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,…

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.

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Details

Case: [2019] NZHC 742
Decision Date: 9 April 2019

CaseChat Overview and Summary

In the case of Solicitor-General v Napia, the High Court considered an appeal by the Solicitor-General against the sentence imposed on Johnson Mahanga Napia by the District Court. Mr Napia had pleaded guilty to multiple charges of aggravated burglary, burglary, and violence committed between August and December 2017. The sentence imposed by the District Court was four years and six months imprisonment. The appeal focused on whether the District Court erred in applying the principle of totality in determining the sentence and whether the sentence was manifestly inadequate.

The legal issues revolved around the correct application of totality principles in sentencing and the appropriateness of the discounts applied for mitigating factors such as youth, remorse, rehabilitation prospects, and factors identified in a section 27 report. The Crown argued that the District Court had erred in applying the totality principle at three stages, resulting in an inadequate starting point for the sentence. The Crown also argued that the discounts for mitigating factors were overly generous, particularly those relating to remorse, rehabilitation prospects, and the factors in the section 27 report.

The High Court found that while the District Court was entitled to apply totality principles, it erred in applying a reduction of 18 months in relation to the August offending. The appropriate approach would have been to decide whether an uplift was required and, if so, to ensure it did not result in a sentence wholly disproportionate to the overall gravity of the offending. The Court concluded that an uplift of six months was warranted, resulting in an end starting point of 11 years six months imprisonment. The Court also found that the total discount of 45 per cent for mitigating factors was excessive, reducing the starting point by four years three months to seven years nine months imprisonment. After applying a discount of 25 per cent for guilty pleas, the Court imposed concurrent sentences of five years nine months imprisonment on the charges of aggravated wounding.

The appeal was allowed, and the original sentences were quashed. The Court imposed new sentences of five years nine months imprisonment on the charges of aggravated wounding and maintained the concurrent sentences on the remaining charges.

Orders