IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2019-419-0039
[2019] NZHC 1453
BETWEEN TIPENE MIKAIRE KAPEA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 June 2019 Appearances:
C D Bean for the appellant
S F Gilbert for the respondent
Judgment:
25 June 2019
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
Charles Denby Bean, Barrister, Hamilton Almao Douch, Hamilton
KAPEA v NEW ZEALAND POLICE [2019] NZHC 1453 [25 June 2019]
[1] Tipene Kapea appeals his sentence of two years and one month’s imprisonment imposed by Judge Spear in the District Court at Hamilton on 15 May 2019.1 That sentence was imposed in respect of 13 charges of dishonestly using a document,2 and one charge each of burglary,3 breach of court release conditions,4 and failure to answer District Court bail.5
[2] The case came before Judge Spear for a sentencing indication on 6 March 2019.6 The indication given was no more than 30 months’ imprisonment, less a 25 per cent discount in respect of any guilty plea entered in accordance with the indication, and subject to any further downwards adjustments required by the offender’s personal circumstances.7 This indication was accepted.
Background
[3] The burglary was of a residential property in Hamilton’s Whitiora. On the afternoon of 11 January 2019, Mr Kapea unlatched a window, entered the house, and stole several items, including some credit cards. The total value of goods stolen was
$2019. The dishonesty charges related to Mr Kapea’s use of the stolen credit cards to make 13 purchases, the total value of which were $600. Mr Kapea has thirteen prior convictions for dishonest offending, this being his seventh burglary conviction. His last four convictions are all for burglary: he was sentenced to two years and six months’ imprisonment in 2015, and one year and five months’ imprisonment in 2017.
[4] In his sentence indication, Judge Spear indicated this previous offending would attract an uplift of up to six months from the 18-month starting point he adopted in respect of the index burglary offending. The Judge uplifted that by a further six months to “reflect the other offending”8, producing the maximum thirty-month starting point.
1 Police v Kapea [2019] NZDC 9200.
2 Crimes Act 1961, s 228(1)(b). Maximum penalty 7 years’ imprisonment.
3 Crimes Act 1961, s 231. Maximum penalty 10 years’ imprisonment.
4 Sentencing Act 2002, s 96(1). Maximum penalty 1 year’s imprisonment.
5 Bail Act 2000, s 38(a). Maximum penalty 1 year’s imprisonment.
6 Police v Kapea DC Hamilton CRI-2019-019-261, 6 March 2019.
7 At [4]-[5].
8 At [4].
The Judge referred to the charge of breaching release conditions, saying it “would be considered as part and parcel of that approach”.9
[5] On 15 May 2019, Judge Spear adopted a sentence of 23 months’ imprisonment in respect of the burglary and dishonesty offending, including a six-month uplift for his previous offending and a 25 per cent discount (from 30 months’ imprisonment). In addition to this, the Judge imposed a cumulative…
Continue reading Kapea v Police
Sign in free to access the full text
- AGLC
- Kapea v Police [2019] NZHC 1453
- Case
- [2019] NZHC 1453
- Decision Date
CaseChat Overview and Summary
The court considered whether the sentencing indication was binding on the judicial officer who gave it, or on other judicial officers. It concluded that while a sentencing indication is binding on the judicial officer who gave it, it is not binding on other judicial officers or the High Court on appeal. Rather, the usual standard for intervention applies: there must be error in the sentence, and a different sentence should be imposed. The court found that the District Court had erred either in varying from the indicated sentence without establishing its satisfaction it was affected by new material information, or in not referring to the new charge of failing to answer District Court bail. However, the end sentence of 25 months for all charges was not manifestly excessive.
The appeal was dismissed, and the original sentence was upheld. The court found that the sentence was within a range properly justified by accepted sentencing principles, and there was no error in the sentence. Therefore, the appeal was dismissed and the original sentence was upheld.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.