Karapan v Police - [2015] NZHC 1880

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-43 [2015] NZHC 1880

BETWEEN
GANAPATHY KARAPAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 July 2015

Appearances:

S J Gray for Appellant
Z Hamill for Respondent

Judgment:

10 August 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
10 August 2015 at 5.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Public Defence Service, Auckland
Meredith Connell, Crown Solicitors, Auckland

KARAPAN v NEW ZEALAND POLICE [2015] NZHC 1880 [10 August 2015]

[1] Mr Karapan pleaded guilty, and was sentenced to nine years seven months’ imprisonment with a minimum period of imprisonment of five years, on charges of importing a class A controlled drug and possession of a class A controlled drug for the purposes of supply.

[2] Mr Karapan claims that the District Court Judge erred in imposing a minimum period of imprisonment for the following reasons:

(a) the sentencing Judge had regard to facts which were not included within the summary of facts;

(b) the sentence imposed was disparate with co-offenders; and

(c) the sentencing Judge failed to take into account the mandatory considerations in s 86 in considering whether the period otherwise applicable under s 84(1) of the Parole Act is insufficient to meet all or any of the purposes of s 86(2).

[3] As a consequence Mr Karapan submits that a different sentence should have been imposed.

Background

[4] Mr Karapan pleaded guilty to the following summary of facts.

[5] On 13 June 2014 the defendants Mr Liew and Mr Karapan arrived into New Zealand at Auckland International Airport aboard Air New Zealand flight NZ80 from Hong Kong.

[6] On the same day, the defendants Mr Ng and Ms Chong arrived into New

Zealand on the same flight as Mr Liew and Mr Karapan.

[7] When Mr Karapan arrived in New Zealand he was subject to a personal search which identified that Mr Karapan had a package located in his underwear. He was wearing underwear which had a black pocket sewn into the crotch. Inside this

pocket there were two plastic tubes, both containing a white crystal substance. The plastic tubes of crystal substance were isolated from the underwear. The substance weighed approximately 499 grams.

[8] Testing of the substance returned a positive result for the presence of drugs. Mr Karapan was subsequently interviewed by Customs Officers. During that interview Mr Karapan stated he flew with Mr Liew from Malaysia to Macau. He said he had known Mr Liew for approximately two to three years.

[9] At Macau Airport, they had met the person who arranged and funded their travel to New Zealand. Mr Liew and Mr Karapan were directed to the location of the drugs and two pairs of underwear which were in a bag next to a waterfall inside a casino. Mr Karapan saw the bags of crystal in the underwear and suspected this was “ice”.

[10] Mr Karapan stated he put on the underwear…

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.

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Details

Case: [2015] NZHC 1880
Decision Date: 10 August 2015

CaseChat Overview and Summary

The appeal in Karapan v Police was heard by Whata J in the High Court of New Zealand. The appellant, Mr Karapan, was sentenced to nine years and seven months’ imprisonment with a minimum period of imprisonment of five years for importing a class A controlled drug and possession of a class A controlled drug for the purposes of supply. Mr Karapan argued that the District Court Judge had erred in imposing a minimum period of imprisonment for various reasons, including the imposition of a sentence disparate with co-offenders and the failure to take into account the mandatory considerations in s 86 of the Sentencing Act 2002. The court examined whether the judge had erred in her assessment of Mr Karapan’s culpability and the criteria set out at s 86 of the Sentencing Act 2002. The judge found that the evidence did not support the inference that Mr Karapan was a “middle man” and that the judge had not erred in terms of the assessment of culpability. The judge concluded that a minimum period of imprisonment was appropriate in light of the criteria set out at s 86, and that the differences in the sentence were due to legitimate reasons, including less overall culpability, different personal discounting factors, and the assistance afforded by co-offenders to the police. The appeal was dismissed.

If any further orders are required, they will be made following the dismissal of the appeal.

Orders