Kapa v R Sc

JurisdictionNew Zealand
CourtSupreme Court
JudgeChambers J
Judgment Date07 August 2012
Neutral Citation[2012] NZSC 119
Date07 August 2012
Docket NumberSC 114/2011

[2012] NZSC 119

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 114/2011

James Joseph Kapa
and
The Queen
Counsel:

M A Edgar for Appellant

A Markham and P D Marshall for Respondent

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.

At issue was whether a sentence of reparation could be made for the benefit of persons other than victims.

Held (per majority): Only victims could be the recipients of a sentence of reparation. The key to understanding the purport of s32 SA was its interrelationship with the definition of victim in s4 SA (interpretation) which meant that only victims could be the recipients of a sentence of reparation. Section 32(1) SA permitted reparation in only three circumstances:

(a) “loss of or damage to property” where the person who suffered such loss/damage was a victim in terms of s4(a)(ii) SA;

(b) emotional harm, where the person who suffered emotional harm was a victim in terms of s4 (s32(2)); and

(c) consequential loss or damage.

There were two reasons why only victims could recover for consequential loss or damage. The first was that it would seem unlikely that recovery of consequential loss was intended to be open-ended after reparation for loss of or damage to property and emotional harm had been carefully restricted to victims.

The second reason was that the legislative history of s32(1)(c) SA was consistent with a conclusion that consequential loss was recoverable only by victims. The sentence of reparation provided in the Criminal Justice Act 1985 specifically did not include that for any “loss or damage of a consequential nature”. In response to R v Gill (in which a victim could not recover a settlement amount he had been obliged to pay because of false representations made by the offender because it was of a “consequential nature”), the subsequent SA provided for the recovery of consequential loss.

This conclusion was supported by the presence of s38(1) SA (payment of sums to person who suffered harm, loss, or damage) which necessarily indicated that the drafters did not consider insurers to be entitled to recover under s32(1) SA, notwithstanding that insurers might, in one sense, be said to have been caused loss by the offending. Insurers were not victims, and thus were not intended to be beneficiaries of a s32(1) SA order.

Where the reward was offered and paid, as occurred here, the question could be looked at narrowly or liberally. One approach would be to say that the Commissioner paid the reward and it was irrelevant how he funded it. On that approach, it was obvious K could not be ordered to pay reparation to the Commissioner as neither the Commissioner nor the police generally had ever been treated as victims. They could not recover their costs under the reparation regime. The cost to the Commissioner of paying out on a reward offer was an investigative expense, no different from other investigative costs. If nothing was payable to the Commissioner, his funders obviously could not recover as his insurer or indemnifier.

A more liberal approach would be to ignore the Commissioner's role and to concentrate on the payments made by the individual reward donors. The cost of contributing the reward (which might happen some time after the offending) was not a direct loss of the offence so as to come within s32(1)(a). The offender had not “caused” that loss, as s32(1) required. The offender had merely, by his or her offending, set up the occasion for the making of the reward to happen.. At best, the loss suffered by reward donors was consequential on the loss suffered by others, and only victims could recover consequential loss under s32(1)(c). The only situation in which the cost of a reward might be recoverable would be where the victim had put up money for a reward in the hope of recovering his or her stolen property. That cost might then be a consequential loss of that victim, however, as K had “earned” $100,000 as a result of his offending, it was possible that it could be recovered under the Criminal Proceeds (Recovery) Act 2009.

In the dissenting minority decision, it was found that the composite phrase in s32(1)(a) and s32(1)(b) of “through or by means of an offence of which he or she is convicted” was designed to capture loss or damage that naturally flowed from or was closely associated with the offence in question. As such reward donors were “victims” (though not primary ones) that had suffered a direct loss under s32(1)(a) SA or a consequential loss under s32(1)(c) SA as expenses incurred in the recovery of property, including payment of a reward, naturally flowed from or were closely associated with the loss of the stolen items. In addition it was noted that it would be odd if a reward payment was not considered to be loss caused through or by means of an offence in circumstances where the receipt of a reward was one motivation for the offending in the first place.

Appeal allowed. Sentence of reparation quashed (majority).

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

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  • Norris v R
    • New Zealand
    • Court of Appeal
    • 31 October 2013
    ...(repealed from 1 July 2013 by the Criminal Procedure Act 2011). 50Norris v R [2012] NZHC 2212. 51 Sentencing remarks, above n 2, at [7]. 52Kapa 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 Norris ......
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    ...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......

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