Karanga v The King
[2025] NZCA 199
•28 May 2025 at 10:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA68/2025 |
| BETWEEN | KINGIRANGI JOHNSON KARANGA |
| AND | THE KING |
| Court: | Woolford, Jagose and Powell JJ |
Counsel: | J W Wall for Applicant |
Judgment: | 28 May 2025 at 10:30 am |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
REASONS OF THE COURT
(Given by Woolford J)
On 1 June 2018, after pleading guilty to 24 charges, Mr Kingirangi Karanga was sentenced to a total of six years and nine months’ imprisonment.[1] The charges included three counts of endangering transport pursuant to s 270(1)(a) of the Crimes Act 1961, laid in relation to Mr Karanga driving the wrong way down motorways.
[1]R v Karanga [2018] NZDC 11262 [sentencing notes].
Mr Karanga now applies for an extension of time to file an appeal against the convictions for endangering transport on the basis that this Court subsequently held in Ihaia v R that similar conduct does not fall within s 270.[2] He does not seek to appeal the other 21 convictions. The Crown opposes the application.
Background
[2]Ihaia v R [2022] NZCA 95.
At about 3:30 pm on 16 October 2017, police identified a stolen motor vehicle being driven by Mr Karanga in Sunnyvale, Auckland. Police attempted to stop the vehicle using flashing blue and red lights and a siren. Mr Karanga accelerated away from the police and a pursuit was initiated. Mr Karanga drove recklessly and police abandoned the pursuit in Te Atatū due to concern for public safety.
The police helicopter continued to follow Mr Karanga. In an attempt to lose the police helicopter, Mr Karanga continued to drive in a reckless manner. The summary of facts for the first two charges of endangering transport reads:
The defendant entered State Highway 20 at the Neilson Street, Onehunga on‑ramp.
As the defendant was about to merge into motorway traffic, he performed a U‑turn manoeuvre and began driving in the wrong direction along State Highway 20 in southerly direction.
The defendant remained in the slow lane adjacent to the motorway shoulder as he accelerated to speeds in excess of 100 kilometres an hour.
At this time, motorway traffic was of a medium density, and therefore oncoming traffic was flowing freely at speeds in the vicinity of 100 kilometres an hour.
As the defendant continued to drive at oncoming traffic, numerous vehicles driven by members of the public had to take evasive last minute action to avoid collisions.
Given the defendant's speed and that of oncoming traffic, any collision would likely have resulted in serious or fatal injuries.
The defendant exited the motorway at Walmsley Road, Mangere and continued his flight through residential streets before re‑entering State Highway 20 at the Walmsley Road interchange.
The defendant again entered the motorway in the wrong direction and began travelling in a northerly direction along State Highway 20.
This time, the defendant drove at oncoming traffic in the “fast lane”.
The defendant accelerated to a speed in the vicinity of 100 kilometres an hour.
Oncoming traffic was free‑flowing and also travelling at speeds in the vicinity of 100 kilometres an hour.
As the defendant continued to drive at oncoming traffic, numerous vehicles driven by members of the public had to take evasive last minute action to avoid collisions.
Given the defendant's speed and that of oncoming traffic, any collision would likely have resulted in serious or fatal injury.
The defendant exited the motor way at Neilson Street, Onehunga, where police deployed road spikes and successfully deflated several of the stolen vehicle's wheels.
The defendant stopped the stolen motor vehicle in the middle of Neilson Street, Onehunga.
After stopping Mr Karanga exited the vehicle and attempted unsuccessfully to take four other vehicles, during the course of which he assaulted a driver. Then when approached by a police patrol vehicle Mr Karanga returned to the stolen motor vehicle, which by then had three flat tires, climbed into the driver’s seat and accelerated away from police. He continued his sustained reckless driving through Onehunga and drove along several streets on the wrong side of the road through heavy traffic and at excessive speed.
He then entered the South Eastern Highway in the wrong direction and drove at oncoming traffic. This was the subject of the third charge of endangering transport. Mr Karanga collided with two vehicles that were stationary in traffic before the stolen motor vehicle came to a stop. Mr Karanga fled from the stolen motor vehicle on foot but was caught by pursing police within 10 meters of the motor vehicle.
Endangering transport charges
Mr Karanga faced three charges of endangering transport under s 270(1)(a) of the Crimes Act, which provides:
270 Endangering transport
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,—
(a)interferes with any transport facility; or
(b)does anything to any transport facility that is likely to cause danger to persons or property.
(2)For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.
The three charges were all in similar form to the first, charge 14, which reads:
That KINGI KARANGA on 16 October 2017 at Auckland with reckless disregard for the safety of the commuting public interfered with a transport facility namely the South Western motorway.
Particulars: Driving south bound in the north bound lane of the South Western motorway from before Mangere bridge to the Walmsley Road on ramp — viewable on the Eagle footage between 15:54:56 to 15:56:41.
The Crown had also laid reckless driving charges as alternatives to the charges of endangering transport in the Crown Charge Notice.[3] The maximum sentence for endangering transport is 14 years’ imprisonment.[4] The maximum sentence for reckless driving is three months’ imprisonment or a fine not exceeding $4,500.[5]
Application for dismissal of charges
[3]Land Transport Act 1998, s 35(1)(a).
[4]Crimes Act 1961, s 270(1).
[5]Land Transport Act, s 35(2).
Before Mr Karanga pleaded guilty, his then counsel applied pursuant to s 147 of the Criminal Procedure Act 2011 for the three charges of endangering transport to be dismissed on the basis that s 270(1)(a) did not extend to driving the wrong way on a motorway at speed. In a judgment dated 8 March 2018, Judge J C Down determined that the wording of s 270 was broad enough to encompass the conduct alleged in this case.[6] The Judge was satisfied that driving the wrong way on a motorway at speed was both interfering with a transport facility in terms of s 270(1)(a), or could be characterised as doing something to a transport facility which is likely to cause danger to persons or property in terms of s 270(1)(b). The Judge was also satisfied that a road was a transport facility, as defined in s 270(2).[7]
[6]Karanga v R DC Auckland CRI-2017-090-5340, 8 March 2018 at [28].
[7]At [23].
Mr Karanga pleaded guilty to all charges after the dismissal of the s 147 application.
Sentencing
Mr Karanga was sentenced by Judge R G Ronayne on 1 June 2018 for the offending which occurred between 13 and 17 October 2017. The charges were: three counts of endangering transport,[8] five counts of burglary,[9] one count of receiving property (over $1000),[10] one count of assault with intent to rob,[11] one count of possessing instruments for burglary,[12] four counts of attempting to unlawfully take a motor vehicle,[13] two counts of theft (under $500),[14] one count of reckless driving,[15] two counts of dangerous driving,[16] two counts of failing to stop or ascertain injury,[17] one count of aggravated failure to stop for red/blue flashing lights,[18] and one count of resisting police.[19]
[8]Crimes Act, s 270(1)(a) (maximum penalty 14 years’ imprisonment).
[9]Section 231(1)(a) (maximum penalty 10 years’ imprisonment).
[10]Sections 246 and 247(a) (maximum penalty seven years’ imprisonment).
[11]Section 236(2) (maximum penalty seven years’ imprisonment).
[12]Section 233(1)(a) (maximum penalty three years’ imprisonment).
[13]Section 226(2) (maximum penalty two years’ imprisonment).
[14]Sections 219 and 223(d) (maximum penalty three months’ imprisonment).
[15]Land Transport Act, s 35(1)(a) (maximum penalty three months’ imprisonment or $4,500 fine).
[16]Section 35(1)(b) (maximum penalty three months’ imprisonment or $4,500 fine).
[17]Section 35(1)(c) (maximum penalty three months’ imprisonment or $4,500 fine).
[18]Sections 52A(1)(a)(ii), 52A(2), and 114(2) (maximum penalty $10,000 fine).
[19]Summary Offences Act 1981, s 23(a) (maximum penalty three months’ imprisonment or $2,000 fine).
In sentencing Mr Karanga, the Judge repeated what he had said in a sentence indication six weeks earlier:[20]
I would approach the matter on this basis, I would impose concurrent sentences on the burglaries which would be a three year prison term, I would accumulate 18 months for the receiving and two months for the thefts. That would then bring the notional sentence to one of four years and eight months. I would make a reduction in that of two months to reflect totality bringing the notional sentence to one of four years and six months. That would be achieved by imposing three years for the burglaries, 18 months cumulative for the receiving with the theft sentences concurrent.
[20]Sentencing notes, above n 1, at [41].
The Judge then turned to what he described broadly as the driving matters. He stated:
[42] … For the reckless driving I would start with a maximum of three months. For the endangering transport, I note that that charge must necessarily cover a very wide range of contemplated activities such as the endangering of large conveyances such as trains, et cetera. Here the features I identify are the extreme danger to countless people. A fatality would have been almost certain had any collision occurred. As I said at the sentence indication, I had then just watched the Eagle Helicopter footage in my chambers and, as I said and I repeat now, I was literally holding my breath for other motorists. It was a prolonged and appalling example of driving, it took place in a stolen vehicle, it was carried out to avoid arrest and thus put police in the invidious position where they have to bear in mind their sworn duty to uphold the law but at the same time avoid danger to others.
[43] The other driving charges simply reflect your stupidity. Against a 14 year maximum and the need for strong denunciation, strong deterrence, and the need to hold you accountable, I would adopt a starting point of five and a half years. All other driving charges would be subsumed in that.
The Judge continued by again repeating what he had said in the sentence indication:[21]
That then comes to this, four and a half years for the burglaries and other related charges plus five and a half years for the driving charges. That comes to 10 years. I would reduce that by one year to reflect totality. That in your favour risks double‑counting because I had already reduced the notional sentence for the burglaries and other matters down to four and a half years to reflect totality for that group of offending. That comes to nine years. I would give you two years and three months off for a guilty plea. That then brings the sentence down however constructed to a final sentence of six years and nine months. That is the indication I give.
[21]At [45].
The Judge then indicated that he proposed to impose discrete sentences on each charge on a concurrent basis. He said that he would therefore impose the “overall sentence” of six years and nine months’ imprisonment on the endangering transport charges.[22]
[22]At [46].
The sentence of six years and nine months’ imprisonment imposed on the endangering transport charges therefore reflected a range of offending between 13 and 17 October 2017, and not just driving the wrong way on the motorway at speed on three occasions. The burglaries themselves were serious. The Judge identified the aggravating features of the burglaries as follows:
[32] … first, there were multiple burglaries, five in total. Secondly, they were burglaries of dwelling houses which always risk confrontation and are always considered to be a serious aggravated feature of any burglary. Thirdly, there was in fact a confrontation. Fourthly, significant losses have been caused to the victims of the burglaries. Fifthly, you indulged in disgusting and degrading behaviour gratuitously ransacking houses and urinating on clothing. That alone must have significantly added to the sense of violation of the victims and, sixthly, you used a stolen vehicle to commit the burglaries.
The matters that the Judge described broadly as the driving matters included a serious assault with intent to rob. The Judge described it as follows:
[22] In a fourth consecutive attempt to steal a vehicle, you stood in the middle of the road causing an approaching vehicle to stop. … [The driver] was forced to stop his vehicle so as to prevent crashing into you and that gives rise to charge 25.
[23] You began gesticulating violently at the occupant of the vehicle and you made advances towards that person in an attempt to take the car. Fearing for his safety, the victim manoeuvred his vehicle around you, partially onto the footpath, and began to accelerate away. In an attempt to prevent him from escaping, so that you could take his car, you reached through the open window with a closed fist striking him in the face and that gives rise to charge 26.
[24] As a result of the assault, the victim was dazed and continued to accelerate a short distance before crashing into a lamppost at speed. The impact resulted in significant vehicle damage and facial and head injuries to the victim. You then proceeded to approach the victim sitting in his vehicle but you quickly realised the vehicle was no longer driveable due to the crash. At this point a police patrol vehicle approached, forcing you to return to the Toyota motor vehicle which by then had three flat tyres. You got back into the driver's seat and you again accelerated away from the police. …
The Judge imposed a discrete sentence of three years’ imprisonment on the charge of assault with intent to rob, saying “[a] significant term of imprisonment is justified for that but it will be concurrent.”[23]
[23]At [44].
On 25 June 2018, three and a half weeks after Mr Karanga was sentenced by Judge Ronayne, Mr Karanga appeared before Judge Pidwell in the Waitākere District Court for sentencing on 13 further charges which related to offences committed between June and September 2017.[24] There were six charges of theft of property under $500, two charges of failure to answer District Court bail, and individual charges of speaking threateningly, assaulting police, unlawfully getting into a motor vehicle, unlawfully possessing ammunition and careless use of a motor vehicle.
[24]Police v Karanga [2018] NZDC 12822.
Judge Pidwell saw the issue before her as whether Judge Ronayne, if he had the new charges before him when he sentenced Mr Karanga, would have sentenced him to a longer term of imprisonment or not.[25] Ultimately, Judge Pidwell was of the view that the new offending should be acknowledged separately.[26] Giving Mr Karanga a discount for his guilty pleas and then stepping back and looking at the total of all sentences, including those imposed by Judge Ronayne, led Judge Pidwell to determine that a cumulative sentence of six months’ imprisonment was appropriate, which she imposed on the charge of possession of ammunition.[27]
[25]At [7].
[26]At [8].
[27]At [9]–[10].
In June the following year, Judge Field sentenced Mr Karanga to another cumulative term of 12 months’ imprisonment for aggravated robbery committed in September 2017, just over a month before the major offending in October 2017.[28] Judge Field summarised the offending as follows:
[2] The circumstances of the case are that the victim in the case is the owner of a BMW motor vehicle. In the course of your meeting with him you approached his vehicle, you sat in the passenger's seat, you pulled out a knife from your hooded jumper, the knife was approximately 10 inches long, and appeared to be for outdoor use. You pointed the knife at him and told him to drive. Your associate then followed the victim's vehicle while he was driving. He stopped the vehicle. You threatened to stab him if he did anything, and that you would gut him. You demanded that he give you his money. He did not have any cash. You took his wallet and then you drove off in his vehicle. The vehicle was returned to the victim but had been significantly damaged.
[28]Police v Karanga [2019] NZDC 11765 at [6].
Judge Field stated that the cumulative sentence of 12 months’ imprisonment was “much less than would otherwise have been imposed but having regard to the totality of the offending if I were to impose an otherwise appropriate sentence it would, in my view, be a crushing one”.[29]
[29]At [1].
Mr Wall, counsel for Mr Karanga, advises the Court that the cumulative sentence of 12 months’ imprisonment for aggravated robbery imposed by Judge Field left him with an overall sentence set to expire on 14 January 2026.
Mr Karanga was released on parole in March 2023. In November 2023, he was arrested again and recalled to prison to continue serving his existing sentence. He has pleaded guilty to new charges of burglary, breaching release conditions, dangerous driving and two charges of carrying ammunition and a firearm. Mr Karanga is currently set to be sentenced on 29 May 2025.
Application for an extension of time to appeal
Legal principles
Section 25(h) of the New Zealand Bill of Rights Act 1990 guarantees a right of appeal against convictions, but it is not a free‑standing, perpetual right to appeal. There are reasonable limitations on that right, including the time limit for bringing an appeal. The principle of finality requires that appeals are brought in a timely manner. However, it is important that the time limit for bringing an appeal is not too short or too rigorously enforced.[30]
[30]Kriel v R [2024] NZCA 45 at [88]–[91].
The principles governing applications for extensions of time to appeal were set out in R v Knight and recently affirmed by this Court in Kriel v R.[31] The touchstone is the interests of justice. The starting point is that a conviction entered in accordance with the law as it was understood at the time should stand. A mere assertion that a subsequent authority means there was, or might have been, an error of law is insufficient reason to grant an extension; the applicant must show that special circumstances particular to the case justify departure from the principle of finality.
[31]R v Knight [1998] 1 NZLR 583 (CA) at 587–589; and Kriel v R, above n 30, at [79]–[86].
The factors relevant to that assessment include:[32]
(a) the strength of the proposed appeal;
(b) the practicality of the remedy sought;
(c) the length of the time and the reasons for the delay;
(d) the impact on others similarly affected and on the administration of justice (the “floodgates” consideration); and
(e) the absence of prejudice to the Crown.
[32]R v Knight, above n 31, at 589.
In Knight, the Court found special circumstances existed and granted the application. The applicant had been found guilty by a jury in the District Court of benefit fraud but had continued to contest her liability to repay the amounts received until she was vindicated in the Social Security Appeal Authority, on the basis of a decision of this Court delivered subsequent to her conviction.[33] The department then accepted Ms Knight was in fact entitled to the benefit which she had been found guilty of obtaining fraudulently. In granting the application, this Court noted it was relevant that Ms Knight had continuously asserted she was entitled to the benefit and that there was no concern granting the application would lead to a flood of similar applications.[34]
[33]At 584.
[34]At 589.
In Kriel, this Court granted Mr Lo an extension of time to appeal after a nine‑year delay. Mr Lo had been convicted of a murder, committed when he was 17 years old. The proposed appeal was against his sentence of life imprisonment with a minimum period of imprisonment of 12 years. Mr Lo’s contention was that, between his sentencing and the application for an extension of time, this Court had changed the law relating to the sentencing of young persons convicted of murder.[35] The Court considered that, despite the lengthy delay and the principle of finality, the merits of Mr Lo’s appeal meant the interests of justice favoured granting an extension of time.[36]
[35]Kriel v R, above n 30, at [2] and [35]–[44].
[36]At [111]–[116].
The principles set out in Knight and Kriel correspond with the approach taken in England and Wales. The applicant in R v Hawkins had pleaded guilty but sought leave to appeal approximately seven months out of time on the basis of an intervening decision of the House of Lords.[37] The Court of Appeal of England and Wales declined the extension of time. Lord Bingham CJ noted:[38]
Such indulgence has not traditionally been shown where the defendant, acting on advice, has pleaded guilty or where he has taken a conscious decision not to appeal.
…
That practice may on its face seem harsh. On the other hand, the consequences of any other rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back.
Counsel on behalf of the applicant suggests that there is a readily available line of demarcation which would distinguish those serving sentences from those who had completed their sentences. That, however, would not in our judgment be an altogether satisfactory line of demarcation in the case of those who are serving sentences for other offences as well as for offences against (in this case) section 15(1).
It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the reopening of convictions recorded in such circumstances. Counsel submits—and in our judgment submits correctly—that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done.
[37]R v Hawkins (1997) 1 Cr App R 234 (CA) at 235.
[38]At 239–240.
In R v Mitchell, the Court of Appeal of England and Wales granted an extension of time of four months to appeal against conviction because there was an outstanding sentence appeal. The Court considered it would be unjust to consider the sentence appeal but not the conviction appeal when it was clear the conviction would not have been entered following developments in the law.[39] The Court explicitly said:[40]
It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.
[39]R v Mitchell (1977) 65 Cr App R 185 (CA) at 189.
[40]At 189.
However, the Court went on to say:[41]
… if we were to refuse the extension of time … we should be faced with the totally unreal task of endeavouring to determine what the correct sentence was for an offence which had not been committed.
Submissions
[41]At 189.
Mr Wall, counsel for Mr Karanga, submits there would be a substantial injustice if an extension of time was not granted. He acknowledges Mr Karanga did not exercise his right of appeal immediately after his conviction, but says that is understandable given Ihaia was not decided until four years later.[42] He submits Mr Karanga could not be expected to be aware of the development in Ihaia and so the delay since the release of that decision is understandable.
[42]Ihaia v R, above n 2.
Mr Wall also submits that the importance of finality is reduced by Mr Karanga’s acknowledgement that his driving was reckless and it would be appropriate to substitute his convictions for ones of reckless driving.[43]
[43]Land Transport Act, s 35(1)(a). Pursuant to s 234 of the Criminal Procedure Act 2011, an appellate court may direct that a judgment of conviction for a different offence may be substituted for the original offence.
Finally, Mr Wall submits the question goes to Mr Karanga’s liberty; he has been recalled to prison and faces a further sentence that will be cumulative on a sentence for offending he legally could not have committed.
Ms Fenton, counsel for the Crown, acknowledges that the proposed appeal has merit. However, she submits that it appears Mr Karanga entered guilty pleas on the basis of legal advice. It could be presumed that, given the s 147 application, that advice included the possibility of an appeal. Judge Down’s judgment noted there was little authority on s 270 and the successful appeal in Ihaia demonstrates an appeal may have succeeded. That would mean Mr Karanga took a prudential decision to plead guilty.
As to the other factors, Ms Fenton submits the delay is lengthy and largely unexplained. She also contends that it is unclear what effect setting aside the convictions would have on the overall sentence imposed, given Mr Karanga was sentenced on 24 charges in total, as well as the offences related to the subsequent cumulative sentences. Aside from the upcoming sentencing on separate charges, there are no special circumstances beyond the subsequent development in the law. Overall, she submits that if an extension of time is granted in this case, it is difficult to imagine circumstances that would not warrant an extension of time.
Discussion
Four years after Mr Karanga was convicted, this Court determined in Ihaia v R, a case with facts very similar to those of Mr Karanga’s offending, that driving the wrong way on a motorway at speed was not an offence under s 270(1).[44] For convenience we set out s 270 again:
270 Endangering transport
(1)Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause danger to persons or property or with reckless disregard for the safety of persons or property,—
(a)interferes with any transport facility; or
(b)does anything to any transport facility that is likely to cause danger to persons or property.
(2)For the purposes of this section, transport facility means any vehicle, ship, or aircraft, and any property used in connection with the transportation of persons or goods; and includes equipment of any kind used in navigation or for the guidance of any vehicle, ship, or aircraft.
[44]Ihaia v R, above n 2.
The Court in Ihaia held, if the transport facility is a road, liability under s 270(1) requires that the interference be with the road itself; otherwise there is no interference with the property constituting the transport facility.[45] Similarly, if the transport facility is another vehicle, it is not interference to merely drive towards it.[46]
[45]At [35]–[36] and [41]–[42].
[46]At [43]–[44].
Counsel are agreed for the purposes of this application, that if Mr Karanga was charged with endangering transport today his charges would be dismissed as not sustainable on the facts of this case.
We agree in respect of the first two charges of endangering transport. The facts of that offending were indistinguishable from the facts in Ihaia and there was no interference with either the road or other vehicles. However, as noted above at [6], while Mr Karanga was driving the wrong way down the South Eastern Highway he collided with two other vehicles. The relevant part of the summary of facts read:
The defendant entered the South Eastern Highway in the wrong direction and drove at oncoming traffic.
The defendant collided with two vehicles that were stationary in traffic, before the stolen Toyota came to a stop.
In Ihaia, while considering what would constitute interference with another vehicle as a transport facility, this Court said:[47]
[44] … It would seem an odd use of language to say that driving towards a vehicle is doing something to it. It might be that the act would cause the driver of the vehicle approached to take evasive action, but the more straightforward way of characterising that consequence is to say that the dangerous driving has had an effect in relation to the reaction of the driver of the oncoming vehicle, not the vehicle itself. Once again, it should be emphasised that the statute requires the unlawful act to be done to the transport facility, in this case the vehicle, not the driver of it. Section 270(2) contains no reference to the driver. We consider that in the context of this statute, to do something to a vehicle requires some physical contact with it.
[47]Footnote omitted and emphasis added.
The particulars of the third charge of endangering transport did not mention the fact Mr Karanga collided with other cars, they simply stated:
Particulars: Driving the wrong way down the South Eastern Highway — viewable on the Eagle footage at approximately 16:08:10.
This point was not addressed by the parties in their submissions. Clearly the charge was not sufficiently particularised and the point was not squarely before the Court in Ihaia. Nevertheless, the merits of Mr Karanga’s proposed appeal are not as strong as suggested by counsel in respect of the third charge of endangering transport.
Even if Mr Karanga had been convicted of charges of reckless driving (to which he now says he would be happy to plead guilty) rather than endangering transport, we are not persuaded that it would have made a significant difference to the overall sentence. The facts remain the same. The overall criminality remains the same. Judge Ronayne could equally have imposed the overall sentence on the burglary charges . The Judge chose to impose concurrent rather than cumulative sentences. That was appropriate given the charges all related to the same series of offending. Had that not been the case and had cumulative sentences been imposed, the Judge still would have had to consider totality.[48]
[48]Sentencing Act 2002, s 85.
There are clearly a number of factors favouring the grant of an extension of time. The proposed appeal has merit, at least with respect to the first two charges of endangering transport. If the merits of the proposed appeal were the only consideration, then an extension would of course be granted. The Crown has also not demonstrated any particular prejudice. There are however powerful factors weighing against the grant of an extension of time, namely: the six‑and‑a‑half‑year delay is significant; the remedy sought (resentencing Mr Karanga) is to an extent impracticable given the number of charges and various sentencing exercises undertaken to date; and the impact on others similarly affected and the administration of justice are also significant.
We do not believe the interests of justice favour the grant of an extension of time. Our view would have been otherwise if we believed that the substitution of convictions for reckless driving for those of endangering transport would have made a significant difference to the overall sentence imposed on Mr Karanga by Judge Ronayne, Judge Pidwell and Judge Field. Each of the Judges had regard to the principle of totality and made significant downward adjustments in recognition of the substantive number of charges and the sentences already imposed on Mr Karanga. If convicted of reckless driving rather than endangering transport, we think it is likely some or all of the Judges would have sentenced Mr Karanga differently on the other charges he faced to reflect the overall criminality of Mr Karanga’s actions.
Mr Karanga has not alleged that there was any error in the advice given to him: clearly trial counsel was aware of the issue s 270 posed, given the arguments made in advancing the s 147 application. We do not have any evidence of the advice beyond Mr Karanga’s statement in his affidavit that he does not blame his trial counsel. Mr Karanga’s application is brought solely on the ground that there has been a change in the law. The case law is clear that something more is required.
It is useful to compare Mr Karanga’s case to the applications we discussed above at [29]–[33] because they suggest that the additional special circumstances necessary to justify an extension are not present in Mr Karanga’s case. In Kriel, the one successful applicant faced the possibility of life in prison and had a lengthy minimum period of imprisonment. This Court was prepared to grant an extension of time because it appeared the appeal against that sentence had merit and would result in a lower sentence being imposed.[49] Mr Karanga’s offending and sentence are obviously less significant than that in Kriel. Nor is the remedy sought as practicable.
[49]Kriel v R, above n 30, at [115].
Further, unlike in Knight, Mr Karanga has not maintained his innocence.[50] He pleaded guilty. As the Court in Hawkins noted, it is an unattractive proposition that those who have pleaded guilty could seek to reopen their convictions.[51]
[50]R v Knight, above n 31, at 589.
[51]R v Hawkins, above n 37, at 240.
Mr Karanga’s position is also different to the appellant in Mitchell as the sentence for the new charges is not dependent on the correctness of the previous convictions.[52] If the Court, in sentencing Mr Karanga on his most recent set of offending, was to consider the sentence imposed for the spree offending in 2017 to be of some significance, the principle of totality would suggest Mr Karanga will receive a lower sentence for the new charges if his existing sentence is not altered, in comparison to the situation if a shorter sentence were imposed by this Court. On the other hand, the sentencing Court may well consider the new charges are quite unrelated to the 2017 offending. The Court may therefore have no regard to the sentence which Mr Karanga has almost finished serving.
Result
[52]R v Mitchell, above n 39, at 189–190.
The application for an extension of time to appeal is declined.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
0
2
0