Kalepo v Police - [2013] NZHC 322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000408 [2013] NZHC 322

EPIROSA SOLIA KALEPO
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 22 February 2013

Appearances: Appellant in Person
K Lummis for the Respondent

Judgment: 26 February 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 26 February 2013 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

KALEPO V POLICE HC AK CRI-2012-404-000408 [26 February 2013]

Introduction

[1] Epirosa Kalepo appeals against a sentence of 200 hours community work imposed in the Manukau District Court on 16 October 2012 on the basis that the sentence is inappropriate in terms of s 121(3)(b) Summary Proceedings Act 1957 because she is a permanent resident of Australia. After being sentenced to 200 hours community work, Ms Kalepo returned to Australia and there signed the notice of general appeal in front a Justice of Peace in Parramatta, Sydney before filing it in the High Court. She has no counsel acting for her and flew back from Australia yesterday using funds advanced by her grandmother to appear in support of her appeal.

Background

[2] Over seven years ago, on 30 September 2005, Ms Kalepo entered guilty pleas to six relatively minor charges – breach of bail, possession of cannabis, possession of a pipe and three charges of shoplifting from Farmers, DFS Galleria and Countdown. She was convicted and remanded to 22 November 2005 for a reparation and pre- sentence report. On that date she was further remanded to 22 December 2005. However, the day before Ms Kalepo was due to appear next, the matter was brought on and further adjourned “Due to error in over booking”. Ms Kalepo was further remanded for sentencing on 28 February 2006. It is not apparent whether Ms Kalepo appeared on 21 December 2005, when the matter was brought on early. In any event, she did not appear for sentencing on 28 February 2006 and a warrant to arrest was issued.

[3] The Police laid one further information against Ms Kalepo on 3 November

2005. This related to another charge of shoplifting from Kmart on 19 October 2005. The information was never served on Ms Kalepo and a warrant to arrest was issued at the request of the prosecution on 5 May 2006.

[4] Approximately seven years later, on 12 October 2012, Ms Kalepo was arrested on warrant apparently when she returned to New Zealand. She appeared in the Manukau District Court on 12 October 2012 and pleaded guilty to the charge of

shoplifting on 19 October 2005. Ms Kalepo was then remanded on bail until

16 October 2012 for sentence on that charge and the six charges to which she had pleaded guilty in September 2005.

[5] On 16 October 2012, Ms Kalepo again appeared in the Manukau District

Court. The notes of Judge M E Perkins on sentencing reads as follows:

Ms Kalepo, your record and this current offending shows that you are…

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 Kalepo v Police

Details

AGLC: Kalepo v Police [2013] NZHC 322
Case: [2013] NZHC 322
Decision Date: 26 February 2013

CaseChat Overview and Summary

Epirosa Kalepo appealed against a sentence of 200 hours of community work imposed in the Manukau District Court on 16 October 2012. Kalepo argued that the sentence was inappropriate because she is a permanent resident of Australia. After being sentenced, Kalepo returned to Australia and signed a notice of general appeal in front of a Justice of the Peace in Parramatta, Sydney before filing it in the High Court. Kalepo has no counsel acting for her and flew back from Australia to appear in support of her appeal.

The court had to decide whether the sentence of 200 hours of community work was appropriate under s 121(3)(b) of the Summary Proceedings Act 1957, given that Kalepo is a permanent resident of Australia. The court also needed to determine if the sentencing judge had been properly informed of Kalepo's circumstances, specifically that she had been living in Australia for the past six years and had significant child care responsibilities. Additionally, the court had to consider whether the sentence should be replaced with a fine, which is the preferred sentence under s 13 of the Sentencing Act 2002.

The court found that the District Court Judge did not differentiate or apportion the community work hours between the partial remission of Kalepo's fines and the minor offences to which she had pleaded guilty. It was not apparent what part of the community work sentence was attributable to the remission of Kalepo’s fines and what sentence she received for the offences on which she was appearing for sentence. The court also found that there was an obvious failure on the part of the duty solicitor to properly convey Kalepo’s circumstances to the sentencing judge, which misled him into thinking that Kalepo wanted to immigrate to Australia when she had in fact immigrated to Australia in 2006 and was permanently resident in Sydney, with significant child care responsibilities. In those circumstances, a sentence of community work, at whatever level, was inappropriate. The sentence of 200 hours community work imposed in the Manukau District Court on 16 October 2012 was quashed and replaced with fines on each of the four charges of shoplifting, the charge of possession of cannabis, and the total fines and costs to be paid were $1,163.45, to be paid in instalments of $100 per month commencing on 1 April 2013.

Orders