Karepa v Police - [2016] NZHC 789

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-4 [2016] NZHC 789

BETWEEN
TAMARA KAREPA

Appellant

AND

NEW ZEALAND POLICE Respondent

On thepapers:

Counsel:

M B Ryan for Appellant
M J Blaschke for Respondent

Judgment:

26 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

12 pm on 26 April 2016

KAREPA v NEW ZEALAND POLICE [2016] NZHC 789 [26 April 2016]

Introduction

[1] Ms Karepa was sentenced on 27 January 2016 on a charge of being in unlawful possession of a firearm and for shop lifting offences. In addition to a term of six months imprisonment and payment of $250 in reparation the Judge disqualified Ms Karepa from driving for three months. Ms Karepa appeals solely against disqualification.

District Court

[2] On sentencing in respect of the firearm charge the Judge said:1

[21] … in respect of the possession of the pistol charge a motor vehicle was involved. That has facilitated the movement and transportation of the pistol unlawfully in your possession. Under s 124 Sentencing Act there will be a disqualification order from holding or obtaining a driver’s licence for a period of three months commencing as at today’s date.

Grounds of appeal

[3] Ms Karepa says the Judge was wrong to disqualify her because the car was only incidental to the firearm offence.2 Counsel for the respondent accepts the Judge was in error on this particular point.

Decision

[4] I must allow the appeal if I am satisfied that there is an error in the sentence and that a different sentence should be imposed.3 The sentence must be manifestly excessive or be wrong in principle before the Court will interfere.4

[5] Section 124 of the Sentencing Act 2002 provides, so far as is relevant, (emphasis added):

1      New Zealand Police v Karepa [2016] NZDC 1203.
2      The relevant offence was against s 50(1)(a) of the Arms Act 1983: unlawful possession of a pistol.
3      Criminal Procedure Act 2011, s 250.
4      Tutakangahau v R [2014] NZCA 279 at [31]–[33].

124 Power of court to disqualify offenders from driving motor vehicles

(1) This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Land Transport Act 1998.

(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—

(a) the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or

(b) a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.

(3) The court may order the offender to be disqualified from holding or obtaining a driver licence within…

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: [2016] NZHC 789
Decision Date: 26 April 2016

CaseChat Overview and Summary

The High Court of New Zealand heard the case of Karepa v Police, where Ms Tamara Karepa appealed a sentencing decision made by the District Court. Ms Karepa was sentenced to six months imprisonment and a payment of $250 in reparation for unlawful possession of a firearm and shoplifting offenses. In addition, she was disqualified from driving for three months. The appeal was solely against the disqualification from driving. The District Court justified the disqualification based on the involvement of a motor vehicle in the firearm offense, which facilitated the unlawful transportation of the firearm.

The legal issue before the court was whether the District Court erred in disqualifying Ms Karepa from driving based on the use of a motor vehicle during the commission of the firearm offense. The court considered Section 124 of the Sentencing Act 2002, which allows a court to disqualify an offender from holding or obtaining a driver's license if the commission of the offense was facilitated by the use of a motor vehicle. Ms Karepa argued that the car was only incidental to the firearm offense, and the respondent conceded this point.

The court concluded that the offense was merely incidental to being in the vehicle, and Ms Karepa's possession of the pistol was not "facilitated by the use of a motor vehicle" as per Section 124 of the Sentencing Act. Consequently, the District Court was in error to disqualify Ms Karepa from driving. The appeal was allowed, and the order disqualifying Ms Karepa from driving was quashed.

Orders