Kopara v Police

[2012] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-286 [2012] NZHC 2683

DENNIS KOPARA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 October 2012

Counsel:         M Kan for the Appellant

W Fotherby for the Respondent

Judgment:      15 October 2012

(ORAL) JUDGMENT OF WOOHDOUSE J

Solicitors / Counsel:

Mr M Kan, Michael Kan Law, Solicitor, Auckland

Mr W Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

KOPARA V POLICE HC AK CRI-2012-404-286 [15 October 2012]

[1]      Mr Kopara appeals against a sentence of 12 months imprisonment for six offences.  The sentence was imposed on 21 August 2012.  There were two offences of unlawfully getting into a car, two of unlawfully taking a car (or attempting), one of possession of instruments for car conversion and one of driving while disqualified on a third or subsequent occasion.

[2]      The central issue on this appeal is the effect of the calculation under the Parole Act 2002 of time served by Mr Kopara for the purposes of release.   The Crown agrees with the appellant’s submission that a relevant matter was not drawn to the Judge’s attention and that in consequence, for technical reasons, the appeal should be allowed.   Mr Kan, on behalf of Mr Kopara, properly and responsibly accepts that he should have been more alert and drawn this matter to the Judge’s attention, being the matter I will come to in a moment.

[3]      I need to provide a brief background to explain the reasons for this decision.

[4]      There were two offences in December 2011 and four in January 2012.  Mr Kopara appeared for the January offences on 11 January 2012 and was remanded in custody from that date.  He first appeared on one of the December offences on 23

April 2012 and on the other December offence on 5 July 2012.

[5]      He appeared for sentence for the January offences on 21 August 2012.  He also appeared on that date for a status hearing for the December offences.  He sought a sentence indication for all six offences.   The indication was 12 to 15 months imprisonment.  He then pleaded guilty to the two December offences and was then sentenced to 12 months imprisonment for each of the six offences.

[6]      It  is  not  in  issue  that  Mr  Kopara  accepted  this  indication  with  an understanding, on the basis of Mr Kan’s advice to him, that time in custody on remand since January would be taken into account for all sentences.  Plainly it had to be taken into account from January in respect of the offences for which he was first remanded in January, but the consequences for the two other offences simply were overlooked.   This point was not drawn to the Judge’s attention.   Had it been it is

likely that an allowance would have been made in an appropriate way.   However, because the sentences imposed were 12 months for each offence, the Corrections Department has calculated a release date for the December offences from the dates of remand, the earliest being April 2012.   I am advised that the calculation of the earliest release date is January 2013 which obviously runs from the first appearance on 5 July 2012.

[7]      As earlier indicated, the Crown accepts that for these technical reasons, not reflecting in any way on the Judge’s approach, the appeal should be allowed.  The appropriate way to deal with this is to confirm Mr Kopara’s conviction for the two December offences and discharge him on those offences.

Result

[8]      The appeal is allowed.

[9]      On CRN 12004009563 and CRN 12004006254 the appellant is convicted and discharged.

[10]     In all other respects the sentence is affirmed.

Woodhouse J