KAREPA v NEW ZEALAND POLICE [2016] NZHC 789

KAREPA v NEW ZEALAND POLICE [2016] NZHC 789 [26 April 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI 2016-454-4[2016] NZHC 789BETWEEN TAMARA KAREPAAppellantAND NEW ZEALAND POLICERespondentOn the papers:Counsel: M B Ryan for AppellantM J Blaschke for RespondentJudgment: 26 April 2016JUDGMENT OF CLARK JI direct that the delivery time of this judgment is12 pm on 26 April 2016Introduction[1] Ms Karepa was sentenced on 27 January 2016 on a charge of being in unlawful possession of a firearm and for shop lifting offences. In addition to a term of six months imprisonment and payment of $250 in reparation the Judge disqualified Ms Karepa from driving for three months. Ms Karepa appeals solely against disqualification.District Court[2] On sentencing in respect of the firearm charge the Judge said:1[21] in respect of the possession of the pistol charge a motor vehiclewas involved. That has facilitated the movement and transportation of the pistol unlawfully in your possession. Under s 124 Sentencing Act there willbe a disqualification order from holding or obtaining a driver's licence for a period of three months commencing as at today's date.Grounds of appeal[3] Ms Karepa says the Judge was wrong to disqualify her because the car was only incidental to the firearm offence.2 Counsel for the respondent accepts the Judge was in error on this particular point.Decision[4] I must allow the appeal if I am satisfied that there is an error in the sentence and that a different sentence should be imposed.3 The sentence must be manifestly excessive or be wrong in principle before the Court will interfere.4[5] Section 124 of the Sentencing Act 2002 provides, so far as is relevant, (emphasis added):1 New Zealand Police v Karepa [2016] NZDC 1203.2 The relevant offence was against s 50(1)(a) of the Arms Act 1983: unlawful possession of a pistol.3 Criminal Procedure Act 2011, s 250.4 Tutakangahau v R [2014] NZCA 279 at [31]–[33].124 Power of court to disqualify offenders from driving motor vehicles(1) This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Land Transport Act 1998.(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—(a) the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or(b) a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.(3) The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.[6] What is required before it can be said an offence has been facilitated by the use of a motor vehicle?[7] Counsel for Ms Karepa helpfully referred to several decisions bearing on the issue.5[8] In Leonard v Police the appellant pleaded guilty to possession of cannabis found in the back seat of the vehicle he was in when he consented to it being searched. Anderson J in allowing the appeal said:6There may well be occasions where the use of a vehicle for the transportation of prohibited substances would render it desirable that a disqualification order be made. Where, however, the transportation is merely an incident of possession as is the case here, the circumstances must be looked at carefully to ensure that an injustice is not done either to the accused on the one hand or the interests of the community on the other.5 Pottinger v Police HC Christchurch AP 14/86, 26 June 1986; R v Barclay CA419/97, 3 December 1997; Leonard v Police (1988) 3 CRNZ 208.6 At 209.[9] Ms Karepa was a passenger travelling in a car which the Police stopped for the purpose of a search. Ms Karepa was found with the pistol hidden in her clothing. In a video interview with the Police Ms Karepa said when the car was stopped by the Police she panicked and, from the foot well of the front passengers seat, she picked up the pistol and hid it in her pants. She wished she had just left it alone.[10] There is no suggestion that Ms Karepa was in possession of the firearm while entertaining the possibility of committing an offence and that she was travelling by car to promote that unlawful purpose or to make it easier to carry out.[11] The Police did not contest that Ms Karepa's possession of the pistol onlybegan when the car was pulled over and she concealed the weapon from them. Responsibly, counsel for the respondent accepted that the motor vehicle was not, in the literal sense of the word, being used at the time Ms Karepa began to possess the pistol.Conclusion:[12] The offence (of being in possession of the firearm) was merely incidental to being in the vehicle.[13] Consequently, Ms Karepa's possession of the pistol was not "facilitated by the use of a motor vehicle" in terms of s 124 of the Sentencing Act.[14] The Judge was accordingly in error to disqualify Ms Karepa from driving.Result[15] The appeal is allowed. The order disqualifying Ms Karepa from driving is quashed._____________________________Karen Clark JSolicitors:M B Ryan, Palmerston for AppellantCrown Law Office, Wellington for Respondent