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 judgment of Arahanga v R.2    In that case, the Court made reference to the absence of any tariff for burglary:3

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.  Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.  Dwelling-house

1      Senior v Police (2000) 18 CRNZ 340 (HC); R v Povey [2009] NZCA 362; Rota v R [2012] NZCA 49; Mita v R [2012] NZCA 137; Dixon v Police [2013] NZHC 1469; Tepania v Police [2013] NZHC 2327; Kati v Police HC Napier CRI-2011-441-000019, 11 July 2011.

2      Arahanga & Withington v R [2012] NZCA 480; [2013] 1 NZLR 189.

3 At [78].

burglaries at the relatively minor end of the scale tend to attract a starting point   of   approximately   18   months   to   two   years   and   six   months’ imprisonment.

(Citations omitted)

[8]      In the Crown’s submission, the District Court’s starting point fell within the range available.   Both counsel however acknowledged that Judge Couch did not strictly follow the structured approach to sentencing of the type summarised in R v Clifford.4   That is unsurprising having regard to the exigencies of a busy list Court. However, adopting that approach for the purposes of the appeal does reveal that the starting point may have been too high.

[9]      On behalf of Mr Kopara it was stressed that the burglary was committed when he knew there was no risk of physical confrontation or threat to the occupants and that the offending was opportunistic in nature.  There can be little doubt that the heightened  risk  of  confrontation  with  occupants  is  what  makes  burglary  of  a domestic residence a serious offence.   That aggravating feature was absent in the present case.  Against that however, as Judge Couch observed, there was a breach of trust.   Mr Kopara took advantage of people in whose house he had a short time before been a guest and took advantage of the knowledge of the premises previously gained to locate items that he wanted to steal.  To be added to that is the fact that the burglary was of a residential dwelling and took place at night.   Significantly, the items taken were valued at more than $6,000.  The feelings of invasion and violation are no less because the occupants were not home at the time.

[10]     In my view, these considerations would place the burglary within the mid- range of the scale identified by the Court of Appeal in Arahanga, which is close to the initial starting point taken by the Judge of 2 years and 3 months imprisonment. To be added to that are the aggravating personal factors which include Mr Kopara’s previous convictions which relevantly include aggravated robbery and his previous burglary offending, albeit in the Youth Court.  Mr Kopara was subject to a sentence, and on bail at the time he committed the burglary.  An uplift of 4 months to reflect those  factors  would  not  have  been  inappropriate.    It  therefore  follows  that  the

starting point of 3 years was too high and requires adjustment.

4      R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

Final sentence

[11]     Judge   Couch   reduced   his   3   year   starting   point   by   10   months   in acknowledgment of Mr Kopara’s guilty plea and remorse.   This amounts to a reduction of approximately 28%.   In my view, Mr Kopara was not entitled to any discount for remorse.  He has refused to identify his co-offender or provide Police with information as to where the missing property could be located which would have been an indicator of true remorse.   He did however plead guilty at an early stage in the proceeding, and in accordance with the sentencing Judge’s approach a

25% credit can be extended to him. Applying such deduction to the starting point of

31 months imprisonment, results in a final sentence of 23 months imprisonment.

[12]     Accordingly, the appeal is allowed.  In substitution of the sentence of 2 years and 2 months imprisonment for the burglary, I substitute a sentence of 1 year and 11 months.  The adjustment of 3 months is in danger of constituting tinkering but the adjustment should, in my view, be made.  The 1 month imprisonment to mark the breath alcohol charge and breach of Court bail remain unchanged, resulting in a total sentence of 2 years. The reparation order in the sum of $150 stands.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly, Christchurch