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 the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.

[6]      What is required before it can be said an offence has been facilitated by the use of a motor vehicle?

[7]      Counsel for Ms Karepa helpfully referred to several decisions bearing on the issue.5

[8]      In Leonard v Police the appellant pleaded guilty to possession of cannabis found in the back seat of the vehicle he was in when he consented to it being searched. Anderson J in allowing the appeal said:6

There  may  well  be  occasions  where  the  use  of  a  vehicle  for  the transportation of prohibited substances would render it desirable that a disqualification  order  be  made.    Where,  however,  the  transportation  is merely an incident of possession as is the case here, the circumstances must be looked at carefully to ensure that an injustice is not done either to the accused on the one hand or the interests of the community on the other.

5      Pottinger  v  Police  HC  Christchurch  AP  14/86,  26  June  1986;  R  v  Barclay  CA419/97,

3 December 1997; Leonard v Police (1988) 3 CRNZ 208.

6      At 209.

[9]      Ms Karepa was a passenger travelling in a car which the Police stopped for the purpose of a search.  Ms Karepa was found with the pistol hidden in her clothing. In a video interview with the Police Ms Karepa said when the car was stopped by the Police she panicked and, from the foot well of the front passengers seat, she picked up the pistol and hid it in her pants.  She wished she had just left it alone.

[10]     There is no suggestion that Ms Karepa was in possession of the firearm while entertaining the possibility of committing an offence and that she was travelling by car to promote that unlawful purpose or to make it easier to carry out.

[11]     The Police did not contest that Ms Karepa’s possession of the pistol only began when the car was pulled over and she concealed the weapon from them. Responsibly, counsel for the respondent accepted that the motor vehicle was not, in the literal sense of the word, being used at the time Ms Karepa began to possess the pistol.

Conclusion:

[12]     The offence (of being in possession of the firearm) was merely incidental to being in the vehicle.

[13]     Consequently, Ms Karepa’s possession of the pistol was not “facilitated by the use of a motor vehicle” in terms of s 124 of the Sentencing Act.

[14]     The Judge was accordingly in error to disqualify Ms Karepa from driving.

Result

[15]     The appeal is allowed.  The order disqualifying Ms Karepa from driving is quashed.

Karen Clark J

Solicitors:

M B Ryan, Palmerston for Appellant
Crown Law Office, Wellington for Respondent