Kapa v The Queen - [2011] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/2010
CA572/2010
[2011] NZCA 504

BETWEEN JAMES JOSEPH KAPA
Appellant

AND THE QUEEN
Respondent

Hearing: 31 August 2011

Court: Stevens, Ronald Young and Venning JJ

Counsel: M A Edgar for Appellant
D A Bell and B D Tantrum for Respondent

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.

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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]…

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 The Queen

Details

AGLC: Kapa v The Queen [2011] NZCA 504
Case: [2011] NZCA 504
Decision Date: 3 October 2011

CaseChat Overview and Summary

The case of Kapa v The Queen involved an appeal by James Joseph Kapa against his sentences for various criminal activities. Kapa had pleaded guilty to charges arising from two major police investigations, Operation Prince and Operation Valour. He was sentenced to a total of 14 years and six months imprisonment, with a minimum period of imprisonment of seven years and nine months. He appealed against the sentence, claiming it was manifestly excessive and did not properly take into account the totality principle. The appeal was heard by the Court of Appeal of New Zealand, comprising Stevens, Ronald Young, and Venning JJ. Kapa's counsel argued that the sentences imposed on him were disproportionate compared to those of his co-offender, Mr Ronald Van Wakeren, and that the sentence of reparation in the sum of $100,000 was inappropriate. The Court found that the appeal against the total sentence of 14 years and six months imprisonment was allowed and reduced the sentence to 13 years and three months imprisonment. The court quashed the sentence of six years imprisonment relating to the burglary of the National Army Museum and instead imposed a sentence of four years and nine months imprisonment. The Court also imposed a total minimum imprisonment of six years and six months, with the sentence of reparation in the sum of $100,000 confirmed.

Orders