SOLICITOR-GENERAL v NAPIA [2019] NZHC 742

SOLICITOR-GENERAL v NAPIA [2019] NZHC 742 [9 April 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-463-120[2019] NZHC 742BETWEEN SOLICITOR-GENERALAppellantAND JOHNSON MAHANGA NAPIARespondentHearing: 8 April 2019Appearances: A Ewing for AppellantA Ngapo-Lipscombe and N Tekanawa-Gwynne for RespondentJudgment: 9 April 2019JUDGMENT 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 RegistrarDate[1] Mr Napia pleaded guilty in the District Court to a raft of charges involvingallegations of aggravated burglary, burglary and violence. On 26 October 2018 JudgeHollister-Jones sentenced him to four years six months imprisonment.1 TheSolicitor- General appeals against sentence on the basis that the Judge erred inprinciple in several respects and this led him to impose a sentence that was manifestlyinadequate.The charges[2] The charges were laid as a result of a series of offences that Mr Napiacommitted between 26 August and 10 December 2017.[3] On 26 August 2017, Mr Napia saw a 15 year old boy using a cellphone in thestreet. 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 suffertwo broken teeth and injuries to his gum. This led to a charge of injuring with intentto 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 wentto a residential address in Tokoroa. He walked up the driveway and searched a vehiclethat was parked at the address. After removing several items from the vehicle heentered 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 throughan open bathroom window after picking up a crowbar in the washhouse. The propertywas occupied by elderly relatives of Mr Napia, who were asleep in the address at thattime.[6] Mr Napia searched the address, including three bedrooms in which childrenwere 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 femaleoccupant 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 the1 R v Napia [2018] NZDC 22558.female occupant to "get back". When her husband approached him, Mr Napiaattempted to strike him with the crowbar but missed.[7] The female occupant of the address then saw that Mr Napia was holding arubbish bag contained items stolen from the address. When she tried to take it awayfrom him, he struck her on the left shoulder with the crowbar and injured her. Whenthe male occupant tried to intervene, Mr Napia struck him on the arm and chest withthe crowbar. At that point one of the children from the address entered the room in adistraught state. As the parents were comforting her Mr Napia used the opportunityto leave the address, taking the items in the rubbish bag with him. The occupants ofthe address suffered significant bruising as a result of the injuries inflicted byMr Napia's use of the crowbar. Mr Napia faced charges of aggravated burglary andaggravated 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 fromthe address.[9] On the weekend of 9 and 10 December 2017, Mr Napia went on a spree ofburglaries and thefts. He stole a pair of sunglasses and some cash after breaking andentering a vehicle parked in the carport of a residential address. He then stole a walletand other items from the glovebox of a second car. Mr Napia then broke into anothercar that was parked on the street but did not find anything to steal in it. A short timelater he broke into a fourth vehicle. He removed the steering column from that vehicleand 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. Heentered the address through a bedroom window and stole two firearms and somealcohol. Whilst searching the address he disturbed an occupant, who was asleep on acouch. 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 unoccupiedholiday 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 freezerand 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 aresidential address in Mangakino. The address was occupied by persons who wererelated to him. They were in bed asleep when he entered the address. Mr Napiaproceeded to search the property looking for items to steal. As he did so, the maleoccupant awoke. Mr Napia walked towards him with his arms in a fighting positionand repeatedly punched him to the head. This knocked the male occupant, who wasaged 67 years of age, unconscious. When the man's wife entered the room, she sawMr Napia kicking her husband in the ribs. He punched the female on the chin, causingher 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 Napiaassaulting his wife. When he tried to intervene by grabbing Mr Napia's legs, Mr Napiakicked him in the head and ribs. Mr Napia then ran from the property, taking with himbottles of alcohol, a charging cable and some cash. He dropped an iPad as he wentthrough 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 occupantsuffered bruising and swelling to the chin as well as a cut eyebrow, for which sherequired 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 theburglaries describe the profound and long-lasting effects Mr Napia's offending has hadon them.The sentence[15] The Judge took the lead charges as those relating to the offending that occurredon 10 December 2017 because that offending involved unlawful entry into an occupiedresidential address at night. It also involved premeditation and a high level ofunprovoked violence against two vulnerable and elderly victims. The Judge adopteda 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 theoffending that occurred on 3 December 2017. This involved similar features to theoffending that occurred on 10 December 2017, and had the added aggravating featurethat it involved the use of a crowbar as a weapon against two elderly victims. TheJudge took a starting point of five years imprisonment on those charges. Taking intoaccount totality principles, he applied an uplift of three years imprisonment to reflectthe charges relating to this offending.[17] The Judge next took a starting point of three years six months imprisonmenton 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 thisoffending.2[18] The Judge then considered the offending that occurred on 28 August 2017. Heconsidered this required a further uplift because it was offending that was different innature to the other offending and occurred earlier in time. He considered it warrantedan uplift of 12 months imprisonment, thereby producing an aggregate starting point of12 years imprisonment. Having regard again to totality principles, however, the Judgereduced 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 hadcommitted the December offences after he had been granted bail on the charge relatingto the assault on 26 August 2017. Mr Napia also had previous notations andconvictions for similar offending in both the Youth and District Courts. This resultedin 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. Hewas just 19 years of age when he committed the present offences. He then applied adiscount of 25 per cent to reflect factors identified in a report presented under s 27 ofthe Sentencing Act 2002 (the Act). These included the fact that Mr Napia's childhoodwas characterised by significant deprivation and exposure to the use of both alcohol2 The Judge's sentencing remarks refer to an uplift of two months but it is clear from his subsequentcalculations that he intended to apply an uplift of two years.and drugs at an early age. The Judge found "a significant causal connection" betweenMr Napia's deprived childhood and the present offending.[21] The Judge allowed further discounts of five per cent each to reflect remorseand prospects of rehabilitation. This reduced the sentence to one of six yearsimprisonment. 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 notmatter and that the real issue is whether the Judge imposed an end sentence that wasmanifestly inadequate having regard to all relevant factors. She submits, however,that the Judge erred in applying totality principles at three separate stages of thesentencing process. She says this resulted in him reaching an inadequate starting pointbefore taking into account aggravating and mitigating factors personal to Mr Napia.Ms Ewing also submits the Judge provided a discount that was overly generous inrelation to the factors identified in the s 27 report. She also submits the end sentencedoes not adequately reflect the risk that Mr Napia presents of similar serious offendingin the future.[23] On Mr Napia's behalf Ms Ngapo-Lipscombe says the Judge did not fall intoerror in applying totality principles and that all of the discounts for mitigating factorswere fully justified on the facts.DecisionApplication of totality principles[24] As will already be evident, the Judge applied totality principles at threeseparate stages of the sentencing process. First, he reduced the starting point on the3 December offending from five years to three years imprisonment. Secondly, hereduced the starting point of three years six months to two years imprisonment on theremaining charges other than that relating to the offending on 26 August 2017.Thirdly, he reduced the end starting point of twelve years imprisonment by eighteenmonths to reach the final starting point of ten years six months imprisonment.[25] I consider the Judge was entitled, and indeed required, to apply totalityprinciples on each occasion when he considered whether to increase the sentence toreflect the different sets of charges. The object of totality principles is to ensure theend sentence is not wholly out of proportion to the overall culpability of the offending.3The Judge applied totality principles appropriately in relation to the first two sets ofcharges. He was then required to have regard to those principles again whenconsidering the level of uplift, if any, to apply on the charge relating to the incidentthat occurred on 26 August 2017. This required him to determine whether to reducethe starting point of twelve months imprisonment in relation to that charge to ensurethe end starting point on all charges was not wholly out of all proportion to the overallculpability of the offending. The Judge purported to apply totality principles on thatcharge to reduce the end sentence by 18 months.[26] I do not consider the Judge was correct to approach the issue of totality in thisway. If the earlier reductions to reflect totality principles were correct, the Judgeneeded 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 startingpoint being wholly out of proportion to the overall gravity of the offending. He could,therefore, have determined that no further increase was required. Alternatively, hecould have applied an uplift of less than 12 months on the basis that any greater upliftwould result in a sentence that was wholly out of proportion with the overall gravityof the offending. Or he could have decided that no reduction of the 12 month startingpoint was required given the fact that this involved different and earlier offending. Ido not see any principled basis, however, on which the Judge could reduce a startingpoint of 12 months imprisonment by 18 months to reflect totality principles. Thatapproach inevitably resulted in a double deduction being made under the guise oftotality principles.3 Sentencing Act 2002, s 85(2).[27] I consider an end starting point of 11 years imprisonment was well within theavailable range to reflect the very serious nature of all charges other than those relatingto the August incident. I also agree with the Judge that the August incident warranteda starting point of 12 months imprisonment. Taking into account totality principles Iconsider an uplift of not less than six months imprisonment was warranted to reflectthe charge relating to the August offending.[28] It follows that I consider the Judge erred in principle by applying a reductionof 18 months to reflect totality principles in relation to the August offending. He oughtto have adopted an end starting point of 11 years six months imprisonment beforetaking into account aggravating and mitigating factors personal to Mr Napia.[29] Neither party takes issue with the uplift of six months imprisonment to reflectMr Napia's previous convictions and the fact that the December offending occurredwhilst Mr Napia was on bail on the August charge. The Solicitor-General contends,however, that the Judge applied overly generous discounts to reflect mitigating factorsother than the guilty pleas.The deductions for mitigating factors[30] As I have already recorded, the Judge applied discounts for youth (10 percent), remorse (5 per cent), prospects of rehabilitation (5 per cent) and factorsdisclosed in the s 27 report (25 per cent). Ms Ewing accepts that discounts wereavailable for all these factors but that a total discount of 45 per cent was manifestlyexcessive. She submits that a total discount of no more than 20 per cent ought to havebeen applied in relation to remorse, rehabilitation and the factors disclosed by the s 27report.[31] Ms Ewing also submits that Mr Napia was fortunate to receive a discount toreflect his rehabilitative prospects because there is little evidence to suggest Mr Napiahas taken steps to rehabilitate himself and he remains a significant risk for similaroffending in the future. In addition, Ms Ewing points out that Mr Napia hasaccumulated several previous convictions in both the Youth and District Court. Thisfact 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. Itdemonstrates that he was brought up in a home environment in which his mother wasselling drugs and supplying friends and associates with both alcohol and drugs. Thisresulted in Mr Napia suffering neglect, both physical and emotional. In addition, it islikely that Mr Napia was exposed not only to physical neglect but also to violence atthe hands of others.[33] Mr Napia was also isolated from positive role models because his father wasabsent from his life between the age of 6 and 15 years. Mr Napier began living withhis 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 andalcohol. As a result, and not surprisingly, Mr Napia was exposed to the use of bothdrugs and alcohol at a very early age. This has significantly impaired Mr Napia'swellbeing 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 andthe trauma and discourse he has suffered over the years have supported andaided Mr Napia to continue to make bad choices and decisions that havenegatively impacted his mental health is well described throughout thisassessment [sic] and articulates the issues he has faced from a child to hisadulthood.The culmination of all these factors and Mr Napia's lack of understanding ofright from wrong explain the connection to culpability as he demonstrateslittle competence in effective self-health management resulting in reacting theonly 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 thefollowing paragraph of his sentencing remarks:4[32] Out of this, Mr Napia, and it might be hard for you to hear this andyour whanau who are listening, but I find that your childhood had significantdeprivation. In particular, you were exposed to first cannabis, then synthetics,then methamphetamine, and that was almost all you knew. Also, your motheris an alcoholic. Your father was out of your life for nine years. Your motherwas not able to support you emotionally or educationally, neither was yourNan when you went to live with her. The end result is that I find a significantcausal connection between your deprived childhood and in particular yourawful exposure to drugs and what happened over these two weekends in4 R v Napia, above n 1.December. Whilst I could not discount your offending for self-inducedintoxication, I do find that your deprived childhood has resulted in you beingin this state that resulted in this offending. I find that this reduces yourculpability and I make a deduction of 25 percent for that.[35] Ms Ewing submits that any causal link between Mr Napia's present offendingand the factors identified in the s 27 report is weak. She contends that, in reality, thes 27 report demonstrates no more than that Mr Napia had early exposure to alcoholand drugs, and that his intoxicated state in December 2017 was the driver of his presentoffending. She argues this is insufficient to justify the Judge applying a deduction of25 per cent. Ms Ewing submits that, standing alone, the factors identified in the s 27report could not justify a discount of more than ten per cent.[36] I agree with the Judge's assessment, and the Solicitor-General accepts, thatsome allowance needed to be made for the factors identified in the s 27 report. Theprincipal issue of concern, as Ms Ewing points out, arises out of the role played byMr Napia's intoxication in the current offending. The pre-sentence report makes itclear that he was heavily intoxicated on both drugs and alcohol at the time of thepresent offending. Section 9(3) of the Act prohibits the Court from taking into accountby way of mitigation the fact that an offender was, at the time of committing anoffence, 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 beyondmerely the use and abuse of drugs and alcohol. Rather, they paint Mr Napia as beinga person whose deprived upbringing now effectively prevents him from making gooddecisions. The use of drugs and alcohol is just one of the manifestations of his currentmental state. I therefore consider the Judge was entitled to apply a discount of greaterthan 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 thefactors identified in the s 27 report to be too great. I do not consider a discount ofmore than 25 per cent to reflect all those factors could be justified. It follows that Iconsider the Judge applied a discount ten per cent greater than was justified by thesefactors.[38] On Mr Napia's behalf Mrs Ngapo-Lipscombe submits that the end sentence offour years six months imprisonment can be defended on the basis that the Judge wouldhave been justified in applying greater discounts to reflect Mr Napia's youth andprospects of rehabilitation. I do not accept that submission because I agree withMs Ewing that there is little evidence that Mr Napia currently shows any signs ofrehabilitation and his previous convictions count against any greater discount beinggiven to reflect his youth.[39] Applying an overall discount of 35 per cent rather than 45 per cent reduces thestarting point by four years three months. This produces a sentence of seven yearsnine months imprisonment before taking into account a discount of two years, or25 per cent, for guilty pleas.Result[40] The appeal is allowed. The concurrent sentences of four years six monthsimprisonment imposed on the charges of aggravated wounding are quashed.5 In theirplace I impose concurrent sentences of five years nine months imprisonment. Theconcurrent sentences imposed on the remaining charges are to remain in place.Lang JSolicitors:Crown Law, WellingtonNgapo-Lipscome Law, Tokoroa5 CRN 17063005978 and 5979.