Kapa v The Queen

[2010] NZCA 514

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/2010
[2010] NZCA 514

BETWEENJAMES JOSEPH KAPA

Appellant

ANDTHE QUEEN

Respondent

Court:Ellen France, Miller and Allan JJ

Counsel:M A Edgar for Appellant

J E Mildenhall for Respondent

Judgment:15 November 2010 at 10 am 

(on the papers)

JUDGMENT OF THE COURT

A            An extension of time to file a notice of appeal against sentence is granted.

BThe appeal against sentence is allowed.  The sentence of three and a half years imprisonment is quashed and a sentence of three years is substituted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]        James Kapa and Richard Marsh stood trial on various counts of burglary and associated counts of money laundering.  Both appealed against a number of their convictions and Mr Marsh appealed against sentence.  Their appeals against the money laundering convictions were successful.  Mr Marsh’s sentence of two years six months imprisonment was reduced to two years to reflect the Court’s decision to quash the money laundering charges.[1]  After delivery of the Court’s judgment, Mr Kapa filed a notice of appeal against sentence.

[1]      R v Marsh [2010] NZCA 130.

[2]        The appeal against sentence is based on the submission that since Mr Marsh received a 20 per cent reduction in his sentence, Mr Kapa is entitled to a similar reduction.

An initial question

[3]        Before considering the substance of the matter, we need to briefly address the basis on which we can deal with the matter.  In our view, Mr Kapa has not had a sentence appeal and so, subject to the fact an extension of time is needed, his current appeal can be dealt with as a fresh appeal.

[4]        The argument against this approach is that in the course of dealing with Mr Kapa’s conviction appeal we could have reconsidered his sentence[2] but did not do so.  On that analysis, the better course would be to treat this as an application for recall of the earlier judgment if there is jurisdiction to do so in terms of R v Smith.[3]  However, while in the earlier judgment, we noted the absence of a sentence appeal by Mr Kapa,[4] we did not formally address reconsideration under s 386(1).  It would be odd if, not having appealed, Mr Kapa was nonetheless treated as having done so, even though there was no formal decision as to any adjustment under s 386(1).  In the circumstances, we treat this as a fresh appeal.

Extension of time

[2]      Section 386(1) of the Crimes Act 1961 and see R v Hervey (1940) 27 Cr App R 146 (CA).

[3]      R v Smith [2003] 3 NZLR 617 (CA) at 628.

[4] At [74].

[5]        That decision means, as we have indicated, that Mr Kapa needs an extension of time for filing this appeal.  Ms Mildenhall for the Crown notes the public interest concerns that may militate against extending time in a case like the present, namely, inefficiencies in the Court process, delay, lack of finality and the ability to have a “second bite”.  Responsibly, however, the Crown does not oppose an extension.  Ms Mildenhall makes the point there is no suggestion Mr Kapa was acting strategically in not filing a sentence appeal originally.  Further, the strength of the proposed appeal suggests an extension of time is in the interests of justice.[5]  We accordingly grant an extension of time.

The merits of the appeal

[5]      R v Knight [1989] 1 NZLR 583 (CA) and R v Lee [2006] 3 NZLR 42 (CA).

[6]        We turn to the merits of the appeal.  Mr Kapa was sentenced to three years six months imprisonment.  He seeks the same discount as that afforded to Mr Marsh.  That would lead to an end sentence of two years and ten months imprisonment.

[7]        In sentencing the appellant, Judge Hubble said these were burglaries of commercial premises undertaken with “a degree of planning and sophistication”.[6] Considerable property damage was caused over a period of more than six months by an offender with numerous previous convictions, 14 of which were for burglary.[7]  The money laundering charges were treated as a “modest” aggravating feature overall although introducing a degree of “multiplicity of punishment”.[8]

[6]      R v Kapa DC Auckland CRI-2006-4-9486, 3 June 2009 at [8].

[7]      Ibid.

[8]      Ibid.

[8]        Judge Hubble took a starting point of four and a half years imprisonment.  As the Judge said, on the authorities, a higher starting point could have been adopted.[9]  From that starting point, the sentence was reduced on account of delay in the prosecution and the consequent fact that Mr Kapa had been on strict bail terms for four and a half years.

[9] At [17].

[9]        The starting point for the co-offender, Mr Marsh, was three years imprisonment.  Mr Marsh was also in the recidivist burglar category with some 50 previous convictions.

[10]       The difference in starting points reflected the fact Mr Kapa was being sentenced for four charges of burglary to Mr Marsh’s two.  Further, Judge Hubble sentenced Mr Marsh on the basis his was essentially a secondary role.  The combination of delay, time on restrictive bail, and a health issue were relevant to the imposition of an end sentence of two and a half years imprisonment on Mr Marsh.

[11]       Against this background and consistently with the submissions for the Crown, we consider it is appropriate to reduce the appellant’s sentence by six months.  The appellant was sentenced for a different package of offending than that of Mr Marsh.  A reduction of 20 per cent for the appellant would lead to a sentence which did not reflect his overall culpability.  We made a relatively small adjustment to Mr Marsh’s sentence and a reduction of six months on Mr Kapa’s sentence is an appropriate, relatively small, adjustment.

Disposition

[12]       For these reasons, an extension of time for filing the appeal is granted.  The appeal against sentence is allowed in that the sentence of three and a half years imprisonment imposed by the District Court is quashed and a sentence of three years is substituted.

Solicitors:

Crown Law Office, Wellington