Kaponga v Police

[2013] NZHC 2174

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000024 [2013] NZHC 2174

WILLIE NELSON MARK TEKAWE KAPONGA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	26 August 2013
Counsel:	J K Fraser for Appellant E L Higbee for Respondent
Judgment:	26 August 2013

JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of 19 months imprisonment imposed on

Mr Kaponga in relation to multiple charges of dishonesty.

[2]      It is first necessary to refer to the offending.   In early December 2012 the appellant obtained credit card details from the handbag of his partner’s grandmother, so that he could make use of that card.  The grandmother, I note, was aged 71 or 72 at the relevant time.  In the result a Trade Me account and also a Telecom bill were paid and charged to the credit card, the sum involved being $303.

[3]      A few weeks later on 31 December the appellant was at Colac Bay for a family gathering.   He had been drinking to excess.   He entered a building on the marae and stole an iPod, iPhone and also a cash amount of about $40, but also wrote down on his hand, credit card details for a card which he did not remove.  The entry

into the building and the taking of the items to which I have just referred gave rise to

KAPONGA v NEW ZEALAND POLICE [2013] NZHC 2174 [26 August 2013]

a charge of burglary.  After getting details of this further credit card it was used on some  eight  occasions  over  a  period  of  several  days.    In  the  end  result,  the transactions represented a sum of $4,140.

[4]      If that was not enough, on 29 January the appellant was involved in similar conduct against another complainant.

[5]      He is a chef by training and he was assisting the owner of a mobile kitchen. He borrowed the owner’s phone for which a pin number was required and kept note of the pin number.  He then removed a business credit card belonging to the owner and rightly surmised that the pin number for the card was likely to be the same as that for the phone.  Hence, he was able to use the card on two occasions; once to obtain cash of $800, and on another occasion, to obtain a cell-phone prepayment credit of $60. This fraud of two offences accounted for a further sum of $860.

[6]      The total of the offending over these 13 charges is of the order of $5,300. The appellant was 24 at the time, and is now 25.  He has a previous extensive record for offences in his earlier days of burglary, more recently dishonesty offending of the same kind as I have just outlined.  I note that he was sentenced to imprisonment in

2007, mainly for burglaries, again in 2009 for using a document with intent to defraud.  There were further prison sentences imposed in 2010 and 2011.  In all, I think he has had six sentences of imprisonment.

[7]      A short while prior to this offending, he appeared in the District Court on a charge of disorderly behaviour and possession of cannabis and was sentenced to six months supervision, which he was still serving at the time of the offending.

[8]      About the only ray of hope that was evident at the time of the sentencing in the District Court on 14 May 2013 was a surprisingly positive pre-sentence report.  It included this:

I consider Mr Kaponga’s lifestyle attitudes and alcohol consumption are all factors in his offending.  I suggest a departmental psychologist’s referral that will explore Mr Kaponga’s behaviours that contribute to his offending.  He has been attending drug and alcohol counselling as part of his current sentence of supervision.  He stated this counselling as being very beneficial. I recommend continued counselling in this area.  Mr Kaponga is currently

working three jobs.  He has acquired this employment since his offending, his partner stating “employment provides Willie with stability and a greater sense of purpose”.   I suggest Mr Kaponga is given a less restrictive community based sentence that will enable him to maintain his employment which is a major factor in reducing his risk of reoffending.  I recommend a sentence of intensive supervision which will enable him to address his rehabilitative needs.  Community work is also recommended as a reparation element to sentencing.

[9]      I note that the report also included reference to the availability of an address which would have been suitable for home detention or community detention. However, Judge Strettell did not see these community based options as appropriate. He adopted a starting point of 15 months imprisonment, uplifted that starting point by nine months to reach 24 months as an appropriate sentence.  However, he then allowed a reduction of five months on account of prompt pleas of guilty thereby the end sentence became 19 months imprisonment.

[10]     Mr Fraser in support of the appeal has advanced one submission, namely that this was a case where home detention should have been considered and ultimately imposed.   He argued that the Judge had not adequately considered that as an appropriate option given the imposition of a short-term of imprisonment.  It is true that the Judge did not expressly refer to home detention, what he said however, was that the present offending indicated that the appellant was a recidivist, that he had committed the offences whilst he was on bail (I think a mistake, what he intended to say was on supervision), and that “I do not consider that the recommendations of the probation report properly hold you accountable or recognise the seriousness of this offending”.  That to my eye was clearly the Judge rejecting home detention for the reasons he had given earlier in the same paragraph.

[11]     I must say that the content of the pre-sentence report has caused me to pause. The writer of that report seemed to have found some signs that Mr Kaponga may have reached a point in his life where he was in a position to achieve a turnaround and hence she recommended community based options, indeed less than home detention.

[12]     However, the test that I must apply is whether it is shown that the Judge has arrived at the end sentence in a manner which is wrong in principle, or alternatively that the end sentence is clearly excessive.  The latter cannot possibly be advanced when one has regard to this offending and his past history.  The only issue was whether the case was strong enough to warrant the approach that the report writer advocated.  Some Judges might have responded to the report in a more positive manner, but I cannot be persuaded that the Judge erred in principle in the way that he concluded that a community based sentence was not appropriate.

[13]     For these reasons the appeal is dismissed.

Solicitors:

J K Fraser, Invercargill

E L Higbee, Preston Russell Law, Invercargill