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| NOTE: EXTANT DISTRICT COURT SUPPRESSION ORDER CONCERNING THE TERMS OF THE MEDALS AGREEMENT |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 114/2011 [2012] NZSC 119 |
| JAMES JOSEPH KAPA |
| v |
| THE QUEEN |
| Hearing: 7 August 2012 |
| Court: Elias CJ, McGrath, William Young, Chambers and Glazebrook JJ |
| Counsel: M A Edgar for Appellant |
| Judgment: 20 December 2012 |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The sentence of reparation is quashed.
REASONS
Elias CJ, McGrath, William Young and Chambers JJ [1]
Glazebrook J [39]
ELIAS CJ, MCGRATH, WILLIAM YOUNG AND CHAMBERS JJ
(Given by Chambers J)
Theft of gallantry medals
On 2 December 2007 two men burgled the National Army Museum at Waiouru and stole 96 gallantry medals. The theft of the medals caused much consternation throughout the country: among the medals stolen were nine Victoria Crosses, including the VC and Bar awarded to Charles Upham, the only VC and Bar ever awarded to a fighting solider.
On 17 December 2007 the Commissioner of Police decided to offer a reward of up to $300,000 “for material information or evidence, which leads to the identity and conviction of any person or persons responsible for the burglary of the Waiouru Army Museum, the subsequent receiving of any proceeds from that burglary, and/or the recovery of the stolen medals”. The Commissioner further advised that he would “determine the amount of the reward and [would], if necessary, apportion payment where there is more than one claimant”. The Commissioner has over the years often offered rewards for information leading to the identification of criminals responsible for particular crimes.[1] On this occasion two people, Lord Ashcroft and Tom Sturgess, had offered to fund a reward if the Commissioner saw fit to offer one.
[1]An internet search reveals numerous examples of the police offering rewards for information over the past decade.
In January 2008 Christopher Comeskey, an Auckland lawyer, approached the police offering a deal under which the medals would be returned in exchange for the reward. Mr Comeskey did not disclose the names of his clients. The Commissioner and Mr Comeskey struck a deal. The medals were returned in February 2008. The police paid in excess of $200,000 under the agreement.[2]
[2]We shall call this agreement “the medals agreement”. Many of its terms are subject to a District Court suppression order. For that reason, we do not disclose the total amount paid under it.
The police continued to hunt for the thieves. Eventually they arrested James Kapa, the appellant, and Ronald Van Wakeren and charged them with burglary. First Mr Van Wakeren and later Mr Kapa pleaded guilty. It turned out that these men had been Mr Comeskey’s clients. It is now common ground that $100,000 of the reward money had gone to Mr Van Wakeren and another $100,000 to Mr Kapa.[3] Mr Van Wakeren repaid his share of the reward to the Commissioner, but Mr Kapa…
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- AGLC
- Kapa v R [2012] NZSC 119
- Case
- [2012] NZSC 119
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily focused on the interpretation of Section 32. Specifically, the court had to determine whether a sentence of reparation could be imposed on Mr Kapa for losses suffered by parties who were not considered victims under the definition provided in the legislation. The Crown argued that the language of Section 32 allowed for such a sentence, whereas Mr Kapa's legal team contended that the limitations set out in the legislation, particularly the requirement for victims in cases of emotional harm, should be interpreted to exclude non-victims from receiving reparation for loss of property.
The court found in favour of the Crown, holding that the plain language of Section 32 allowed for a sentence of reparation to be imposed on an offender for losses suffered by non-victims, provided the losses fell within the categories specified in subsection (1). The court reasoned that the specific exclusion of non-victims in cases of emotional harm did not extend to other forms of loss or damage, such as loss of property or consequential loss. This interpretation was supported by the absence of any explicit limitation on the types of loss that could attract a sentence of reparation when those losses did not involve emotional harm. Consequently, the court concluded that Mr Kapa's sentence of reparation for the loss of property suffered by Lord Ashcroft and Mr Sturgess was appropriately imposed under the terms of Section 32.
In light of the court's decision, it was determined that the sentence of reparation imposed on Mr Kapa was lawful. The court's ruling clarified that Section 32 permits reparation for non-victims in cases involving loss of property or consequential loss, as long as the emotional harm exclusion does not apply. This decision provides guidance on the scope of reparation sentences and the types of losses that can be addressed in such cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 32 read, at the relevant date, as follows:32 Sentence of reparation(1)A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer — (a) loss of or damage to property; or(b) emotional harm; or(c)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.(2)Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4.(3)In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage. (4)Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired. (5)Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.(6)When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure, or action as described in section 10.(7)The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage. (8)Nothing in section 320 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 applies to sentencing proceedings. Ms Markham, for the Crown, submitted the sentence of reparation was rightly imposed because Mr Kapa, through or by means of the offence of burglary, caused Lord Ashcroft and Mr Sturgess to suffer a loss of property (subs (1)(a)) or loss consequential on a loss of property (subs (1)(c)). She submitted the case could come within either paragraph, although she expressed a preference for para (a). Is this submission right? The essential premise of the Crown’s argument was that any “person” could potentially be the recipient of a sentence of reparation. The person did not need to be a victim, save in the case of reparation in respect of emotional harm, where subs (2) limited the range of recipients to victims. The presence of subs (2), Ms Markham said, strengthened the Crown’s argument that non-victims could recover in respect of loss of or damage to property or loss or damage consequential on loss of or damage to property.