Kapea v Police
[2019] NZHC 1453
•25 June 2019
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 two-month sentence in respect of a charge of breaching release conditions, resulting in the 25-month end sentence. No reference to the charge of failing to answer District Court bail appears in the Judge’s sentencing notes. That charge was not laid until 14 March 2019; that is, after the sentence indication was given.
Issues on appeal
[6] Mr Kapea’s counsel, Charles Bean, says the sentence imposed was manifestly excessive and plainly wrong, being greater than the sentence indicated. He focuses on the additional sentence of some two months’ imprisonment imposed cumulatively on the 23-month sentence. He says, as this charge was part of the sentence indication, the Judge erred in imposing a sentence greater than that indicated by reason of the breach of release conditions charge. He also says, as 25 per cent of 30 months is seven-and- a-half months, the Judge also exceeded the indicated sentence by arriving at a sentence of 23 months following the guilty plea discount.
Approach to appeals against sentence
[7] I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 The approach previously taken by courts on sentencing appeals continues to apply;12 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.13 I will not intervene where the sentence is within a range properly justified by accepted
9 At [5].
10 Criminal Procedure Act 2011, s 250(2).
11 Section 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 At [33] and [35].
sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14 If required to review the sentence given, I am not bound by the sentencing indication.15
Discussion
[8] There is inconsistency on the part of first appeal courts as to whether a within- range end sentence, but not conforming to a sentencing indication, should be modified to conform to that indication.16 I (and other judges of this Court) doubt it.17 Subject to new and material information arising subsequently, while a sentencing indication is binding on the judicial officer who gave it,18 it is not binding on other judicial officers,19 or (as I have said) on me on appeal. Rather the usual standard for intervention applies: there must be error in the sentence, and a different sentence should be imposed.
[9] It is unclear if – in his sentence indication, by ‘part and parcel’ – Judge Spear meant it incorporated the charge of breaching release conditions. It also is unclear if, in his sentencing, Judge Spear misstated that reference (to the charge of breaching release conditions) for the new charge of failing to answer District Court bail. Given the new charge, I do not see how Mr Kapea could have expected Judge Spear to be constrained to his sentence indication. But Judge Spear erred: either in varying from the indicated sentence, without establishing his satisfaction it was affected by new material information (if that was as to the new charge, although strictly speaking that is not information affecting the indicated sentence); or, more likely, in not referring to the new charge.
[10] Either way, I therefore must consider if the 25-month end sentence for all the charges is consistent with generally accepted sentencing principle. If it is, I must dismiss the appeal.
14 Ripia v R [2011] NZCA 101 at [15].
15 Boyce v R [2014] NZCA 295 at [32].
16 See GG Hall Hall’s Sentencing (online ed, LexisNexis) at [APPI.2.11(e)].
17 Wilson v R [2015] NZHC 298; Appuhamilage v Police [2015] NZHC 2355; Scoles-Young v Police
[2016] NZHC 1120; and Nuku v R [2016] NZHC 2255.
18 Criminal Procedure Act 2011, s 116(2).
19 Section 116(3).
[11] Given the range of circumstances in which it arises, the index offence of burglary has no tariff case. But a starting point for low-level – that is, without significant aggravating features in the means, conduct, or result of the offending – burglary of a dwelling house is in the range of two years, plus or minus six months.20 Uplifts are appropriate for recidivist burglary offending,21 and Mr Kapea’s six-month uplift for previous offending is modest by comparison, and the six-month uplift for his related offending is comparable. After full discount for guilty pleas, a 26-27 month sentence results. From that perspective, even disregarding the new charge, the 25- month end sentence under appeal is not ‘manifestly excessive’.
Result
[12]The appeal is dismissed.
—Jagose J
20 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]-[79]; and Gorgus v R CA706/2015,
19 October 2016 at [4] and [10].
21 R v Columbus [2008] NZCA 192 at [15]-[20] (uplifts of 12 months for significant previous dishonesty offending, and six months for related offending).
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