Epere v Police - [2024] NZHC 1294

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Epere v Police

Details

AGLC: Epere v Police [2024] NZHC 1294
Case: [2024] NZHC 1294
Decision Date: 22 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Albert Victor Epere appealed against his conviction and sentence, which were imposed by the District Court. The appeal specifically addressed the sentence for offences of dishonestly obtaining a document with intent to obtain a service and dishonestly using a document with intent to obtain property. Mr Epere argued that the District Court erred in not considering the sentences of other individuals who had used fraudulent services provided by Mr Petre Kalinowski, a motorcycle instructor who had been convicted of fraud. The Court held that the appeal against sentence was to be determined under section 250 of the Criminal Procedure Act 2011, which required the Court to determine if there was a material error in the sentence imposed by the District Court.

The Court found that there was no error in Judge Flatley's decision to not consider the outcomes for those who were not dealt with by the Courts. The Court held that section 8(e) of the Sentencing Act 2002 could not apply to those individuals who were not charged, and there was no evidence of the sentences imposed on the other individuals who were charged. The Court rejected the argument that the parity principle should inform the defendant's sentence in relation to the non-prosecution of other entities involved in similar activity.

The appeal was dismissed. The District Court's sentence was upheld, and Mr Epere was required to complete his 80 hours' community work.

Orders