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Vakapora v Police

Vakapora v Police

Case [2022] NZHC 493 18 March 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000034

[2022] NZHC 493

BETWEEN
NGAMARE VAKAPORA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 March 2022

Counsel:

DP Nairn for Appellant

BA Mugisho for Respondent

Judgment:

18 March 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 18 March 2022 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. DP Nairn, Auckland.

VAKAPORA v POLICE [2022] NZHC 493 [18 March 2022]

The appeal

[1] Ngamare Vakapora received a sentence of five months’ home detention. Mr Vakapora contends the sentence is manifestly excessive because the Judge failed to adequately take into account the time he spent: (a) in custody, before sentencing; and (b) on electronically monitored bail.

[2]The law in relation to (a) is in something approaching flux.

Principle

[3] An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.1

Background

[4]Mr Vakapora committed several offences.

[5] On 5 July 2020, he drove while unlicensed. Five days later, he failed to answer Police bail for that offence. In the early hours of 16 August 2020, Mr Vakapora and two others went into a 24-hour laundromat. There, the defendants smashed a hole in the wall surrounding a money change machine. The defendants removed the machine and put it into a getaway vehicle. It was worth $12,000 and contained approximately
$10,000 (in coins). Three days later, Mr Vakapora was a passenger in a car stopped by Police. He had a methamphetamine pipe, 1.1 grams of cannabis and two .22 calibre bullets. (The driver had a .22 calibre pistol.) Overnight 20 November 2020, Mr Vakapora and another burgled a home in South Auckland. The pair stole items worth between $200–$300.

[6] Mr Vakapora was sentenced 18 January 2022 for: driving while unlicensed; failing to answer Police bail; two offences of burglary; possession of cannabis; possession of a methamphetamine pipe; and unlawful possession of ammunition.2

1 Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.
2 Police v Vakapora [2022] NZDC 554.

[7] Judge K Tan adopted a starting point of 28 months’ imprisonment on the two burglary offences; added nothing for the remaining charges; then discounted the sentence by 25 percent for Mr Vakapora’s guilty pleas and remorse. This left a notional sentence of 21 months’ imprisonment, or 10 and a half months’ home detention.

[8] Mr Vakapora had been in custody for a little over eight months. He also spent six months on electronically monitored bail. About these, the Judge said:3

I then turn my mind as to whether I should give you any credit for the time that you spent on remand in custody and your lawyer emphasises the time that you spent on EM bail. I am less inclined to give you a significant credit on the EM bail, but in terms of the time that you spent on remand,…

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 Vakapora v Police

Details

AGLC: Vakapora v Police [2022] NZHC 493
Case: [2022] NZHC 493
Decision Date: 18 March 2022

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an appeal brought by Ngamare Vakapora against a sentence of five months' home detention. Vakapora argued the sentence was manifestly excessive because the Judge failed to adequately take into account the time he spent in custody before sentencing and on electronically monitored bail. The court was required to decide whether the Judge erred in not deducting the full amount of time spent on remand and electronically monitored bail from the sentence, and if so, whether the sentence was manifestly excessive.

The court noted that the Parole Act 2002 did not apply to this case, as it concerned the administration of prison sentences. The Sentencing Act 2002 precluded a Court from taking into account time on remand when determining the length of a sentence of imprisonment, as this is the responsibility of the Department of Corrections. However, there is no legislative provision determining what effect time on remand has on a sentence of home detention. The court examined the different approaches courts have taken to this issue and concluded that the two equals one approach was appropriate in this case. The court found that the Judge did not err in relation to the discount for time on remand but found the discount for time on electronically monitored bail to be a little severe. Despite this, the court concluded that the sentence was not manifestly excessive, as the starting point for the sentence was appropriate, and the global starting point should have been higher by several to six months. The appeal was dismissed.

Orders