Police v Kepa HC Wellington CRI-2005-485-43

[2005] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-43

NEW ZEALAND POLICE

Appellant

v

GEORGE KEPA

Respondent

Hearing:         26 April 2005 Counsel: S Barr for Appellant

K Jefferies for Respondent Judgment:  27 April 2005

JUDGMENT OF GODDARD J

[1]    This is an appeal by the New Zealand Police, with the consent of the Solicitor General, against a sentence of 150 hours community work imposed on the respondent in the District Court on two charges of burglary. The grounds of appeal are that the sentence is both manifestly inadequate and wrong in principle.

[2]    The subject charges were two of three burglary charges faced by the  appellant when he appeared before Judge Kelly in the District Court for sentencing. At the time the appellant had 26 previous convictions for burglary as well as numerous convictions for other dishonesty offending. The majority of this offending had been committed between 1991 and 1996, during which period he had received

NZ POLICE v KEPA HC WN CRI-2005-485-43 [27 April 2005]

sentences of up to six months and 12 months imprisonment for  burglary.  In addition, he had received numerous final warnings. From 1996 on his offending decreased sharply however although he did secure a conviction for theft in 1999. Subsequently, in August 2003 he carried out a further burglary for which he was sentenced to 140 hours community work; this in April 2004. In November 2003, whilst on bail for that offending, he carried out burglaries of two adjacent commercial premises (the subject of the present appeal). Then in June 2004 he carried out a further burglary, this time of a residential address. By that time he was subject to the sentence of 140 hours community work imposed for the August 2003 burglary.

[3]    The background to the respondent’s offending is that he left home at the age of 14 years and lived on the streets, there supporting himself by recourse to criminal activity. During this time he became an abuser of alcohol and cannabis. However, with increasing maturity he has gone through something of a reformation and has now formed a relationship with a woman with no criminal connections. The couple have been together for three years and have a child together and another on the way. The respondent has apparently given up both alcohol and cannabis and been able to gain meaningful employment from time to time. He is now 30 years of age. However, acute financial pressure has, on the four occasions outlined above, caused him to revert to his criminal ways.

[4]    The probation officer who wrote his pre-sentence report noted that the respondent acknowledges guilt for his current offending and has expressed remorse and regret for it. Expressly he has noted:

Mr Kepa expressed remorse and regret for his offending. He acknowledges that he relapsed into old behaviours when faced with financial pressure. He fully accepts the reparation sought and offers his apology to the victims of his offending. He impressed as sincere in this. He is fully prepared to meet his victims face to face to offer an apology and this could be accommodated via the Restorative Justice Process.

[5]    The probation officer also noted the respondent’s willingness to address the factors identified as having contributed to his offending and considered him to be motivated to change and committed to maintaining the positive gains he has achieved in recent times. These positive gains include involvement in his partner’s

church, his efforts to obtain work and his compliance with the sentence of 140 hours community work imposed in August 2003 (only eight hours currently remain). He apparently has an offer of part-time employment which, at the time of sentencing, he had not been able to take up due to the restrictive bail conditions he had been under for some five months and which entailed a 24 hour curfew.

[6]    The appellant came before Judge Kelly for sentence on 25 February 2005. Her brief sentencing notes provide as follows:

… on CRN 8235 and 8236, which are the burglary charges alleged to have occurred between 26 September 2003 and 29 September 2003, you are convicted and sentenced to 150 hours’ community work. These  sentences are concurrent. That is a total of 150 hours. But it is cumulative on the sentence of 150 hours that was imposed on 20 April last year, of which I understand you have eight hours to complete. So you have eight hours to do and then a further 150 hours.

On CRN8237, you are further remanded on bail to 13 May 2005 at 10.00am for sentencing before me. That is to enable a restorative justice conference  to take place. I have made a note that if you are attending community work satisfactorily, and if there is no further offending and no breaches of bail, then I may consider a community based sentence in relation to that charge. Otherwise I will consider prison.

[7]    The remand to enable a restorative conference to take place relates to the burglary of the private dwelling in June 2004. Although the notice of appeal appended to the Solicitor General’s Consent to Appeal states that it includes that deferred sentence as well as the sentence of 150 hours community work imposed on the two earlier charges, the Solicitor General’s signed Consent to Appeal refers only to the charges for which the respondent has been sentenced to 150 hours community work. That would seem to follow, as there has been no final disposition of the June 2004 charge (in terms of s 115A(4) of the Summary Proceedings Act 1957). Therefore no appeal can yet lie in respect of that charge.

[8]    For the appellant Mr Barr took the approach that I should nevertheless proceed to deal with the appeal against the sentence of 150 hours community work imposed on the two earlier charges.

[9]    Mr Jefferies, however, took the approach that the appeal as a whole was premature and the appellant was seeking to arrogate the sentencing Judge’s powers.

He urged me to adjourn the appeal until the entire sentencing process had been completed. He submitted that the respondent’s offending required to be considered  in its entirety and on a totality basis and this could not be achieved until the restorative justice report was completed; a report that the Court must take into account in assessing final outcome.

[10]   Turning to the merits of the appeal, Mr Barr submitted that the respondent was properly to be characterised as a recidivist burglar who should be held accountable for the harm he has done to his victims and whose conduct was to be denounced personally and generally. He pointed to the respondent’s long history of dishonesty and other similar offending, particularly his 26 convictions for burglary. In support, he cited the cases of Senior v Police (2000) 18 CRNZ 340 and R v Southon (2003) 20 CRNZ 104 as relevant.

Discussion

[11]   The starting point for discussion is to confirm that this appeal does not encompass the charge for which sentencing has been deferred until after a restorative justice conference is held and reported on. Therefore the two charges which are properly the subject of the appeal are to be determined without reference to that outstanding charge.

[12]   The next point to consider is whether the clemency extended by Judge Kelly in relation to those two charges was a matter outside her discretion and thus wrong in principle; or whether, for the same reasons, the sentence is manifestly inadequate. In practical terms that requires an assessment as to whether the respondent’s latest and overall pattern of conduct does characterise him as a recidivist or career burglar, or whether his current offending can more properly be characterised as a fall from grace. Assessing the facts overall, as they are known, I cannot find that the approach taken by the Judge was not one that was open to her or that it was wrong in principle for her to facilitate the efforts at rehabilitation presently being shown by the respondent. On the contrary, there is ample material in the pre-sentence report upon which the Judge could validly adopt a constructive approach to this case and I see no need for correction by the High Court. In any case, the Judge has left open the

possibility of a term of imprisonment for the third charge. Whether a custodial sentence will ultimately be imposed on that charge will no doubt turn on the totality principle as well as on all of the factual considerations pertaining at that time and have regard for the relevant sentencing principles and authorities. The outcome remains entirely the province of the sentencing Judge and is subject to the exercise of her discretion.

[13]   In conclusion I am unable to find that the sentencing Judge has erred in principle or that the sentence she has imposed was outside of her discretionary range.

Conclusion

[14]The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington, for Appellant Jefferies and Razis, Wellington, for Respondent

Delivered atpm on Wednesday2005.