Epere v Police
[2024] NZHC 1294
•22 May 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2024-412-06
[2024] NZHC 1294
BETWEEN ALBERT VICTOR EPERE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2024 Appearances:
B P Stephenson for the Appellant C E R Power for the Respondent
Judgment:
22 May 2024
JUDGMENT OF McHERRON J
[1] At the hearing of this matter I dismissed the appeal with reasons to follow. Here are my reasons.
[2] Albert Epere was convicted of dishonestly obtaining a document with intent to obtain a service,1 and dishonestly using a document with intent to obtain property.2 In respect of each offence, he was sentenced to 80 hours’ community work on a concurrent basis. Mr Epere appeals his sentence.3
[3] Mr Epere acquired a class 6 restricted competency-based training motorcycle assessment certificate and then used that document in his application for either issue or renewal of the relevant licence.4
1 Crimes Act 1961, s 228(1)(a); maximum penalty 7 years’ imprisonment.
2 Crimes Act 1961, s 228(1)(b); maximum penalty 7 years’ imprisonment.
3 Mr Epere initially pursued a conviction appeal also, but he abandoned that appeal.
4 New Zealand Police v Albert Victor Epere [2022] NZDC 20061 [Conviction judgment].
EPERE v POLICE [2024] NZHC 1294 [22 May 2024]
Background
[4] Mr Petre Kalinowski was a Waka Kotahi approved motorcycle instructor who abused his position by illegitimately issuing motorcycle licences to numerous people. These individuals, who number at least 180, did not sit the required practical assessment with the required equipment to prove they have the necessary skills to safely operate a motorcycle and interact with other road users. It is evident Mr Epere was prosecuted on the basis he received his certification as a beneficiary of Mr Kalinowski’s scheme.
[5] The majority of Mr Kalinowski’s customers were gang members of established organised criminal groups, their associates, or prospective recruits. Mr Kalinowski has been convicted of nearly 300 charges of fraud and is serving a sentence in excess of 30 months’ imprisonment.
[6] On 10 October 2022, in a judge-alone trial, Judge Flatley convicted Mr Epere.5 Judge Flatley found that, regardless of the specific nature of Mr Epere’s conduct (i.e., whether he completed the assessment at all or completed it on a non-qualifying motorcycle), “this document is fraudulent; there is no question in my mind about that.”6
[7] Judge Flatley decided that the elements of the charges were made out: “There is absolutely no way, in my view, that Mr Epere legitimately obtained the documents that he has obtained and utilised”.7
District Court decision under appeal
[8] On 28 February 2024, Judge Flatley sentenced Mr Epere. Judge Flatley acknowledged Mr Epere “had a history”, but that none of those previous convictions were of “particular relevance.8
5 Conviction judgment, above n 4, at [20].
6 At [20].
7 At [26].
8 New Zealand Police v Epere [2024] NZDC 5402 [Judgment under appeal] at [2].
[9] Mr Epere pleaded not guilty and proceeded to a judge-alone trial, so there was no credit available on sentencing.9 Judge Flatley accepted the offending was not the most serious offending of the type. His Honour found that similar decisions “indicate[d] starting points of imprisonment at a lower level, which were ultimately converted into community-based sentences”.10
[10] Ultimately, the Judge rejected Mr Epere’s submission that a fine was appropriate, and referred to his “history”, the “serious” nature of the offence, and the not-guilty plea as demonstrative of “tak[ing] no responsibility”.11
Approach to sentence appeal
[11] This appeal is to be determined under s 250 of the Criminal Procedure Act 2011. I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.12
[12] An appeal against sentence is akin to an appeal against a discretion. The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.13 However, this Court should substitute its own view if the sentence cannot be justified on the application of relevant sentencing principles.
[13] The requirement for the appellant to show there is a “material” error14 recognises “that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.”15
9 At [4].
10 At [7].
11 At [8].
12 Criminal Procedure Act 2011, s 250.
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
14 At [30].
15 Johnson v New Zealand Police [2023] NZHC 3748.
[14] If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.16
[15] I should not “tinker” or intervene with the end sentence if the end sentence is within range.17 The focus must be on the end sentence, not the process adopted to reach that end sentence.18
[16] In an analysis under s 250, the principled considerations of “manifestly excessive” or “manifestly inadequate” are “well-engrained” in the approach to sentence appeals.19 In borderline cases, “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”20
Arguments
For the appellant
[17] The appellant contests the sentence on the basis that the District Court erred in not taking into account “the fact the overwhelming majority of people who dishonestly used the services of Petre Kalinowski received the invalidation of their motorcycle licenses as the only punishment for their involvement”. This is the sole ground of appeal.
[18] Mr Stephenson contends that an order to come up if called upon, or discharge without conviction, is the more appropriate sentence,21 and that a sentence of community work was manifestly excessive in light of the sentences given to other individuals who used Mr Kalinowski’s services.
[19] He suggests this is a relevant consideration, in line with s 8(e) of the Sentencing Act 2002:22
16 Tutakangahau v R, above n 13, at [30].
17 R v Boyd (2004) 21 CRNZ 169 at [38].
18 Tutakangahau v R, above n 13, at [36].
19 At [33] and [35].
20 R v D (CA 253/2008) [2008] NZCA 254 at [66].
21 Sentencing Act 2002, s 110.
22 Sentencing Act 2002, s 8(e).
8 Principles of sentencing or otherwise dealing with offenders
…
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
…
[20] Mr Epere submits that there is nothing to distinguish him from the estimated 160 other individuals who had their motorcycle licence revoked but did not face further consequence. Mr Stephenson suggests Mr Epere’s history of dishonesty offending is historic, and of little weight in supporting a different approach to the other users of Mr Kalinowski’s scheme.
For the respondent
[21] Mr Power submits the parity principle, (s 8(e)), does not apply to those persons who were not charged, and there is no evidence of the sentences imposed on the other individuals who were charged with obtaining and using these fraudulent certificates.
[22] In making the argument that s 8(e) does not apply, Mr Power points me to the definition of “offender” at s 4 of the Sentencing Act and commentary in Adams on Criminal Law.23
[23] Broadly, the Police submit that there was no error, and the sentence was not manifestly excessive.
Analysis
[24] There is no tariff case for dishonesty-related offending because of the wide range of circumstances in which it can occur.24 Judge Flatley reviewed “similar” cases, but I have not been able to identify or review the cases the Judge found useful. Counsel did not provide me with any similar cases.
23 Matthew Downs (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA4.16.01].
24 Beaumont v New Zealand Police [2022] NZHC 472 at [37].
[25] A difficulty for Mr Stephenson, which he frankly acknowledged at the hearing, is that neither the District Court nor this Court has evidence of how other alleged offenders were dealt with and in particular whether and how prosecutorial discretion was exercised. A general principle that the Court on sentencing is obliged to consider how those allegedly involved in similar activity but who have not been charged have been dealt with out of Court would be both far-reaching and unappealing.
[26] I agree with Mr Power that s 8(e) of the Sentencing Act cannot apply, even by analogy, in the manner formulated by the appellant’s counsel. It was not a mandatory relevant consideration for the sentencing Judge to evaluate the decisions to not prosecute other individuals who benefited from Mr Kalinowski’s illegitimate qualifications and to sentence Mr Epere in light of those decisions. The test under s 8(e) can only extend to assessing whether those who have come before the Court as offenders have been sentenced similarly.
[27] I respectfully adopt the approach taken by Ellis J in the High Court in DNS Forest Products (2009) v Gisborne District Council.25 The District Court had rejected an argument that the parity principle in s 8(e) should inform the defendant’s sentence in relation to the non-prosecution of other entities involved very similar activity. Ellis J, in dismissing the conviction and sentence appeal, considered the application of s 8(e). Her Honour held:
[28] … it is quite clear that s 8(e) has no application in this case. Rightly or wrongly, neither [of the other entities] have been convicted of any offence (and so are not “other offenders”); neither has been sentenced or “otherwise dealt with” following a finding or plea of guilt.
[29] Nor am I able to agree that parity is a principle of wider application that can be applied even though [the other entities] have not been-and now cannot be-convicted and sentenced … It is neither desirable nor possible to second-guess that [prosecutorial] decision and proceed on the basis not only that [the other entities] were effectively guilty, but also that their level of culpability can be assessed.
[28] Therefore, on the basis of the appeal advanced, I do not find a material error in Judge Flatley’s decision to not consider the outcomes for those who were not dealt with by the Courts in any manner.
25 DNS Forest Products (2009) v Gisborne District Council [2020] NZHC 2437 at [21], [24], [26]– [30].
Result
[29] The appeal is dismissed. The District Court’s sentence is upheld. Mr Epere is required to complete his 80 hours’ community work.
McHerron J
Solicitors:
Ministry of Justice – Public Defence Service, Dunedin RP Bates, Crown Solicitor, Dunedin
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