KAPENE v POLICE [2016] NZHC 3036

KAPENE v POLICE [2016] NZHC 3036 [13 December 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI 2016-485-86[2016] NZHC 3036BETWEEN WIPUHARA KAPENEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2016Appearances: S Barnes for the AppellantR H De Silva for the RespondentJudgment: 13 December 2016ORAL JUDGMENT OF MALLON JIntroduction[1] Mr Kapene pleaded guilty and was convicted of one charge of injuring with intent to cause grievous bodily harm1 and two charges of assault.2[2] He was sentenced to two years and four months imprisonment and given a first strike warning.3 He appeals against his sentence on the grounds that the sentence is manifestly excessive. The Judge is said to have adopted a starting point for the lead charge that was too high, erred in relation to his approach on the other two offences, and allowed an inadequate discount for his guilty plea.Circumstances of offending[3] The offending related to two occasions. The first occasion was on 23 July 2015 when Mr Kapene had been drinking with two associates after work at a bar. He went into the bathroom where he had a confrontation with another patron (victim1 Crimes Act 1961, s189(1) (maximum penalty 10 years imprisonment).2 Crimes Act 1961, s 196 (maximum penalty one year imprisonment).3 Police v Kapene [2016] NZDC 15583.one). Around half an hour later an associate of victim one approached Mr Kapene to speak to him about the confrontation. Mr Kapene immediately went over to the victim and punched him in the side of his head with a closed fist. Victim one fell heavily onto the floor from a standing position. This gave rise to the first assault charge.[4] The second occasion took place in the early hours of 15 November 2015. Mr Kapene was drinking at a bar in Masterton. He approached a patron (victim two) who was standing in the smoking area with his friends. He punched victim two in the side of the head. This was completely unexpected by victim two, and he therefore had no opportunity to anticipate or protect himself from the punch thrown by Mr Kapene. He was knocked to the floor. This gave rise to the second assault charge.[5] About 20 minutes later, as the bar was closing, Mr Kapene's third victim waswalking by himself on the street outside the bar endeavouring to catch up with his friends. Without warning, Mr Kapene stepped in front of victim three and punched him once in the face. Victim three fell backwards on to the footpath. He was bleeding, unconscious and unresponsive. The police arrived about one minute later and rendered first aid. He was then transported by ambulance to the hospital where he stayed overnight. He sustained a cut to his head and a large haematoma as a result of falling backwards on to the footpath. He also sustained facial abrasions, cuts and swelling from the punch. A cut to his lip required stitches. Because of concussion, victim three required a few days off work. He has since fully recovered and has suffered no long term consequences. This gave rise to the charge of injuring with intent to cause grievous bodily harm.Mr Kapene's personal circumstances[6] Mr Kapene was 19 years old at the time of this offending. He is a patched member of the Black Power gang. He has a limited conviction history and had not previously been sentenced to imprisonment. At the time of the offending he was subject to a sentence of intensive supervision with special conditions. This was for a range of offending (driving offences, disorderly behaviour, shoplifting and non-compliance with court orders) for which Mr Kapene was sentenced on 21 July 2015. The pre-sentence report writer considered Mr Kapene's attitude to court orderedrestrictions and sentences ranged from highly cooperative to highly uncooperative. He was assessed as having a high risk of reoffending. The writer also noted Mr Kapene had no employment history and was in need of tuition for literacy and numeracy.[7] The sentencing judge also had a detailed psychological report which had been prepared for the Court. The report described Mr Kapene's difficult upbringing,including his exposure to violence, drugs and alcohol from a young age. He was expelled from school at aged 13. He had struggled to cope with the death of his baby son in 2013 and the subsequent deterioration of his relationship with the baby'smother.[8] The psychological report further described Mr Kapene's difficulties in copingin the prison environment. He was angry and violent and believed people were trying to attack him. He has experienced visual and auditory hallucinations, but was reluctant to take anti-psychotic medication in prison as he felt this rendered himself less capable of being able to defend himself from other gang members. I am told from his counsel today that he has spent a lot of time in isolation but he is back in the unit now. Mr Kapene expressed to the psychologist in the report before the Court that he no longer wished to be involved in the gang world and was supported in this by his koro. His counsel today makes the point of the difficulties for him escaping the path assigned to him by others, particularly in the prison environment.District Court decision[9] The lead charge was injuring with intent to cause grievous bodily harm. The Judge regarded the offending as a moderately serious street attack; it did not involve weapons and did not cause long-lasting harm. It was a one-punch attack, rather than a frenzied attack, and there were no kicks. However, the attack was unprovoked and involved a very hard punch to the head with the potential for fatal consequences. The Judge described the victim as vulnerable because he did not have the chance to protect himself or to run away.[10] In light of these factors, the Judge regarded this offending as towards the top of band one of Taueki.4 This would have meant a sentence of somewhere between four and five years imprisonment, but this needed to be adjusted down because of the lower maximum penalty that applies to the lead offence.5 The Judge decided a three and half year starting point on the lead charge was appropriate.[11] Taking into account totality, the Judge considered the starting point should beuplifted by five months for the two assault charges. He considered Mr Kapene'scriminal history did not warrant any uplift. He uplifted the sentence by three months because the offending occurred while Mr Kapene was subject to the intensive supervision sentence. Before mitigating factors this gave a sentence of four years and two months imprisonment. The Judge decided to round that down in MrKapene's favour to four years.[12] The Judge considered the appropriate discount for Mr Kapene's guilty pleawas 15 per cent, bringing the sentence down to 41 months. He then reduced thesentence by six months for Mr Kapene's youth and then a further seven months because Mr Kapene had spent seven months on electronically monitored bail subject to a 24-hour curfew. This meant an end sentence of two years and four months imprisonment on the lead charge. The Judge imposed concurrent sentences of four months imprisonment on each of the two assault charges.Appeal[13] Mr Kapene contends the starting point of three and a half years imprisonment on the lead charge was too high. I agree. Of the aggravating features set out inTaueki, only one, namely an attack to the head, was present in this case.6 The victim was not vulnerable in the way described in Taueki.7 He was not a child, it is not said there was a significant disparity in size and strength between Mr Kapene and him, and, once he was rendered defenceless by the force of the blow, no further attack4 R v Taueki [2005] 3 NZLR 372 (CA).5 The Judge noted the lead offence had a maximum penalty of 10 years, compared with Taueki, above n 4, (14 years) and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 (five to seven years).6 Taueki, above n 4, at [31].7 At [31](i).took place. Although the force of the blow could have led to fatal consequences, it did not do so and nor did it lead to any lasting injury.[14] The presence of one aggravating feature would put the offending a little above the bottom of band one of Taueki. That is confirmed by the two examples of street attacks set out in Taueki.8 This was closer to the less serious example, described as involving an impulsive attack on a public street, where no weapons are involved and the harm caused to the victim does not have a lasting effect. In my view that means a sentence of three to four years, rather than the four to five years taken by the Judge, before some adjustment downwards because of the lower maximum penalty that applies.[15] Making the same adjustment as the Judge, that would mean a starting point of two years and six months imprisonment, rather than the three years and six months taken by the Judge. By way of comparison, the offending was less serious thanFaulkner, Stewart, Ji and Kulimoeanga.9 It was less serious than a one punch manslaughter case.10 It has similarities to Elizalde and Dean, although they involved injuring with intent to injure11 which have a lesser maximum penalty than the charge here.12[16] Mr Kapene contends the Judge erred in uplifting the starting point to take account of the two additional assaults and to have then imposed concurrent sentences for those assaults. However the Judge's approach was orthodox. Where concurrentsentences are imposed, the most serious offence must receive the penalty that is appropriate for the totality of the offending, and the lesser offences must receive the penalty appropriate to those offences.13 The Judge's uplift of five months took into8 At [37](a).9 Faulkner v R [2016] NZCA 315 (starting point five year imprisonment); Stewart v R [2016] NZCA 217 (starting point five years imprisonment); Ji v R [2015] NZCA 308 (starting point four years imprisonment); and Kulimoeanga v R [2016] NZCA 129 (starting point four years imprisonment – two and a half to three years was appropriate for the injuring with intent charge and 12-18 months uplift for firearms charges).10 R v Palmer [2016] NZHC 1962 (starting point four years imprisonment); Murray v R [2013] NZCA 177 (starting point five years imprisonment); and R v McFarland [2014] NZHC 1106 (starting point four years imprisonment).11 Crimes Act 1961, s 189(2) (maximum penalty five years imprisonment).12 Elizalde v Police [2015] NZHC 959 (starting point 21 months imprisonment); and Dean v Police[2014] NZHC 1542 (starting point two years imprisonment).13 Sentencing Act 2002, s 85(4).account totality. The Judge has then set the concurrent sentences at the penalty appropriate individually to those offences. While some judges may have uplifted the sentence by slightly less than five months, it cannot be said that the uplift was manifestly excessive, particularly when the Judge then effectively further adjusted for totality by taking a further two months off the starting point. In effect that meant an uplift of three months for the two assault charges.[17] Mr Kapene contends the Judge ought to have applied a 20 per cent discount for his guilty plea. This was the discount proposed by the prosecution at the time of sentencing. Although the guilty plea was not formally entered until the case review hearing, the discussions with the police led to a very early indication that the lead charge was accepted provided the other charges were amended appropriately. Counsel for the respondent accepts that a greater than 15 per cent discount for a guilty plea entered at this stage and in these circumstances is relatively common. I consider that the Judge could have applied a 20 per cent discount however I am not able to say that a 15 per cent discount was out of the available range. Moreover, or particularly that is because the Judge effectively allowed a greater discount than 15 per cent because he had already reduced the starting point, as I have mentioned, by two months and he applied the guilty plea discount before the discount for youth.14[18] There is no other challenge to the Judge's approach to sentencing. Accordingly, taking a starting point of two years and six months and the Judge'suplifts and discounts, the end sentence is 19 months or one year and seven months imprisonment:Starting point 2 years 6 months(30 months)Uplift – totality 5 monthsUplift – offending while sentenced 3 months38 monthsDiscount – youthDiscount – Guilty Plea (15%) rounded up (5.7 months)6 monthsDiscount – Youth 6 monthsTime spent on EM bail 7 monthsEnd sentence 19 months1 year 7 months14 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters) at [SAC3]-[SAC3A]; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72]- [74].[19] That compares with the two years and four months sentence imposed by the Judge. I am satisfied that the high starting point on the lead charge led to an end sentence that was manifestly excessive.[20] As the end sentence is one year and seven months, consideration needs to be given to the period of standard conditions and also whether to impose special conditions and the period for those. The material before the Court indicates Mr Kapene has complex difficulties. His counsel refers to his special needs which are best addressed by an ongoing relationship with a psychologist with whom he can build trust. His counsel indicates that he did manage to build some trust with the psychologist who prepared the report for him which was before the Court. His counsel has also discussed with the appellant avenues for funding to enable him to utilise the services of a psychologist once he is released from prison.Result[21] The appeal is allowed. The sentence of two years and four months imprisonment on the charge of injuring with intent to cause grievous bodily harm is quashed. It is replaced with a sentence of one year and seven months imprisonment. The concurrent sentences on the other charges remain. The sentence is subject to the standard conditions. It is also subject to the special conditions set out in the presentence report. The standard and special conditions are to apply for six months from the sentence expiry date.15 The special conditions are as follows:(a) to attend any assessment for departmental interventions/programmes as may be instructed by the probation officer and complete recommendations made as a result of the assessment to the satisfaction of the probation officer;(b) attend an assessment for alcohol and drug use and complete any recommendations as may be instructed by, and to the satisfaction of, the probation officer;15 Sentencing Act 2002, s 93.(c) to attend a parenting programme as may be directed by a probation officer;(d) attend an assessment for education, training and employment and complete any recommendations as may be instructed by, and to the satisfaction of, the probation officer;(e) attend any other appointment/programme/counselling, including psychological appointments, as may be instructed by, and to the satisfaction of, the probation officer.Mallon J