Epere v Police - [2019] NZHC 336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-420

[2019] NZHC 336

BETWEEN
TEUA EPERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 March 2019

Appearances:

K S Holden for Appellant

B Charmley for Respondent

Judgment:

5 March 2019

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 5 March 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

EPERE v NEW ZEALAND POLICE [2019] NZHC 336 [5 March 2019]

[1] Mr Epere pleaded guilty in the District Court to 18 charges involving different types of offending. On 20 November 2018 Judge Cocurullo sentenced him to an effective term of 18 months imprisonment.1 He appeals against sentence on the basis that the Judge erred in applying uplifts to the initial starting point for the sentence, and this led to an end sentence that was too high. He also argues the Judge ought to have converted the sentence to one of home detention.

Background

[2]Mr Epere was sentenced on the following charges:

(a)Receiving stolen property (a motor vehicle);2

(b)Unlawful taking of a motor vehicle (x 2);3

(c)Unlawful getting into a motor vehicle (x 5);4

(d)Driving whilst disqualified, third or subsequent (x 4);5

(e)Possession of methamphetamine;6

(f)Failing to attend court x 2;7 and

(g)Breach of release conditions x 3.8

[3] The charges reflected a raft of offending committed by Mr Epere between May and September 2018. For the most part it involved him unlawfully taking or getting into motor vehicles belonging to others. Mr Epere was disqualified from driving

1      New Zealand Police v Epere [2018] NZDC 24004.
2      Crimes Act 1961, ss 246 & 247. Maximum penalty seven years imprisonment.
3      Crimes Act 1961, s 226(1). Maximum penalty seven years imprisonment.
4      Crimes Act 1961, s 226(2). Maximum penalty two years imprisonment.
5      Land Transport Act 1998, ss 32(1)(a) & 32(4). Maximum penalty two years imprisonment or a fine not exceeding $6,000.
6      Misuse of Drugs Act 1975, ss 7(1)(a) & 7(2)(a). Maximum penalty six months imprisonment and/or a fine not exceeding $1,000.
7      Bail Act 2000, s 38(a). Maximum penalty one year imprisonment or a fine not exceeding $2,000.
8      Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a fine not exceeding
$2,000.

during this period so he also committed the offence of driving whilst disqualified when he unlawfully took the vehicles. After he had been arrested, he failed to attend Court on two occasions. On three occasions he also breached prison release conditions by failing to report as required. The charge of being in possession of methamphetamine was laid after the police searched Mr Epere on 28 May 2018 after they were called to his address to deal with an unrelated matter. They found a plastic bag containing .1 of a gram of methamphetamine in his jeans pocket.

The sentence

[4] The Judge took the lead charges as being those relating to the…

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 [2019] NZHC 336
Case: [2019] NZHC 336
Decision Date: 5 March 2019

CaseChat Overview and Summary

The appeal in Epere v Police was heard in the High Court of New Zealand, Auckland Registry. The appellant, Mr Epere, appealed against his sentence on the basis that the sentencing judge had erred in applying uplifts to the initial starting point for the sentence, which led to an end sentence that was too high. Additionally, Mr Epere's counsel argued that the sentencing judge should have imposed a sentence of home detention rather than imprisonment.

The legal issues before the court were whether the sentencing judge erred in applying uplifts to the initial starting point for the sentence, and whether the sentencing judge should have imposed a sentence of home detention instead of imprisonment. The court had to determine if the end sentence was wrong in principle or manifestly excessive.

The court found that the sentencing judge was entitled to add a separate uplift to reflect the charges of driving whilst disqualified, as they were distinct from the charges of unlawfully taking or getting into motor vehicles. While it may be arguable that an uplift of six months for the charges of unlawfully getting into motor vehicles was outside the available range, the court considered that the end sentence of 18 months imprisonment was not outside the available range, given Mr Epere's numerous previous convictions and the nature of the present charges. Regarding the imposition of a sentence of home detention, the court was satisfied that the sentencing judge did not err in exercising his discretion against such a sentence. The court found that Mr Epere's history of breaching prison release conditions and driving whilst disqualified, along with the duration and nature of the conduct giving rise to the present charges, meant he was likely to find it very difficult to comply with a sentence of home detention.

In conclusion, the appeal against sentence was dismissed. The court found that the sentencing judge did not err in applying uplifts to the initial starting point for the sentence, and that the end sentence of 18 months imprisonment was not outside the available range. Additionally, the court was satisfied that the sentencing judge did not err in exercising his discretion against a sentence of home detention.

Orders