Papa v R
| Jurisdiction | New Zealand |
| Judge | Churchman J |
| Judgment Date | 04 February 2020 |
| Neutral Citation | [2020] NZHC 80 |
| Docket Number | CRI-2019-441-44 |
| Court | High Court |
[2020] NZHC 80
Churchman J
CRI-2019-441-44
IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE
Criminal Sentence — appeal against sentence — assault with intent to injure — occurred in prison setting — whether too much priority was placed on the principle of deterrence — Sentencing Act 2002
M J Phelps for Appellant
L M Marshall for Crown
On 5 December 2019, Mr Papa was sentenced by Judge Rea in the Napier District Court to one year four months' imprisonment after he pleaded guilty to a charge of assault with intent to injure. 1 The maximum penalty for this offence is three years. Mr Papa also pleaded guilty to assaulting a prison officer in the execution of her duty. 2
Mr Papa appeals the sentence on the ground that the Judge made an error of law in imposing a sentence of imprisonment as opposed to home detention, as a result of giving too much priority to the principle of deterrence without properly considering any of the other countervailing sentencing purposes.
The Crown opposes the appeal, submitting that the judge did not err and that a sentence of imprisonment rather than home detention is appropriate in the circumstances of this case.
On 21 October 2017, Mr Stewart, Mr Papa, Mr Paul and two others were involved in an assault in Hawkes Bay Regional Prison. All five were affiliated with the Mongrel Mob and there had been rising tensions in the particular unit of the prison due to the presence of rival gang members.
At 10:45 am prison officers noted that a particular cell in the unit, occupied by an inmate affiliated to Black Power, was closed and guarded by Mr Paul. They moved towards the cell to investigate but Mr Paul would not let them open the door to the cell. They were able to see through the window that Mr Papa, Mr Stewart and another were kicking the complainant, Mr Nathan, in the head while he was lying on the floor.
After a passage of time, the group carrying out the assault moved away from the cell, after which the complainant came out of the cell, making further challenges to the group. This led the group to rush back towards the cell in response to the complainant's challenges, while Corrections officers tried to prevent the group from entering back into the cell. In this altercation, Mr Papa rushed the Corrections officers to try to get back into the cell, causing one officer to suffer a broken finger. The complainant suffered multiple facial lacerations, significant bruising to his eyes, and concussion.
Mr Stewart, Mr Paul and Mr Papa all pleaded guilty to assault with intent to injure, while Mr Papa also pleaded guilty to the additional charge of assaulting a prison officer in the execution of her duty.
The Judge sentenced Mr Stewart, Mr Paul and Mr Papa together. He acknowledged that it had taken some time for this matter to reach the sentencing stage, noting that the defendants had earlier elected a trial by jury on more serious charges, but this had been resolved shortly before the trial was due to commence.
In considering an appropriate sentence for the offence, the Judge firstly noted that the offending “had a gang base to it”, 3 and was worsened by the decision of the defendants to enter into the cell as a group to assault the complainant in a space where he had nowhere to go.
Secondly, the Judge referred to the conviction histories of Mr Stewart, Mr Paul and Mr Papa, all three having a significant history of violence. He noted that Mr Papa had a significant criminal conviction history, including violent offences and 27 breaches of sentences or orders, leading him to conclude that the defendant did not respond well to sentences that he had a choice about. 4
The Judge indicated that violence in a prison setting must be dealt with in a way that denounces the activity, and that cases at appellate level have consistently held that people who are prepared to use violence in this situation must receive a custodial sentence. He observed that the imposition of anything short of a reasonably substantial custodial sentence would simply provide encouragement for others to commit prison violence. 5
Consequently, the Judge considered that the starting point for this level of violence, based on the offence, was 18 months' imprisonment. The Judge uplifted the sentence by three months to reflect the past history of the defendants, leading to a starting point of 21 months' imprisonment. He considered that each defendant was entitled to a discount of between 15 and 20 per cent for the fact that they pleaded guilty, leading to an end sentence of one year four months' imprisonment. 6
With regard to Mr Papa's additional offence of assaulting a prison officer, the Judge noted that as the appellant had pleaded guilty to the charge, had spent quite a bit of time on EM bail, and that the charge was to be treated as all part of the one
The Judge also imposed release conditions running six months beyond the sentence expiry date for Mr Papa and Mr Stewart, to be determined by the probation officer. 8
The Judge considered that given the past history of the defendants and the nature of the offending home detention was not adequate to meet the seriousness of the offence or to denounce the conduct that occurred. 9
This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed. 10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached. 11
Section 7 of the Sentencing Act 2002 sets out the purposes for which a Court may sentence an offender. 12 These include denouncing the conduct in which the offender was involved, 13 deterring the offender or other persons from committing the same or similar offence, 14 and assisting in the offender's rehabilitation. 15
The Court of Appeal has indicated that there is no presumption for or against the commutation of a short-term sentence of imprisonment to home detention. 16 What is called for is an exercise of sentencing discretion in a way that gives effect to the purposes and principles under ss 7 and 8 of the Sentencing Act 2002. 17 This approach was affirmed in Palmer v R, where the Court of Appeal also held that in marginal or borderline cases, the margin of appreciation extended to judges is usually significant. 18
With regard to specific cases concerning issue of deterrence and denunciation in a prison violence case, the Court of Appeal in R v Kepu held that in the prison environment, particularly where actual violence occurs to prison officers, issues of deterrence and denunciation are at the forefront of the principles that the Courts must apply when offenders are sentenced. 19
In R v Connelly, the Court of Appeal ruled that re-offending while in prison, particularly violent re-offending, must have significant consequences for the offender, notwithstanding that the outcome is a very lengthy period of imprisonment. 20
In Tryselaar v R, the Court of Appeal made a similar observation, ruling that offending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response. 21
The submissions by Mr Phelps, counsel for the appellant, are similar to the submissions by counsel for Mr Stewart (Mr Papa's co-defendant) in that the principal point of appeal is that the Judge erred in imposing a sentence of home detention. This is advanced under two grounds:
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(a) that the Judge gave complete priority to deterrence without having regard to any of the countervailing purposes of the sentence; and
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(b) that the Judge erred in declining to impose a sentence of home detention.
To the extent that Mr Phelps' submissions differed from those of Mr Willis, it was to assert that rather than the sentencing Judge having applied insufficient weight to the principle of rehabilitation, he effectively disregarded it altogether.
With regard to the first ground, Mr Willis acknowledged the need for a “stern response” to offending within the prison environment, particularly for violent offences, placing the principles of denunciation and deterrence at the forefront of a sentencing Court's consideration, as observed by the Court of Appeal in Tryselaar v R. 22 Counsel also acknowledged that this approach had been endorsed in other cases, including R v Connelly, and R v Kepu. 23
Counsel submitted that despite the stern approach outlined by the Court of Appeal, recent jurisprudence has increasingly recognised the fact that incarceration can breed, or factor into, violent behaviour. He gave as an example, the decision in Vincent v R, where the Court of Appeal allowed a discount of six months to the appellant's sentence to reflect his circumstances, namely that he had been in prison for at least seven years at the time of the offending and had become institutionalised: 24
We have also reached the view that the Judge ought to have made some allowance for several mitigating factors. First, while we accept that the nature of Mr Vincent's attack on the victim carried very serious...
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