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…

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 [2010] NZCA 514
Case: [2010] NZCA 514
Decision Date: 15 November 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence from James Joseph Kapa, the appellant, against the decision of the District Court. The appellant was found guilty of various counts of burglary and associated money laundering charges, and he appealed against his sentence. The appeal was based on the argument that the appellant should receive a similar reduction in his sentence as his co-defendant, Richard Marsh, who had his sentence reduced by 20%.

The legal issues the court had to decide were whether the appellant was entitled to an extension of time to file his notice of appeal against sentence and if the sentence imposed by the District Court was appropriate. The court held that the appellant had not had a sentence appeal and that his current appeal could be dealt with as a fresh appeal. The court also granted an extension of time for filing the appeal, considering the public interest concerns and the strength of the proposed appeal.

The court found that it was appropriate to reduce the appellant’s sentence by six months, considering the differences in the package of offending between the appellant and his co-defendant. The court considered the appellant's culpability, the delay in prosecution, the time spent on restrictive bail, and health issues in determining the appropriate reduction. The appeal against sentence was allowed, and the sentence of three and a half years imprisonment was quashed and replaced with a sentence of three years.

In conclusion, the Court of Appeal of New Zealand granted an extension of time for filing the appeal and allowed the appeal against sentence. The sentence of three and a half years imprisonment was quashed and a sentence of three years was substituted, reflecting a reduction of six months. The decision considered the differences in the package of offending between the appellant and his co-defendant, as well as the factors influencing the original sentencing decision.

Orders