Kopara v Police - [2014] NZHC 2222

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-71 [2014] NZHC 2222

BETWEEN
GORDON NICCI MANA HARR

KOPARA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2014

Appearances:

P Johnson for Appellant
A Williams and C Martin for Respondent

Judgment:

12 September 2014

JUDGMENT OF MANDER J

[1] Gordon Kopara appeals his sentence of 2 years and 2 months imprisonment imposed on one charge of burglary. He was also sentenced to a cumulative term of 1 month’s imprisonment for driving with excess breath alcohol, and a further concurrent 1 month’s imprisonment for breach of parole.

[2] It is only the burglary sentence which is the subject of appeal. Mr Kopara submits the starting point adopted was manifestly excessive and that a disproportionate uplift was imposed for previous convictions.

[3] The burglary occurred when Mr Kopara and an unknown person gained entry to a house which resulted in the theft of property valued at $6,610. Mr Kopara had earlier that night been socialising at the address. He and the occupants of the house had decided to go into town and left the address, however there was some kind of disagreement regarding transport and, while others left to go into town, Mr Kopara did not. He took the opportunity, in the absence of the occupants of the address, to
burgle the house. None of the property has been recovered.

KOPARA v NEW ZEALAND POLICE [2014] NZHC 2222 [12 September 2014]

[4] In sentencing Mr Kopara, Judge Couch noted a number of aggravating features. These included the fact the offending took place at night, the value of the property stolen for the purpose of subsequent sale, that the property was a residential dwelling, that Mr Kopara was subject to a sentence at the time and was also on bail. Judge Couch also referred to the breach of trust, in that Mr Kopara had earlier been at the house as a guest.

[5] The sentencing Court took a starting point of 2 years and 3 months to which was added 9 months in recognition of these aggravating factors. To recognise Mr Kopara’s guilty plea and acknowledgment of a measure of remorse, the sentence was reduced by 10 months, leading to a final sentence of 2 years and 2 months imprisonment for the burglary.

Starting point

[6] Mr Kopara contends that the appropriate starting point for the offending should have been limited to a sentence between 18-20 months imprisonment, but no higher. Reference was made to various examples of sentences imposed for burglary and the aggravating features associated with different categories of burglary. These included where a number of offenders were involved in the burglary, where multiple burglaries have occurred, where there has been physical confrontation with an
occupant, and what were described as lower level single burglaries.1 It was

submitted that comparison with these cases illustrated that the 3 year starting point before deduction for personal mitigating factors was excessive.

[7] For the Crown, reference was made to the Court of Appeal…

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.

Continue reading Kopara v Police

Details

AGLC: Kopara v Police [2014] NZHC 2222
Case: [2014] NZHC 2222
Decision Date: 12 September 2014

CaseChat Overview and Summary

Gordon Kopara appeals against his sentence of 2 years and 2 months imprisonment for burglary, with an additional 1 month for driving with excess breath alcohol and a concurrent 1 month for breach of parole. The High Court of New Zealand considered whether the starting point and subsequent uplift for the burglary sentence were appropriate. The burglary occurred when Mr Kopara and an unknown person gained entry to a house, resulting in the theft of property valued at $6,610. The sentencing court adopted a starting point of 2 years and 3 months, to which 9 months was added for aggravating factors, then reduced by 10 months for Mr Kopara's guilty plea and acknowledgment of remorse, leading to a final sentence of 2 years and 2 months imprisonment for the burglary. Mr Kopara argued that the starting point was too high and that the uplift was disproportionate. The Court found that the starting point was excessive, placing the burglary within the mid-range of the scale identified by the Court of Appeal in Arahanga. The Court also found that Mr Kopara was not entitled to a discount for remorse due to his refusal to identify his co-offender or provide information on the location of the stolen property. The appeal was allowed, and the sentence was reduced to 1 year and 11 months imprisonment for the burglary, with the 1 month imprisonment for the breath alcohol charge and breach of Court bail remaining unchanged. The reparation order in the sum of $150 stands.

Orders