KAPEA v NEW ZEALAND POLICE [2019] NZHC 1453

KAPEA v NEW ZEALAND POLICE [2019] NZHC 1453 [25 June 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-0039[2019] NZHC 1453BETWEEN TIPENE MIKAIRE KAPEAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 June 2019Appearances: C D Bean for the appellantS F Gilbert for the respondentJudgment: 25 June 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:Charles Denby Bean, Barrister, HamiltonAlmao Douch, Hamilton[1] Tipene Kapea appeals his sentence of two years and one month's imprisonmentimposed by Judge Spear in the District Court at Hamilton on 15 May 2019.1 Thatsentence was imposed in respect of 13 charges of dishonestly using a document,2 andone charge each of burglary,3 breach of court release conditions,4 and failure to answerDistrict Court bail.5[2] The case came before Judge Spear for a sentencing indication on 6 March2019.6 The indication given was no more than 30 months' imprisonment, less a 25 percent discount in respect of any guilty plea entered in accordance with the indication,and subject to any further downwards adjustments required by the offender's personalcircumstances.7 This indication was accepted.Background[3] The burglary was of a residential property in Hamilton's Whitiora. On theafternoon of 11 January 2019, Mr Kapea unlatched a window, entered the house, andstole several items, including some credit cards. The total value of goods stolen was$2019. The dishonesty charges related to Mr Kapea's use of the stolen credit cards tomake 13 purchases, the total value of which were $600. Mr Kapea has thirteen priorconvictions for dishonest offending, this being his seventh burglary conviction. Hislast four convictions are all for burglary: he was sentenced to two years and sixmonths' imprisonment in 2015, and one year and five months' imprisonment in 2017.[4] In his sentence indication, Judge Spear indicated this previous offending wouldattract an uplift of up to six months from the 18-month starting point he adopted inrespect of the index burglary offending. The Judge uplifted that by a further six monthsto "reflect the other offending"8, producing the maximum thirty-month starting point.1 Police v Kapea [2019] NZDC 9200.2 Crimes Act 1961, s 228(1)(b). Maximum penalty 7 years' imprisonment.3 Crimes Act 1961, s 231. Maximum penalty 10 years' imprisonment.4 Sentencing Act 2002, s 96(1). Maximum penalty 1 year's imprisonment.5 Bail Act 2000, s 38(a). Maximum penalty 1 year's imprisonment.6 Police v Kapea DC Hamilton CRI-2019-019-261, 6 March 2019.7 At [4]-[5].8 At [4].The Judge referred to the charge of breaching release conditions, saying it "would beconsidered as part and parcel of that approach".9[5] On 15 May 2019, Judge Spear adopted a sentence of 23 months' imprisonmentin respect of the burglary and dishonesty offending, including a six-month uplift forhis previous offending and a 25 per cent discount (from 30 months' imprisonment). Inaddition to this, the Judge imposed a cumulative two-month sentence in respect of acharge of breaching release conditions, resulting in the 25-month end sentence. Noreference to the charge of failing to answer District Court bail appears in the Judge'ssentencing notes. That charge was not laid until 14 March 2019; that is, after thesentence indication was given.Issues on appeal[6] Mr Kapea's counsel, Charles Bean, says the sentence imposed was manifestlyexcessive and plainly wrong, being greater than the sentence indicated. He focuses onthe additional sentence of some two months' imprisonment imposed cumulatively onthe 23-month sentence. He says, as this charge was part of the sentence indication, theJudge erred in imposing a sentence greater than that indicated by reason of the breachof release conditions charge. He also says, as 25 per cent of 30 months is seven-and-a-half months, the Judge also exceeded the indicated sentence by arriving at a sentenceof 23 months following the guilty plea discount.Approach to appeals against sentence[7] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.10 In any other case, I mustdismiss the appeal.11 The approach previously taken by courts on sentencing appealscontinues to apply;12 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentencing appeals.13 Iwill not intervene where the sentence is within a range properly justified by accepted9 At [5].10 Criminal Procedure Act 2011, s 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].13 At [33] and [35].sentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.14 If required to reviewthe sentence given, I am not bound by the sentencing indication.15Discussion[8] There is inconsistency on the part of first appeal courts as to whether a within-range end sentence, but not conforming to a sentencing indication, should be modifiedto conform to that indication.16 I (and other judges of this Court) doubt it.17 Subject tonew and material information arising subsequently, while a sentencing indication isbinding on the judicial officer who gave it,18 it is not binding on other judicialofficers,19 or (as I have said) on me on appeal. Rather the usual standard forintervention applies: there must be error in the sentence, and a different sentenceshould be imposed.[9] It is unclear if – in his sentence indication, by 'part and parcel' – Judge Spearmeant it incorporated the charge of breaching release conditions. It also is unclear if,in his sentencing, Judge Spear misstated that reference (to the charge of breachingrelease conditions) for the new charge of failing to answer District Court bail. Giventhe new charge, I do not see how Mr Kapea could have expected Judge Spear to beconstrained to his sentence indication. But Judge Spear erred: either in varying fromthe indicated sentence, without establishing his satisfaction it was affected by newmaterial information (if that was as to the new charge, although strictly speaking thatis not information affecting the indicated sentence); or, more likely, in not referring tothe new charge.[10] Either way, I therefore must consider if the 25-month end sentence for all thecharges is consistent with generally accepted sentencing principle. If it is, I mustdismiss the appeal.14 Ripia v R [2011] NZCA 101 at [15].15 Boyce v R [2014] NZCA 295 at [32].16 See GG Hall Hall's Sentencing (online ed, LexisNexis) at [APPI.2.11(e)].17 Wilson v R [2015] NZHC 298; Appuhamilage v Police [2015] NZHC 2355; Scoles-Young v Police[2016] NZHC 1120; and Nuku v R [2016] NZHC 2255.18 Criminal Procedure Act 2011, s 116(2).19 Section 116(3).[11] Given the range of circumstances in which it arises, the index offence ofburglary has no tariff case. But a starting point for low-level – that is, withoutsignificant aggravating features in the means, conduct, or result of the offending –burglary of a dwelling house is in the range of two years, plus or minus six months.20Uplifts are appropriate for recidivist burglary offending,21 and Mr Kapea's six-monthuplift for previous offending is modest by comparison, and the six-month uplift for hisrelated offending is comparable. After full discount for guilty pleas, a 26-27 monthsentence results. From that perspective, even disregarding the new charge, the 25-month end sentence under appeal is not 'manifestly excessive'.Result[12] The appeal is dismissed.—Jagose J20 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]-[79]; and Gorgus v R CA706/2015,19 October 2016 at [4] and [10].21 R v Columbus [2008] NZCA 192 at [15]-[20] (uplifts of 12 months for significant previousdishonesty offending, and six months for related offending).