Kapa v Police - [2017] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000023 [2017] NZHC 1748

BETWEEN
MICHAEL JASON KAPA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 July 2017

Appearances:

A Dawson and S Thorburn for Appellant
M J Grills for Respondent

Judgment:

26 July 2017

JUDGMENT OF GENDALL J

Introduction

[1] On 31 March 2017 the appellant was sentenced by Judge Phillips in the District Court at Dunedin after pleading guilty to one charge of driving with excess breath alcohol (EBA) causing injury (third or subsequent), and one charge of possession of an offensive weapon. The appellant was sentenced as follows:

(a) Excess breath alcohol (EBA) causing injury – 1 year 10 months’

imprisonment;

(b) Possession of an offensive weapon – two months’ imprisonment

(concurrent);

(c) Disqualification from driving for two years; and

(d) Ordered to pay $258 reparation.

KAPA v NEW ZEALAND POLICE [2017] NZHC 1748 [26 July 2017]

[2] By way of general factual background, as to the first charge, the appellant, who was on bail and had a breath reading at the time of 618mcg/L, had lost control of his vehicle whilst speeding and attempting to navigate a corner. After skidding for a considerable distance, the appellant’s vehicle struck a female pedestrian from behind. She had been walking on the sidewalk and was thrown into the air, and hit the windscreen landing on the ground in front of the appellant’s vehicle which had fortunately come to a stop as it had hit a power pole. She sustained moderately severe injuries. The second charge, possession of an offensive weapon, arose out of a separate circumstance, where the appellant started up a chainsaw indoors in his home, in the presence of his children, whilst intoxicated during an argument with his partner.

[3] The appellant appeals solely against the imprisonment part of his sentence, on the grounds that it was manifestly excessive. He contends that the starting point Judge Phillips adopted of two years four months on the EBA causing injury charge was too high and insufficient credit was given by him for mitigating factors. No challenge is made to the disqualification or reparation orders.

Principles on appeal

[4] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.1

[5] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of

Development:3

1 Criminal Procedure Act…

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 Kapa v Police

Details

AGLC: Kapa v Police [2017] NZHC 1748
Case: [2017] NZHC 1748
Decision Date: 26 July 2017

CaseChat Overview and Summary

In Kapa v Police, the appellant Michael Jason Kapa appealed against the imprisonment part of his sentence, arguing it was manifestly excessive. Kapa was sentenced in the District Court for driving with excess breath alcohol causing injury and possession of an offensive weapon, resulting in a two-year, six-month imprisonment term. The High Court assessed whether the sentence was manifestly excessive under s 250 of the Criminal Procedure Act 2011. Kapa argued that the starting point of two years, four months was too high and insufficient credit was given for mitigating factors. The court found that the starting point was properly available and that the discount for the guilty plea was adequate. The High Court dismissed the appeal, concluding that the sentence imposed was within range and not manifestly excessive.

The final orders of the court were that the appeal was dismissed, and Kapa's sentence would stand as determined by the District Court.

Orders