Kapa v R Sc

JurisdictionNew Zealand
JudgeChambers J
Judgment Date07 August 2012
Neutral Citation[2012] NZSC 119
Docket NumberSC 114/2011
CourtSupreme Court
Date07 August 2012
James Joseph Kapa
and
The Queen

[2012] NZSC 119

Court:

Elias CJ, McGrath, William Young, Chambers and Glazebrook JJ

SC 114/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal on question of whether sentence of reparation complied with the requirements of s32 Sentencing Act 2002 (sentence of reparation) — appellant stole number of gallantry medals — medals subsequently returned anonymously in exchange for reward provided by two donors — police eventually apprehended appellant and another who pleaded guilty to burglary — common ground that $100,000 had gone to each of offenders — appellant sentenced to imprisonment and sentence of reparation in sum of $100,000 imposed — whether reward donors were persons for whose benefit a sentence of reparation could be made.

Counsel:

M A Edgar for Appellant

A Markham and P D Marshall for Respondent

  • A The appeal is allowed.
  • B The sentence of reparation is quashed.
JUDGMENT OF THE COURT
REASONS

Elias CJ, McGrath, William Young and Chambers JJ

[1]

Glazebrook J

[39]

ELIAS CJ, MCGRATH, WILLIAM YOUNG AND CHAMBERS JJ

(Given by Chambers J)

Theft of gallantry medals
1

On 2 December 2007 two men burgled the National Army Museum at Waiouru and stole 96 gallantry medals. The theft of the medals caused much consternation throughout the country: among the medals stolen were nine Victoria Crosses, including the VC and Bar awarded to Charles Upham, the only VC and Bar ever awarded to a fighting solider.

2

On 17 December 2007 the Commissioner of Police decided to offer a reward of up to $300,000 “for material information or evidence, which leads to the identity and conviction of any person or persons responsible for the burglary of the Waiouru Army Museum, the subsequent receiving of any proceeds from that burglary, and/or the recovery of the stolen medals”. The Commissioner further advised that he would “determine the amount of the reward and [would], if necessary, apportion payment where there is more than one claimant”. The Commissioner has over the years often offered rewards for information leading to the identification of criminals responsible for particular crimes. 1 On this occasion two people, Lord Ashcroft and Tom Sturgess, had offered to fund a reward if the Commissioner saw fit to offer one.

3

In January 2008 Christopher Comeskey, an Auckland lawyer, approached the police offering a deal under which the medals would be returned in exchange for the reward. Mr Comeskey did not disclose the names of his clients. The Commissioner and Mr Comeskey struck a deal. The medals were returned in February 2008. The police paid in excess of $200,000 under the agreement. 2

4

The police continued to hunt for the thieves. Eventually they arrested James Kapa, the appellant, and Ronald Van Wakeren and charged them with burglary. First Mr Van Wakeren and later Mr Kapa pleaded guilty. It turned out that

these men had been Mr Comeskey's clients. It is now common ground that $100,000 of the reward money had gone to Mr Van Wakeren and another $100,000 to Mr Kapa. 3 Mr Van Wakeren repaid his share of the reward to the Commissioner, but Mr Kapa did not
5

Mr Kapa came up for sentence in the District Court at Auckland on 26 August 2010. Judge Hubble sentenced him to imprisonment. 4 He also imposed a sentence of reparation in the sum of $100,000. Mr Kapa appealed. The Court of Appeal reduced slightly the term of imprisonment. 5 The Court of Appeal dismissed the appeal against the sentence of reparation. 6

6

Mr Kapa sought leave to appeal to this Court. This Court declined leave with respect to the proposed appeal against the sentence of imprisonment but granted leave on the question of whether the sentence of reparation complied with the requirements of s 32 of the Sentencing Act 2002. 7

7

The essential issue for our determination is whether Lord Ashcroft and Mr Sturgess are persons for whose benefit a sentence of reparation can be made. It appears this was simply assumed to be the case in the District Court: Mr Kapa's then counsel (not Mr Edgar) made no submissions at all on the issue of reparation. The Court of Appeal appears to have been primarily concerned with the appeal against the sentence of imprisonment. All the Court said, in dismissing the appeal against the sentence of reparation, was:

[39] We are not satisfied that the Judge was wrong to impose a sentence of reparation. There is jurisdiction to do so and the appellant has not shown that the Judge erred in making the order.

Were Lord Ashcroft and Mr Sturgess persons for whose benefit a sentence of reparation could be made?
8

Section 32 read, at the relevant date, as follows:

32 Sentence of reparation

  • (1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer –

    • (a) loss of or damage to property; or

    • (b) emotional harm; or

    • (c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

  • (2) Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4.

  • (3) In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage.

  • (4) Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.

  • (5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

  • (6) When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

  • (7) The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage.

  • (8) Nothing in section 320 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 applies to sentencing proceedings.

9

Ms Markham, for the Crown, submitted the sentence of reparation was rightly imposed because Mr Kapa, through or by means of the offence of burglary, caused Lord Ashcroft and Mr Sturgess to suffer a loss of property (subs (1)(a)) or loss consequential on a loss of property (subs (1)(c)). She submitted the case could come within either paragraph, although she expressed a preference for para (a). Is this submission right?

10

The essential premise of the Crown's argument was that any “person” could potentially be the recipient of a sentence of reparation. The person did not need to be a victim, save in the case of reparation in respect of emotional harm, where subs (2) limited the range of recipients to victims. The presence of subs (2), Ms Markham said, strengthened the Crown's argument that non-victims could recover in respect of loss of or damage to property or loss or damage consequential on loss of or damage to property.

11

It is this essential premise we are unable to accept. For reasons we shall explain, only victims can be the recipients of a sentence of reparation. The key to understanding the purport of s 32 is its interrelationship with the definition of victim in s 4 of the Sentencing Act.

12

Section 32(1) permits reparation in three circumstances, which we consider in turn. First, in para (a) is “loss of or damage to property”. “A person who, through, or by means of, an offence committed by another person, suffers … loss of, or damage to, property” is a victim in terms of para (a)(ii) of the definition of victim in s 4 of the Sentencing Act.

13

Paragraph (b) deals with emotional harm. A person who, through or by means of an offence, suffers only emotional harm is not a victim within the definition of victim in s 4. Because Parliament did not intend non-victims to be the recipients of a sentence of reparation, it provided in subs (2) that a person could recover for emotional harm only if that person could be shown to be a victim as defined. That is to say, it would need to be shown that the recipient met one or more of the following criteria: 8

  • (i) a person against whom an offence is committed by another person;

  • (ii) a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; …

  • (iii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; …

  • (iv) a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; …

14

Paragraph (c) of s 32(1) deals with consequential loss or damage. At first blush it might not be completely clear whether someone who suffers consequential damage must be a victim himself or...

To continue reading

Request your trial
2 cases
  • Norris v R
    • New Zealand
    • Court of Appeal
    • 31 October 2013
    ...(repealed from 1 July 2013 by the Criminal Procedure Act 2011). 50 Norris v R [2012] NZHC 2212. 51 Sentencing remarks, above n 2, at [7]. 52 Kapa v R [2012] NZSC 119, [2013] 3 NZLR 1 at [11] per Elias CJ, McGrath, William Young and Chambers when Mr Savage was dealing with the audit of Norr......
  • Balajadia v R
    • New Zealand
    • Court of Appeal
    • 8 November 2018
    ...Sentencing Act 2002, s 4. The Supreme Court has confirmed that these definitions are “the same or substantially the same”: Kapa v R [2012] NZSC 119, [2013] 3 NZLR 1 at [27] and Jane v Police HC Christchurch AP243/87, 9 March 1988 at 9. Kapa v R, above n 15, at [92]–[93], citing United Natio......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT