reduce the starting point of twelve months imprisonment in relation to that charge to ensure the end starting point on all charges was not wholly out of all proportion to the overall culpability of the offending. The Judge purported to apply totality principles on that charge to reduce the end sentence by 18 months.

[26]   I do not consider the Judge was correct to approach the issue of totality in this way. If the earlier reductions to reflect totality principles were correct, the Judge needed only to decide whether to apply a further uplift to reflect the August offending. If an uplift was required, the Judge needed to ensure it did not result in the end starting point being wholly out of proportion to the overall gravity of the offending. He could, therefore, have determined that no further increase was required. Alternatively, he could have applied an uplift of less than 12 months on the basis that any greater uplift would result in a sentence that was wholly out of proportion with the overall gravity of the offending. Or he could have decided that no reduction of the 12 month starting point was required given the fact that this involved different and earlier offending. I do not see any principled basis, however, on which the Judge could reduce a starting point of 12 months imprisonment by 18 months to reflect totality principles. That approach inevitably resulted in a double deduction being made under the guise of totality principles.

3      Sentencing Act 2002, s 85(2).

[27]   I consider an end starting point of 11 years imprisonment was well within the available range to reflect the very serious nature of all charges other than those relating to the August incident. I also agree with the Judge that the August incident warranted a starting point of 12 months imprisonment. Taking into account totality principles I consider an uplift of not less than six months imprisonment was warranted to reflect the charge relating to the August offending.

[28]   It follows that I consider the Judge erred in principle by applying a reduction of 18 months to reflect totality principles in relation to the August offending. He ought to have adopted an end starting point of 11 years six months imprisonment before taking into account aggravating and mitigating factors personal to Mr Napia.

[29]   Neither party takes issue with the uplift of six months imprisonment to reflect Mr Napia’s previous convictions and the fact that the December offending occurred whilst Mr Napia was on bail on the August charge. The Solicitor-General contends, however, that the Judge applied overly generous discounts to reflect mitigating factors other than the guilty pleas.

The deductions for mitigating factors

[30]    As I have already recorded, the Judge applied discounts for youth (10 per cent), remorse (5 per cent), prospects of rehabilitation (5 per cent) and factors disclosed in the s 27 report (25 per cent). Ms Ewing accepts that discounts were available for all these factors but that a total discount of 45 per cent was manifestly excessive. She submits that a total discount of no more than 20 per cent ought to have been applied in relation to remorse, rehabilitation and the factors disclosed by the s 27 report.

[31]   Ms Ewing also submits that Mr Napia was fortunate to receive a discount to reflect his rehabilitative prospects because there is little evidence to suggest Mr Napia has taken steps to rehabilitate himself and he remains a significant risk for similar offending in the future. In addition, Ms Ewing points out that Mr Napia has accumulated several previous convictions in both the Youth and District Court. This fact limits to some extent the discount that could be given for youth.

[32]   The s 27 report prepared in relation to Mr Napia paints a depressing picture. It demonstrates that he was brought up in a home environment in which his mother was selling drugs and supplying friends and associates with both alcohol and drugs. This resulted in Mr Napia suffering neglect, both physical and emotional. In addition, it is likely that Mr Napia was exposed not only to physical neglect but also to violence at the hands of others.

[33]   Mr Napia was also isolated from positive role models because his father was absent from his life between the age of 6 and 15 years. Mr Napier began living with his father at 15 years of age, when his father was a methamphetamine user and dealer. Other members of his family were similarly involved heavily in the use of drugs and alcohol. As a result, and not surprisingly, Mr Napia was exposed to the use of both drugs and alcohol at a very early age. This has significantly impaired Mr Napia’s wellbeing and his life choices. He now suffers from an inability to make good choices. The report writer observes:

The impact of his dysfunctional upbringing in the sole care of his mother and the trauma and discourse he has suffered over the years have supported and aided Mr Napia to continue to make bad choices and decisions that have negatively impacted his mental health is well described throughout this assessment [sic] and articulates the issues he has faced from a child to his adulthood.

…

The culmination of all these factors and Mr Napia’s lack of understanding of right from wrong explain the connection to culpability as he demonstrates little competence in effective self-health management resulting in reacting the only way he knows how, which is turning to drugs, crime and offending.

[34]   The Judge found a link between these factors and the present offending in the following paragraph of his sentencing remarks:4

[32] Out of this, Mr Napia, and it might be hard for you to hear this and  your whanau who are listening, but I find that your childhood had significant deprivation. In particular, you were exposed to first cannabis, then synthetics, then methamphetamine, and that was almost all you knew. Also, your mother is an alcoholic. Your father was out of your life for nine years. Your mother was not able to support you emotionally or educationally, neither was your Nan when you went to live with her. The end result is that I find a significant causal connection between your deprived childhood and in particular your awful exposure to drugs and what happened over these two weekends in

4      R v Napia, above n 1.

December. Whilst I could not discount your offending for self-induced intoxication, I do find that your deprived childhood has resulted in you being in this state that resulted in this offending. I find that this reduces your culpability and I make a deduction of 25 percent for that.

[35]   Ms Ewing submits that any causal link between Mr Napia’s present offending and the factors identified in the s 27 report is weak. She contends that, in reality, the  s 27 report demonstrates no more than that Mr Napia had early exposure to alcohol and drugs, and that his intoxicated state in December 2017 was the driver of his present offending. She argues this is insufficient to justify the Judge applying a deduction of 25 per cent. Ms Ewing submits that, standing alone, the factors identified in the s 27 report could not justify a discount of more than ten per cent.

[36]   I agree with the Judge’s assessment, and the Solicitor-General accepts, that some allowance needed to be made for the factors identified in the s 27 report. The principal issue of concern, as Ms Ewing points out, arises out of the role played by Mr Napia’s intoxication in the current offending. The pre-sentence report makes it clear that he was heavily intoxicated on both drugs and alcohol at the time of the present offending. Section 9(3) of the Act prohibits the Court from taking into account by way of mitigation the fact that an offender was, at the time of committing an offence, affected by the voluntary consumption or use of alcohol or any drug.

[37]   I consider, however, that the factors identified by the s 27 report go well beyond merely the use and abuse of drugs and alcohol. Rather, they paint Mr Napia as being a person whose deprived upbringing now effectively prevents him from making good decisions. The use of drugs and alcohol is just one of the manifestations of his current mental state. I therefore consider the Judge was entitled to apply a discount of greater than ten per cent to reflect the factors identified in the s 27 report. Overall, however, I consider the total discount applied to reflect remorse, rehabilitative prospects and the factors identified in the s 27 report to be too great. I do not consider a discount of more than 25 per cent to reflect all those factors could be justified. It follows that I consider the Judge applied a discount ten per cent greater than was justified by these factors.

[38]   On Mr Napia’s behalf Mrs Ngapo-Lipscombe submits that the end sentence of four years six months imprisonment can be defended on the basis that the Judge would

have been justified in applying greater discounts to reflect Mr Napia’s youth and prospects of rehabilitation.  I do not  accept that submission because I  agree with  Ms Ewing that there is little evidence that Mr Napia currently shows any signs of rehabilitation and his previous convictions count against any greater discount being given to reflect his youth.

[39]   Applying an overall discount of 35 per cent rather than 45 per cent reduces the starting point by four years three months. This produces a sentence of seven years nine months imprisonment before taking into account a discount of two years, or    25 per cent, for guilty pleas.

Result

[40]   The appeal is allowed. The concurrent sentences of four years six months imprisonment imposed on the charges of aggravated wounding are quashed.5 In their place I impose concurrent sentences of five years nine months imprisonment. The concurrent sentences imposed on the remaining charges are to remain in place.

Lang J

Solicitors:

Crown Law, Wellington

Ngapo-Lipscome Law, Tokoroa

5      CRN 17063005978 and 5979.