Rapana v The Queen - [2018] NZHC 1829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-183

[2018] NZHC 1829

BETWEEN
ISAAC RAPANA

Appellant

AND

THE QUEEN

Respondent

Hearing: 23 July 2018

Appearances:

C Oxnam and G Vear for Appellant R Gibbs for Respondent

Judgment:

23 July 2018

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal against sentence]

RAPANA v R [2018] NZHC 1829 [23 July 2018]

[1] Mr Rapana pleaded guilty in the District Court to two charges of fraudulently using a document for a pecuniary advantage, six charges of obtaining a pecuniary benefit by deception, one charge of misusing a telephone and one charge of accessing a computer system for a dishonest purpose. On 16 March 2018, Judge McNaughton sentenced Mr Rapana to three years four months imprisonment on all charges other than that of misusing a telephone and accessing a computer system for a dishonest purpose.1 He imposed concurrent sentences of one month’s imprisonment, and two years imprisonment respectively in relation to those charges. The Judge also ordered Mr Rapana to pay reparation in the sum of $15,000.

[2] Mr Rapana appeals against sentence on the basis that the Judge adopted a starting point that was too high. He is also said to have adopted an uplift in relation to the telephone and computer charges that was too high, and applied an uplift for previous convictions that was too high. These errors led to the Judge imposing a sentence that was manifestly excessive.

The facts

[3] The facts setting out the details of the offending were contained in a caption summary that Mr Rapana accepted for sentencing purposes.

[4] The two charges of fraudulently using a document to obtain a pecuniary advantage were laid as a result of acts undertaken by Mr Rapana whilst he was in the employment of a company that designed and manufactured portable buildings. Mr Rapana had access to a company credit card that was only to be used to purchase items associated with the company’s business. Between 16 February and 12 March 2016 Mr Rapana used his credit card to top up his personal account with the Totalisator Agency Board. During this period he used the credit card on 36 separate occasions to provide himself with a total benefit of $7,243.

[5] The second charge related to the use of company cheques between 20 January 2016 and 4 March 2016. During this period Mr Rapana’s employer provided him with nine company cheques that were intended to be used to pay Council consent fees on

1 R v Rapana [2018] NZDC 5168.

behalf of customers. Mr Rapana requested that the cheques be made out to cash so that he could pay for the consent fees using his credit card and thereby obtain air points. He would then reimburse himself by means of the cheques. In all but one case, Mr Rapana cashed the cheques to their full value and retained the funds for his own purposes. He obtained…

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 Rapana v The Queen

Details

AGLC: Rapana v The Queen [2018] NZHC 1829
Case: [2018] NZHC 1829
Decision Date: 23 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Isaac Rapana appealed against his sentence on charges of fraudulent use of documents, obtaining a pecuniary benefit by deception, misusing a telephone, and accessing a computer system for a dishonest purpose. The case was heard by Judge Lang on 23 July 2018. The key legal issues were whether the starting point for the sentence, the uplift for the additional charges, and the uplift for previous convictions were appropriate. Ms Oxnam, for the appellant, argued that the starting point was too high and that the uplifts were excessive, resulting in a manifestly excessive sentence.

The court considered the starting point, noting the repetitive nature of the offending, breach of trust, and significant loss caused to six customers. The court found a starting point of three years six months imprisonment was justified. Regarding the uplift for the telephone and computer charges, the court found the uplift was appropriate given the similar offending that occurred while the appellant was on bail. The court also considered the uplift for previous convictions, noting the relevance of the appellant's prior dishonesty convictions and his failure to learn from them. However, the court found the discount applied for rehabilitative efforts and acceptance of responsibility was generous, mitigating concerns about the level of uplift.

Ultimately, the court found that the sentence was not manifestly excessive, and the appeal against the sentence was dismissed. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence would stand.

Orders