Kapea v Police - [2019] NZHC 1453

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…

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 Kapea v Police

Details

AGLC: Kapea v Police [2019] NZHC 1453
Case: [2019] NZHC 1453
Decision Date: 25 June 2019

CaseChat Overview and Summary

Tipene Mikaire Kapea appealed against his sentence of two years and one month’s imprisonment, imposed by Judge Spear in the District Court at Hamilton on 15 May 2019. The sentence was for 13 charges of dishonestly using a document, one charge of burglary, one charge of breach of court release conditions, and one charge of failure to answer District Court bail. The appeal focused on the sentence imposed being greater than the sentence indicated by the District Court. The High Court considered whether there was an error in the sentence and whether a different sentence should be imposed.

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