Kapa v The Queen
[2011] NZCA 504
•3 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA407/2010 CA572/2010 [2011] NZCA 504 |
| BETWEEN JAMES JOSEPH KAPA |
| AND THE QUEEN |
| Hearing: 31 August 2011 |
| Court: Stevens, Ronald Young and Venning JJ |
| Counsel: M A Edgar for Appellant |
| Judgment: 3 October 2011 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal against the total sentence of 14 years and six months imprisonment is allowed.
BWe impose instead a total sentence of 13 years and three months imprisonment as follows:
(a)the sentence of six years imprisonment relating to the burglary of the National Army Museum is quashed and instead a sentence of four years and nine months imprisonment is imposed;
(b)all other sentences are confirmed including their cumulative effect; and
(c)the sentence of reparation in the sum of $100,000 in respect of the burglary of the National Army Museum is confirmed and the appeal in respect thereof is dismissed;
(d)the total minimum period of imprisonment of seven years and nine months is quashed; and
(e)we impose instead a total minimum imprisonment of six years and six months as follows:
(i)a minimum period of imprisonment of two years and nine months in relation to the sentence of four years and nine months imprisonment on the charge of burglary of the National Army Museum; cumulative on
(ii)a minimum period of imprisonment of two years, nine months in relation to the sentence of five years and six months imprisonment in respect of the charges in respect of Operation Prince; cumulative on
(iii)the standard non-parole period of one year of imprisonment with respect to the burglary charges for Operation Pokie.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellant, James Joseph Kapa, pleaded guilty to various charges arising from two major police investigations – Operation Prince and Operation Valour. Operation Prince concerned a total of eight offences involving burglary and dishonesty against a company in Waitakere, Charles Parsons Textiles Ltd. This offending was carried out with two accomplices, Mr Ronald Van Wakeren and Ms Debra Malam. Operation Valour concerned the burglary of the National Army Museum at Waiouru on 2 December 2007 and the theft of 96 gallantry medals with an estimated value of over $5 million.
On 4 June 2010 the appellant was sentenced by Judge Joyce QC for the Operation Prince offending for a total of five years and six months imprisonment with a minimum period of imprisonment (MPI) of two years and nine months.[1] On 26 August 2010 the appellant was sentenced by Judge Hubble for his part in the Operation Valour offending to six years imprisonment with an MPI of four years.[2] At the time he was sentenced on both these matters, the appellant was serving a sentence of three years and six months imprisonment for offences of burglary and money laundering arising out of Operation Pokie.[3] The sentence was later reduced to three years imprisonment when the appellant successfully appealed against conviction on the money laundering charges.[4] The sentences for both the Operation Prince and Operation Valour offending were imposed cumulatively on the Operation Pokie sentence. The result was that the appellant received an effective sentence of 14 years, six months imprisonment, together with a total non-parole period (including the standard non-parole period of one third of the sentence for Operation Pokie)[5] of seven years and nine months imprisonment.
[1] R v Kapa DC Auckland CRI-2008-004-5302, 4 June 2010 [Operation Prince sentencing].
[2]R v Kapa DC Auckland CRI-2008-083-2487, 26 August 2010. The appellant also received a sentence of reparation in the sum of $100,000, to which reference will be made below.
[3] R v Kapa DC Auckland CRI-2006-4-9486, 3 June 2009.
[4] Kapa v R [2010] NZCA 514.
[5] See s 84(1) of the Parole Act 2002.
The appellant appeals against his sentences for the Operation Prince and Operation Valour offending on the grounds that they are manifestly excessive. He contends that the overall sentence is manifestly excessive on the basis that the three sentences (including the MPIs) in combination failed properly to take into account the totality principle. The appellant also contends that the sentences failed to have regard to the respective roles of the appellant and Mr Van Wakeren. Specifically, the appellant challenges the sentence of reparation in the sum of $100,000 in respect of the reward money paid in exchange for the return of the stolen medals.
Counsel for the respondent accepts that the total sentence imposed on the appellant was manifestly excessive both with regard to the totality principle and in the light of the sentences received by the co-offender Mr Van Wakeren. Counsel for the appellant in turn accepts that a final sentence of ten years imprisonment for the totality of the appellant’s offending in Operations Pokie, Prince and Valour, with a combined MPI of five years, would be within the appropriate range.
Factual background
Operation Pokie
The appellant was found guilty following a jury trial of four burglary charges and eight money-laundering charges. The charges arose from the appellant’s involvement in a criminal enterprise, in which Mr Van Wakeren was also a participant, targeting commercial premises in Auckland and the Waikato and stealing money from gaming machines. Mr Van Wakeren was convicted of two charges of burglary and two charges of money laundering following trial by jury. Both charges of burglary related to occasions where Mr Van Wakeren had accompanied the appellant. On the first occasion, in November 2003, the offenders entered a commercial premise in Auckland by cutting through the roof. They broke open 18 gaming machines to remove just less than $12,000 in notes and coins. On the second occasion, in July 2004, the offenders removed $12,000 in notes and coins from a different premises. In the intervening period, the appellant and another accomplice had burgled two further premises, removing around $9,000 in total from the gaming machines.
For his part in the offending, Mr Van Wakeren was sentenced to imprisonment for one year[6] but cumulative on other offending.[7] Judge Hubble sentenced the appellant to imprisonment for three years, six months for all of the Operation Pokie offending. As noted above this was later reduced to a term of three years imprisonment. The adjustment to the sentence for the Operation Pokie burglary convictions did not occur until 15 November 2010 when this Court released its judgment on the appellant’s successful sentence appeal due to the discharge of the money laundering charges. Importantly, this was following the sentencing of the appellant for the Operation Prince and Operation Valour offending. This sentencing had taken place in June and August 2010 before different sentencing judges.
Operation Prince
[6]R v Van Wakeren DC Auckland CRI-2006-114-9486, 22 October 2009 at [54]. Mr Van Wakeren had earlier plead guilty to a third charge of burglary in relation to the Operation Pokie charges. He was sentenced to eight months imprisonment in February 2004 for this offence.
[7]See Van Wakeren v R [2011] NZCA 503.
This offending began in early October 2006 when the appellant and a co-offender, Ms Malam, were given false identity documents, including false passports, by Mr Van Wakeren, which they used to open six bank accounts with Kiwibank. Later that month the appellant and Ms Malam went to the premises of Charles Parsons Textiles Ltd, where Ms Malam was employed, and photocopied the passwords to the company’s computer system. Three days later they returned to the company premises and transferred $161,427.83 into one of the false accounts. They returned the next evening and transferred two further amounts of $133,212.36 and $155,743.81. When they tried for a third time to access the company’s computer system they were unsuccessful. In order to delay detection they severed the company’s fibre optic cables. The stolen funds were transferred to the false accounts. Before the theft was discovered and the accounts frozen the appellant and his co-offenders had sent $160,000 overseas and withdrawn $5,000 in cash.
The second part of the offending against Charles Parsons Textiles Ltd began in November 2006 and involved the same three offenders. Mr Van Wakeren arranged the opening of two further Kiwibank accounts with false documents and using fictitious names. In December 2006 an EFTPOS machine was obtained in the name of a fictitious company. The machine was used to process 31 unauthorised credit card transactions, using numbers belonging to customers of Charles Parsons Textiles Ltd. A total of $79,208.05 was fraudulently obtained, some of which was transferred into one of the false accounts established by Mr Van Wakeren. In January 2007 the EFTPOS machine was used again to process a further seven fraudulent credit card transactions to a value of $20,475. These funds were also deposited into a false account.
On 14 January 2007 the premises of Charles Parsons Textiles Ltd was burgled once again. A box of remittance advice forms with customer credit card details was taken from an area where Ms Malam worked. Later the same month the offenders used a similar modus operandi involving the setting up of false bank accounts, obtaining an EFTPOS machine in the name of a fictitious company and the use of the EFTPOS machine to process 51 unauthorised credit card transactions from customers of Charles Parsons Textiles Ltd. A total of $27,027.78 was fraudulently obtained in this way. The funds were transferred between the fictitious accounts but by the time there was an attempt to withdraw the monies in mid February 2007, the accounts had been frozen. But the total loss to the company and its customers was in excess of $100,000.
Operation Valour
The appellant and Mr Van Wakeren planned to break into the National Army Museum and steal war medals displayed there. On the evening of 1 December 2007 they drove from Auckland to Waiouru. When they entered the Museum in the early hours of 2 December by smashing a window in a door and opening a push bar on the door they activated the alarm. They went straight to the Valour Alcove where medals of significant historic value were kept. They smashed the display cases and stole 96 medals with an estimated value of over $5 million. The medals included Victoria Crosses, George Crosses and Albert Medals. Also stolen was the Victoria Cross with a Bar awarded to Charles Upham in World War II.
Two rewards were offered for the return of the medals, one of $200,000 and another of $100,000. An Auckland lawyer returned the medals to the police in January 2008. The circumstances in which the lawyer came into possession of the medals was not then known to the police. We were informed by counsel for the respondent that police later learned that the return of the medals was a collaborative exercise between the appellant and Mr Van Wakeren, for which they shared the reward of $200,000. Mr Van Wakeren later returned his $100,000 portion of the reward to the police. The $100,000 portion paid in respect of Mr Kapa’s involvement in the return of the medals has not been recovered. We will discuss this aspect further in relation to the appeal against the sentence of reparation.
The sentences imposed
We have already summarised the sentences imposed on the appellant for his part in the offending for Operations Pokie, Prince and Valour.[8] The sentences imposed on Mr Van Wakeren for the same (and some additional) offending is conveniently summarised in the judgment of this Court dealing with his appeal.[9]
[8] At [2] above.
[9] At [8] of the Van Wakeren appeal.
There is no need to elaborate on the detail of the reasoning of the two judges who imposed the sentences on the appellant. That is because the appeal on the sentences of imprisonment has narrowed down to consideration of the application of the totality principle and comparisons with the total sentence imposed on Mr Van Wakeren. Relative to the latter issue, there is one aspect of the sentence of Judge Joyce QC for Operation Pokie that merits brief discussion.
Judge Joyce accepted the Crown’s submission that the appellant was the most culpable of the three offenders. The Crown had submitted at the sentencing that the appellant had the task of organiser – a principal in the burglaries and transfers of the funds – who fulfilled the key role in orchestrating the overall offending. This was in part because of the relationship with Ms Malam, an employee of Charles Parsons Textile Ltd. She worked in the company’s credit department and was familiar with its financial workings. The Judge did not accept the submissions of defence counsel that the appellant should be regarded as no more than equally culpable.[10]
[10] Operation Prince sentencing at [80] and [103].
For reasons which we explain below, we are prepared to accept for the purposes of the appeal that the appellant was equally culpable with Mr Van Wakeren. It is the overall nature of the offending that is important. But here the focus is on the totality of the culpability of the appellant. The details of the comparisons with the offending by Mr Van Wakeren in particular instances tend to be subsumed in the broader issue.
Appellant’s submissions
The appellant first submits that there should have been a disputed facts hearing pursuant to s 24(2) of the Sentencing Act 2002 in order to determine the appellant’s level of culpability in relation to Operation Prince. There was insufficient proof in the Crown’s assertion that Mr Kapa was the main offender and organiser in relation to the offending, and the Court ought not to have rejected Mr Kapa’s denial of culpability. While there was an admission of guilt, a disputed facts hearing was still necessary to establish the Crown’s claim.[11] This is because if the prosecutor asserts a fact relating to the offence or the offender’s part in it that is not encompassed in the guilty plea, and that fact may justify a greater penalty, the prosecutor must prove it beyond reasonable doubt if it is disputed by the offender.
[11]See R v Bryant [1980] 1 NZLR 264 (CA).
The appellant next submits that the totality of the combined sentences imposed on the appellant by Judge Joyce QC and Judge Hubble is both unfair and harsh. The fundamental tenet of the totality principle is that the final sentence must reflect the totality of the offending. The overall sentences for the appellant offended against this principle. In imposing a cumulative sentence with a minimum period of imprisonment for both the Operation Valour and Operation Prince offending, the sentencing judges imposed sentences which, in aggregate, were wholly out of proportion to the gravity of the offending. In particular, the overall sentence was in excess of the maximum sentence available to the Court in respect of any one conviction for the more serious offences.
Key to this ground of appeal is alleged disparity between the appellant’s sentence and that of Mr Van Wakeren. For example, when both were sentenced on 4 June 2010 for Operation Prince, the appellant’s sentence was cumulative upon the term he was currently serving while Mr Van Wakeren’s sentence was to be served concurrently. Counsel maintains that there is an overall sentence disparity in respect of Mr Kapa’s term of 14 years 6 months imprisonment compared with Mr Van Wakeren’s overall sentence of 11 years, particularly as Mr Van Wakeren’s sentence includes offending in relation to Operations IRD and Kea, in which the appellant was not involved.
Next, with respect to the sentencing for Operation Valour, the appellant submitted that Judge Hubble erred when he failed to take into account applicable sentencing principles and instead succumbed to media interest and reactive public backlash in making an order for reparation. It is also inappropriate, in the absence of other means for the offender to pay, to order reparation on the mere possibility that the offender still has access to the proceeds of the crime.[12] Thus, in the current case, it was unreasonable and inappropriate for a reparation order of $100,000 to be set where there was only a mere possibility that the offender may have access to money. Counsel also submits that as it was the appellant who was in part responsible for the return of the medals he should not be responsible for reparation.
[12]R v Agnew CA284/89, 19 December 1989.
Following the oral hearing, we invited further submissions from the parties on factual aspects concerning how the valour medals came to be returned to the police. We received memoranda from counsel on this point. We also received a lengthy memorandum from the appellant personally. This memorandum ranged much wider than the issue on which leave to provide further submissions was granted. Despite that, we have considered the points made.
Discussion
Disputed facts hearing
We have already noted that we are prepared to accept for the purposes of this appeal that the appellant was equally culpable with Mr Van Wakeren with respect to their roles in the Operation Prince offending.[13] Our review of the facts leads us to the conclusion that both the appellant and Mr Van Wakeren each played a significant and sustained role in this offending. We consider therefore that they should share joint criminal responsibility for their combined participation. Accordingly the submission that the Judge at sentencing ought to have embarked upon a disputed facts hearing falls away.[14]
[13] At [15] above.
[14]We do not comment on whether, had our view of the respective roles been different, a disputed facts hearing under s 24 of the Sentencing Act would have been required.
Although the roles of the appellant and Mr Van Wakeren can be characterised as having equal weighting, this does not mean that the sentences will necessarily be the same. That will depend upon the application of the purposes and principles of sentencing to the circumstances of the case. Moreover, the final sentence imposed will turn on the consideration of the totality principle to which we now turn.
Totality
This issue lies at the heart of the appeal. It is perhaps unfortunate that it fell to three different judges to sentence the appellant for the three sets of offending. But this division of responsibilities arose from a combination of circumstances, meaning that the task of applying totality in respect of all offending in issue falls to this Court on appeal.[15]
[15]We made a similar observation in the Van Wakeren appeal at [65].
Counsel for both parties accepted that the totality principle needed to be addressed.[16] There is no dispute that there are three guiding principles when a court is sentencing for multiple offences. First, the sentence imposed must reflect the totality of the offending. Second, the court will not insist that the total sentence be arrived at in any particular way. Third, the total sentence must reflect the overall criminality of the offending and the offender.[17]
[16]With respect to the sentencing of the appellant in the District Court for the offending in both Operations Prince and Valour, neither judge made detailed reference to the totality principle.
[17]R v Baker CA57/01, 30 July 2001 at [10]; aff’d in R v Xie [2007] 2 NZLR 240 (CA) atThe requirement to address totality has a statutory basis in s 85 of the Sentencing Act as follows:
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
…
This Court addressed the totality principle in R v Johansen in the following way:[18]
In sentencing issues, the expression totality may be used in several senses. One principle consistently applied is that where the Court is dealing with several offences, after considering them individually it should stand back and look in a broad way at the totality of the criminal behaviour: see for example R v Bradley [1979] 2 NZLR 262, 263 (CA). The most common application of the principle is where cumulative sentences are being imposed on a single occasion but it has also been applied to situations where there are successive sentencings but for connected events; or successive but proximate sentencings for separate events. Here, of course, not only are the 1994 and 1996 events entirely unconnected, there is a significant time separation as well. Nevertheless, we think regard should be had to totality in the R v Bradley sense. The situation where a very long sentence may have to be imposed cumulatively on top of an already long sentence, of which only a relatively small proportion has been served, will necessarily be rare. By definition the second offence must occur either in a prison setting, or following an escape. Thus the potential category is a small one and cases of the present kind are likely to be unusual.
In such a situation, as in the more conventional totality case, when an initial assessment of the proposed sentence has been made it is necessary that the Judge stand back, as was said in Bradley, to look in a broad way at the totality of the criminal behaviour (that is, the conduct leading to the first sentence, as well as the offending that occasioned the second) and, we add, the Judge should also look at the total resulting penalty. In the present case the sentencing notes do not indicate that any such exercise was carried out.
[18] R v Johansen (1997) 15 CRNZ 111 (CA) at 120.
The gist of the appellant’s submission is that, having regard to the totality of the criminality for all the appellant’s offending and bearing in mind Mr Van Wakeren was sentenced for additional serious offending, the overall sentence for the appellant should be less than Mr Van Wakeren’s, but certainly not more.
For the respondent, Mr Tantrum submits that the situation of the appellant, when compared with that of Mr Van Wakeren, is similar but significant differences exist. Counsel argues that the appellant was the directing brain behind Operation Prince. We have already determined that each offender had similar joint leadership roles. Counsel submits, correctly, that the appellant was convicted of four Operation Pokie burglaries, while Mr Van Wakeren was convicted of two. In Operation Valour the appellant pleaded guilty to the charge of burglary later than his co-offender, did not return his share of the reward money and could rely on different mitigating circumstances. Counsel accepts that the appellant was not convicted of offences relating to Operations Post Office Box, IRD or Kea.[19]
[19] For a description of this offending, see the Van Wakeren appeal at [10]–[22].
In determining the totality issue the first point is that the offending in both Operations Prince and Valour particularly were serious. The same is true of the criminal conduct in Operation Pokie. Leaving aside Mr Van Wakeren’s additional offending in Operations Post Office Box, IRD and Kea,[20] we consider that the following description of Mr Van Wakeren’s offending is entirely apt in the case of the appellant:
[66] This was remarkably serious offending right at the top of property offending by its sophistication, its breadth of offending, and its persistence, if not its proceeds. At times the offending involved crude burglaries causing substantial damage to commercial premises for modest returns. But by contrast it also involved sophisticated frauds which obtained money from banks and other innocent victims.
[20] The sentences for which are described at [8](a), (b) and (e) of the Van Wakeren appeal.
Standing back and looking at the totality of the appellant’s criminal behaviour in a broad way, we consider that a total sentence of 13 years, three months is appropriate. We are satisfied that, having regard to the differences in circumstances between the appellant and Mr Van Wakeren on the charges for Operations Prince, Valour and Pokie, a slightly higher overall sentence than that imposed on Mr Van Wakeren is warranted. We accept the respondent’s submission that, with respect to the specific aggravating and mitigating factors applicable to the directly comparable offending (that is, Operations Prince, Valour and Pokie), significant differences exist justifying the higher total sentence for the appellant.[21]
[21]For further analysis of the factors relevant to the overall sentencing of Mr Van Wakeren, refer to [65]–[70] of the Van Wakeren appeal.
It follows that the appeal must be allowed. The total sentence of 14 years and six months imprisonment is quashed. Instead we impose a total sentence of 13 years and three months imprisonment. The question then arises as to how this reduced overall sentence may best be achieved, given the current make up of the sentences imposed in the Court below.
We consider that the appropriate course is to reduce the appellant’s sentence for the burglary of the National Army Museum to four years and nine months imprisonment. In adopting this course we make it plain that the reduction is only for the purpose of achieving an appropriate overall sentence. It should not be regarded as an indication that such a sentence for that offending alone was a proper sentence in all the circumstances. Indeed we agree with the observation of the sentencing Judge that this was very serious offending. Although the medals had a value in excess of $5 million, their value to New Zealand is far greater than that and cannot be measured only in monetary terms.
Minimum period of imprisonment
Counsel for the appellant accepted that an MPI was appropriate. There was no challenge to the imposition of combined MPIs for the sentences in Operations Prince and Valour. In terms of the jurisdiction to impose combined MPIs, we addressed this in our judgment on Mr Van Wakeren’s appeal.[22]
[22] At [74]–[87].
The required approach is to consider first whether this is an appropriate case for an MPI and if so what that period should be. We have no doubt that the appellant’s offending in Operations Prince and Valour warranted an MPI in each case. Counsel for the appellant did not seek to argue otherwise.
As to the period to be fixed, we consider that a combined MPI of six years and six months imprisonment would meet the statutory requirements of s 86 of the Sentencing Act. To achieve this outcome, we quash the total MPI of seven years and nine months. Instead, we impose the following MPIs:
We impose a total minimum imprisonment of six years and six months as follows:
(a)a minimum period of imprisonment of two years and nine months in relation to the sentence of four years and nine months imprisonment on the charge of burglary of the National Army Museum; cumulative on
(b)a minimum period of imprisonment of two years, nine months in relation to the sentence of five years and six months imprisonment in respect of the charges in respect of Operation Prince; cumulative on
(c)the standard non-parole period of one year of imprisonment with respect to the burglary charges for Operation Pokie.
Sentence of reparation
When imposing the sentence of reparation in the sum of $100,000 in the District Court, Judge Hubble stated:
[18] I did not order reparation against Mr Van Wakeren in respect of the damage to the museum because it is unlikely he would ever repay it. The reason I would impose reparation in your case of $100,000 is because the money is still out there somewhere and I have been given no satisfactory reason at all why it should not be given back.
...
[28] I am also ordering you to pay reparation of $100,000. There may be no prospect of that ever being paid but it is still out there somewhere. So if it does happen to come back into your hands, we would expect it to be repaid.
Following the hearing, counsel for the respondent confirmed that how the Auckland lawyer who returned the medals to the police came by the medals was not originally known. But police later learned that the return of the medals was a collaborative exercise between the appellant and Mr Van Wakeren in respect of which they shared the reward of $200,000.
As already noted, Mr Van Wakeren returned his share of the reward money to the police. The whereabouts of the appellant’s share of $100,000 is not known. Counsel for the appellant submits that the reward money was uplifted and received by a third party, that the appellant had no choice in the matter, and neither he nor his family had access to the reward money. The appellant therefore submits that it is unfair and unreasonable to have to pay reparation in those circumstances, as well as serving a lengthy period of imprisonment.
We are not satisfied that the Judge was wrong to impose a sentence of reparation. There is jurisdiction to do so and the appellant has not shown that the Judge erred in making the order. We have considerable doubts as to the explanation of the appellant’s role as offered by his counsel in submissions. The more likely position is that the appellant knows more about the reward than he has disclosed to the authorities or this Court. He cannot claim to be in the same position as Mr Van Wakeren, who saw to it that his share of the reward was returned to the police.
We dismiss the appeal against the sentence of reparation of $100,000. The order is confirmed.
Result
The appeal against sentence is allowed in part. The outcome is as described above and more fully in the judgment of the Court.
Solicitors:
Crown Law Office, Wellington for Respondent
[17]–[18].
3