NAPIA v R [2019] NZCA 618

NAPIA v R [2019] NZCA 618 [5 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA193/2019[2019] NZCA 618BETWEEN JOHNSON MAHANGA NAPIAApplicantAND THE QUEENRespondentCourt: Clifford, Ellis and Peters JJCounsel: A E Ngapo-Lipscombe for ApplicantJ M Irwin for RespondentJudgment:(On the papers)5 December 2019 at 10 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The applicant, Mr Napia, seeks leave to bring a second appeal against sentence.We may grant leave only if satisfied the appeal involves a matter of general or publicimportance or a miscarriage of justice may have occurred or may occur unless theappeal is heard.11 Criminal Procedure Act 2011, s 253.Background[2] In April 2018, Mr Napia pleaded guilty to 15 charges of, amongst other things,injuring, wounding, burglary and aggravated burglary. Mr Napia committed the firstoffence in August 2017 and the balance over three days/nights in December 2017.For present purposes it is not necessary to describe the offending in any detail.It suffices to note that it involved, amongst other things, acts of significant violenceagainst elderly and vulnerable relatives in their homes during the early hours of themorning. Mr Napia was aged 19 and intoxicated on alcohol and drugs at the time ofthe offending.[3] Judge Hollister-Jones sentenced Mr Napia in October 2018.2 The Judgeadopted a starting point for the offending of 10 years, six months' imprisonment,which he then increased by six months for Mr Napia's prior convictions and becauseMr Napia committed the December 2017 offending whilst on bail for the August 2017offending. The Judge then made deductions totalling 45 per cent for mitigatingfactors, and gave a further 25 per cent deduction for Mr Napia's guilty pleas.Mr Napia's end sentence was four years, six months' imprisonment.First appeal[4] The Solicitor-General appealed to the High Court on the ground the sentencewas manifestly inadequate.3 Lang J was required to allow the appeal if satisfied therewas an error in the sentence imposed and that a different sentence should be imposed.4[5] Lang J was satisfied the Judge had erred in two respects. First, Lang J acceptedthe Solicitor-General's submission that the Judge had erred in determining the startingpoint. Lang J corrected the error, and increased the starting point to 11 years,six months' imprisonment.5 The six-month uplift for prior convictions and offendingwhilst on bail was left in place, and so the sentence prior to deductions for mitigatingfactors was 12 years' imprisonment.2 R v Napia [2018] NZDC 22558.3 Solicitor-General v Napia [2019] NZHC 742.4 Criminal Procedure Act, s 250(2).5 Solicitor-General v Napia, above n 3, at [28].[6] Mr Napia does not dispute that the Judge made the error concerned, or thatLang J's increased starting point was a proper one.[7] Secondly, the deductions the District Court Judge made for mitigating factorsincluded 10 per cent for youth, five per cent each for Mr Napia's remorse andrehabilitative prospects, and a further 25 per cent on the ground that there was a"significant causal connection" between Mr Napia's deprived background on the onehand and his offending on the other.6 Matters pertaining to Mr Napia's backgroundhad been put before the Court in a report provided pursuant to s 27 of theSentencing Act 2002 (s 27 report and s 27 factors).[8] On appeal, the Solicitor-General submitted to Lang J that the Judge's combineddiscount of 45 per cent was manifestly excessive; that no more than 20 per cent oughtto have been given for remorse, prospects of rehabilitation and s 27 factors; and thatno more than 10 per cent could be justified for the s 27 factors alone.[9] Having considered the facts of the offending and the contents of the s 27 report,Lang J was satisfied the causal connection the Judge had identified, referred to in [7]above, existed. However, Lang J was also satisfied the 35 per cent discount the Judgehad allowed for remorse, rehabilitative prospects and s 27 factors was excessive andthat no more than 25 per cent could be justified.7 Lang J substituted 25 per centaccordingly. This reduced the overall discount for mitigating factors, that is, includingyouth, to 35 per cent.8[10] The effect of Lang J's higher starting point and reduced discount was toincrease Mr Napia's end sentence to five years, nine months' imprisonment. If theDistrict Court Judge's discounts were reinstated, Mr Napia's end sentence would befive years' imprisonment, so a maximum of nine months' imprisonment would be inthe balance on appeal.6 R v Napia, above n 2, at [32].7 Solicitor-General v Napia, above n 3, at [37].8 At [39].The application for leave[11] Ms Ngapo-Lipscombe submits the proposed appeal raises a matter of generalor public importance. She submits that, if the appeal were heard, this Court wouldhave a further opportunity to discuss the significance of s 27 factors in sentencing andgive guidance as to the information most likely to assist the sentencing court indetermining the appropriate discount, if any, for such factors.[12] Ms Ngapo-Lipscombe also submits a miscarriage of justice has occurredbecause the District Court Judge gave his discounts in the exercise of discretion.She submits that, as a result, Lang J could not intervene unless satisfied the Judge hadtaken into account irrelevant considerations, or had failed to take relevantconsiderations into account, or was plainly wrong.9Discussion[13] We are not satisfied either ground on which we may grant leave is made out.[14] As to the first ground, and as we have said, Lang J reduced the discount forreasons related to this particular case. Nothing in his judgment suggests that furtherguidance from this Court is required as to s 27 factors, or would have affected theoutcome. We also accept Crown counsel, Ms Irwin's, submission that there issubstantial guidance available in existing authorities as to how an offender'sbackground may be relevant in sentencing. These authorities include this Court'srecent judgment in Zhang v R, delivered after we received counsel's submissions.10Although immediately concerned with methamphetamine-related offending, much ofwhat is said in Zhang, particularly as regards the point in issue in this case, is of generalapplication. We add we do not consider any of the statements in Zhang would assistMr Napia's application for leave.[15] Likewise, we are not satisfied a miscarriage of justice may have occurred orwill occur if the appeal is not heard. The issue for Lang J was whether he was satisfiedthere was an error and that a different sentence should be imposed, which he plainly9 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.10 Zhang v R [2019] NZCA 507 at [159], [161] and [162].was. As we have said, Mr Napia's offending involved significant violence committedin the early hours of the morning against older, vulnerable and terrified people in theirhomes. In light of both that and his criminal history we consider the discountsMr Napia received were generous.Result[16] We decline Mr Napia's application for leave to bring a second appeal againstsentence.Solicitors:NL Lawyers, Tokoroa for ApplicantCrown Law Office, Wellington for Respondent