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The Queen v Rapana [2006] NZCA 96 (22 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/06

THE QUEEN

v

SHANE PITA RAPANA

Hearing: 16 May 2006

Court: O'Regan, Panckhurst and Potter JJ

Counsel: Appellant in person
S B Edwards for Crown

Judgment: 22 May 2006

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal against sentence is dismissed.

REASONS

(Given by Potter J)

Introduction

[1] Shane Pita Rapana appeals against a total effective sentence of three years imprisonment imposed by Judge T M Abbott in the District Court at Christchurch on 30 September 2005 following guilty pleas entered by Mr Rapana to charges of unlawfully possessing a firearm, unlawfully possessing explosives, driving while disqualified and attempting to pervert the course of justice.
[2] Mr Rapana seeks an extension of time for the filing of the appeal, which is not opposed by the Crown. Mr Rapana claims to have experienced difficulties with the mailing facilities at the prison and in receiving the appropriate forms from the Christchurch District Court.

Background facts

[3] The Summary of Facts on the basis of which the appellant entered guilty pleas, records the following events.
[4] At about 11 p.m. on Saturday 28 February 2004 Mr Rapana was the sole occupant of a motor vehicle when stopped by the Police on Moorhouse Avenue, Christchurch. The drink driving test procedure was commenced and the appellant subsequently accompanied Police to the Police Station to complete the testing procedure.
[5] He gave a false name to the Police when he was stopped and again en route to the Police Station. The name, address and occupation given to the Police were those of his elder brother, Mark Peter Rapana. His true identity and the fact that he was a disqualified driver were discovered on subsequent inquiry by the Police.
[6] While he was parked at the roadside after being stopped by the Police, the appellant was observed to reach down and to be fiddling with something between the two front seats. When access was gained to the vehicle there was located behind the driver’s seat inside a nylon type carry bag, a black cut-down .22 rifle with pistol grip.
[7] The firearm was found to contain a chambered live round of modified .22 calibre ammunition and a second .22 calibre live round was discovered inside the attached magazine.
[8] Subsequent inquiries revealed that the appellant was not the holder of a current firearms licence. When spoken to by the Police he offered no explanation for having a firearm and ammunition in his possession.

Guilty pleas

[9] The appellant entered pleas of guilty to the two unlawful possession charges, driving while disqualified and attempting to pervert the course of justice on the first day of trial. The trial then continued on charges of aggravated robbery and kidnapping which arose from events at a jeweller’s shop in Christchurch on 23 February 2004. The appellant was discharged under s 347 Crimes Act on those charges at the conclusion of the evidence.
[10] In submissions to this Court Mr Rapana claimed that he had entered guilty pleas in March 2004 to the unlawful possession charges and to driving while disqualified, but that these pleas "had to be renewed" when the trial commenced before Judge Abbott on 12 September 2005. He said that he had therefore not been given credit on sentencing for his early guilty pleas.
[11] The Crown attached to its submissions Informations dated 23 August 2004 which charged the two unlawful possession offences under the Arms Act 1983. They show that the matters were adjourned to 30 August 2004 and then to 25 November 2004 for a depositions date. On 3 February 2005 the appellant was committed for trial, "not having pleaded guilty", as is recorded on the Informations.’
[12] We have had further inquiries made. These have revealed Informations dated 1 and 4 March 2004, i.e. very soon after arrest, charging the appellant with the unlawful possession charges and attempting to pervert the course of justice. Those Informations record that on 15 March 2004, the appellant elected trial. The unlawful possession charges were withdrawn by leave on 23 August 2004, presumably when the Informations of that date were filed. Importantly, none of the Informations records that the appellant entered a guilty plea to any of the charges.

The sentence appealed

[13] Judge Abbott stated that the offending involving a loaded firearm with which the appellant was "out and about" in the community, in particular at night and in vehicles, was serious offending of very real concern to the Courts and the community.
[14] He referred to the judgment of Hansen J in Dewes v Police, HC Christchurch A60/03 12 June 2003, in which a sentence of imprisonment of one year and nine months was upheld on appeal for offending similar to the appellant’s. In Dewes the Judge adopted a starting point of two and a half years which was reduced by nine months for early guilty pleas. As in this case, a cut-down shotgun was found in a vehicle being driven in the central city area at night. The gun was loaded and ready to fire. Hansen J stated that people who ride around in motor vehicles with weapons on board must understand that their conduct will be met by condign i.e. severe, sentences, an observation referred to by Judge Abbott when sentencing the appellant.
[15] The Judge noted that Mr Rapana was aged 38 years and that he had a lengthy record which, although somewhat historical, included offences involving violence and possession of weapons including a conviction for aggravated robbery in 1998 and convictions for possession of offensive weapons in 1991 and 1992.
[16] He recorded that the appellant also appeared on application by Community Probation Service for the cancellation of sentences of community work totalling 340 hours of which 195 hours remained outstanding. The sentences of community work were imposed in March and October 2003 and February 2004 on two charges of driving with an excess blood alcohol level and charges of dangerous driving, driving while disqualified and theft. He noted that under s 68(4) of the Sentencing Act the unserved part of the sentences was required to be reflected in the term of any sentence which he imposed in substitution for them.
[17] The Judge stated that there could be only minimal, if any, credit for the appellant’s guilty pleas to the two most serious charges, which were entered on the first day of the trial.
[18] On the charges of unlawful possession of a pistol and unlawful possession of ammunition, he sentenced the appellant to two years imprisonment to be served concurrently but to be cumulative on the sentence of imprisonment of nine months imposed on the charges of driving while disqualified and attempting to obstruct the course of justice. The Judge imposed a sentence of three months imprisonment cumulative on the sentence of nine months, in substitution for the community based sentences which he cancelled. Thus, the total sentence was three years imprisonment.

Appellant’s submissions

[19] The appellant submitted that the reliance by the sentencing Judge on Dewes v Police was not appropriate because, he claimed, there were no factual similarities. He said he was transporting the firearm in an appropriate gun bag and it was lying on the floor of the back seat, and that he has no gang affiliations. He also referred to a newspaper report (undated) of a sentence of four months imposed by the District Court for a "street shooting".

Discussion

[20] The aspect of gang affiliations was expressly excluded from the Judge’s considerations in Dewes. He stated at [7]:

... I accept there is no evidence here of a gang association referred to in other cases ...

[21] The concern of the Court in Dewes was with the presence of a loaded weapon in a vehicle that was being driven around a central city area, particularly at night. That was the same concern held by Judge Abbott about the circumstances of the appellant’s offending. No particular account was taken of any inference that may have been available, that the appellant was trying to conceal the weapon. The presence of the loaded weapon in the vehicle the appellant was driving, was the Court’s focus, which was entirely appropriate.
[22] It was relevant that Mr Rapana has a lengthy previous record which is an aggravating feature not present in the case of Ms Dewes. The appellant’s previous convictions include convictions for dangerous or reckless driving (4), driving with excess breath/alcohol (10) and resisting/obstructing Police or traffic officers (7) which, as the Crown submitted to this Court, must intensify concerns about the potential danger to members of the public and Police, arising from the appellant’s driving with a loaded firearm in his vehicle. Further, at the time of this offending the appellant was subject to a non-custodial sentence imposed only five days previously, on 23 February 2004.
[23] The appellant also had 20 previous convictions for driving while disqualified, that for which he was sentenced by Judge Abbott being his 21^st such offence. The maximum sentence for driving while disqualified (third or subsequent offence) is two years imprisonment and the maximum penalty for attempting to obstruct the course of justice is seven years imprisonment. The nine months imprisonment imposed for these two offences is certainly not excessive.
[24] The Judge acknowledged that the appellant was entitled to credit for his guilty pleas although it could only be minimal. It is apparent that a discount was factored into the sentence of two years imposed for the two most serious charges. They both carry a maximum sentence of three years. In Dewes the Court took a starting point of two and a half years reduced by nine months for early guilty pleas. Given the similarity of the offending in this case with that of Dewes and taking into account the additional aggravating factors relating to the appellant, the sentence of two years imposed indicates a discount in the vicinity of six months.
[25] It was appropriate that the Judge referred to Dewes by way of comparison. We have no details of the case referred to by the appellant. While the reported sentence would appear to be lenient, a newspaper report does not provide a proper basis for comparison.

Conclusion

[26] The Judge was required to consider the totality of the sentence imposed. He clearly had this principle in mind in imposing a total effective sentence of three years. When the appellant’s overall criminality is considered, the sentence cannot be regarded as disproportionate or manifestly excessive.

Result

[27] The application for extension of time to appeal is granted, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Shane Pita Rapana appeals against a total effective sentence of three years imprisonment imposed by Judge T M Abbott in the District Court at Christchurch on 30 September 2005 following guilty pleas entered by Mr Rapana to charges of unlawfully possessing a firearm, unlawfully possessing explosives, driving while disqualified and attempting to pervert the course of justice.
[2]	Mr Rapana seeks an extension of time for the filing of the appeal, which is not opposed by the Crown. Mr Rapana claims to have experienced difficulties with the mailing facilities at the prison and in receiving the appropriate forms from the Christchurch District Court.

[3]	The Summary of Facts on the basis of which the appellant entered guilty pleas, records the following events.
[4]	At about 11 p.m. on Saturday 28 February 2004 Mr Rapana was the sole occupant of a motor vehicle when stopped by the Police on Moorhouse Avenue, Christchurch. The drink driving test procedure was commenced and the appellant subsequently accompanied Police to the Police Station to complete the testing procedure.
[5]	He gave a false name to the Police when he was stopped and again en route to the Police Station. The name, address and occupation given to the Police were those of his elder brother, Mark Peter Rapana. His true identity and the fact that he was a disqualified driver were discovered on subsequent inquiry by the Police.
[6]	While he was parked at the roadside after being stopped by the Police, the appellant was observed to reach down and to be fiddling with something between the two front seats. When access was gained to the vehicle there was located behind the driver’s seat inside a nylon type carry bag, a black cut-down .22 rifle with pistol grip.
[7]	The firearm was found to contain a chambered live round of modified .22 calibre ammunition and a second .22 calibre live round was discovered inside the attached magazine.
[8]	Subsequent inquiries revealed that the appellant was not the holder of a current firearms licence. When spoken to by the Police he offered no explanation for having a firearm and ammunition in his possession.

[9]	The appellant entered pleas of guilty to the two unlawful possession charges, driving while disqualified and attempting to pervert the course of justice on the first day of trial. The trial then continued on charges of aggravated robbery and kidnapping which arose from events at a jeweller’s shop in Christchurch on 23 February 2004. The appellant was discharged under s 347 Crimes Act on those charges at the conclusion of the evidence.
[10]	In submissions to this Court Mr Rapana claimed that he had entered guilty pleas in March 2004 to the unlawful possession charges and to driving while disqualified, but that these pleas "had to be renewed" when the trial commenced before Judge Abbott on 12 September 2005. He said that he had therefore not been given credit on sentencing for his early guilty pleas.
[11]	The Crown attached to its submissions Informations dated 23 August 2004 which charged the two unlawful possession offences under the Arms Act 1983. They show that the matters were adjourned to 30 August 2004 and then to 25 November 2004 for a depositions date. On 3 February 2005 the appellant was committed for trial, "not having pleaded guilty", as is recorded on the Informations.’
[12]	We have had further inquiries made. These have revealed Informations dated 1 and 4 March 2004, i.e. very soon after arrest, charging the appellant with the unlawful possession charges and attempting to pervert the course of justice. Those Informations record that on 15 March 2004, the appellant elected trial. The unlawful possession charges were withdrawn by leave on 23 August 2004, presumably when the Informations of that date were filed. Importantly, none of the Informations records that the appellant entered a guilty plea to any of the charges.

[13]	Judge Abbott stated that the offending involving a loaded firearm with which the appellant was "out and about" in the community, in particular at night and in vehicles, was serious offending of very real concern to the Courts and the community.
[14]	He referred to the judgment of Hansen J in Dewes v Police, HC Christchurch A60/03 12 June 2003, in which a sentence of imprisonment of one year and nine months was upheld on appeal for offending similar to the appellant’s. In Dewes the Judge adopted a starting point of two and a half years which was reduced by nine months for early guilty pleas. As in this case, a cut-down shotgun was found in a vehicle being driven in the central city area at night. The gun was loaded and ready to fire. Hansen J stated that people who ride around in motor vehicles with weapons on board must understand that their conduct will be met by condign i.e. severe, sentences, an observation referred to by Judge Abbott when sentencing the appellant.
[15]	The Judge noted that Mr Rapana was aged 38 years and that he had a lengthy record which, although somewhat historical, included offences involving violence and possession of weapons including a conviction for aggravated robbery in 1998 and convictions for possession of offensive weapons in 1991 and 1992.
[16]	He recorded that the appellant also appeared on application by Community Probation Service for the cancellation of sentences of community work totalling 340 hours of which 195 hours remained outstanding. The sentences of community work were imposed in March and October 2003 and February 2004 on two charges of driving with an excess blood alcohol level and charges of dangerous driving, driving while disqualified and theft. He noted that under s 68(4) of the Sentencing Act the unserved part of the sentences was required to be reflected in the term of any sentence which he imposed in substitution for them.
[17]	The Judge stated that there could be only minimal, if any, credit for the appellant’s guilty pleas to the two most serious charges, which were entered on the first day of the trial.
[18]	On the charges of unlawful possession of a pistol and unlawful possession of ammunition, he sentenced the appellant to two years imprisonment to be served concurrently but to be cumulative on the sentence of imprisonment of nine months imposed on the charges of driving while disqualified and attempting to obstruct the course of justice. The Judge imposed a sentence of three months imprisonment cumulative on the sentence of nine months, in substitution for the community based sentences which he cancelled. Thus, the total sentence was three years imprisonment.

[21]	The concern of the Court in Dewes was with the presence of a loaded weapon in a vehicle that was being driven around a central city area, particularly at night. That was the same concern held by Judge Abbott about the circumstances of the appellant’s offending. No particular account was taken of any inference that may have been available, that the appellant was trying to conceal the weapon. The presence of the loaded weapon in the vehicle the appellant was driving, was the Court’s focus, which was entirely appropriate.
[22]	It was relevant that Mr Rapana has a lengthy previous record which is an aggravating feature not present in the case of Ms Dewes. The appellant’s previous convictions include convictions for dangerous or reckless driving (4), driving with excess breath/alcohol (10) and resisting/obstructing Police or traffic officers (7) which, as the Crown submitted to this Court, must intensify concerns about the potential danger to members of the public and Police, arising from the appellant’s driving with a loaded firearm in his vehicle. Further, at the time of this offending the appellant was subject to a non-custodial sentence imposed only five days previously, on 23 February 2004.
[23]	The appellant also had 20 previous convictions for driving while disqualified, that for which he was sentenced by Judge Abbott being his 21^st such offence. The maximum sentence for driving while disqualified (third or subsequent offence) is two years imprisonment and the maximum penalty for attempting to obstruct the course of justice is seven years imprisonment. The nine months imprisonment imposed for these two offences is certainly not excessive.
[24]	The Judge acknowledged that the appellant was entitled to credit for his guilty pleas although it could only be minimal. It is apparent that a discount was factored into the sentence of two years imposed for the two most serious charges. They both carry a maximum sentence of three years. In Dewes the Court took a starting point of two and a half years reduced by nine months for early guilty pleas. Given the similarity of the offending in this case with that of Dewes and taking into account the additional aggravating factors relating to the appellant, the sentence of two years imposed indicates a discount in the vicinity of six months.
[25]	It was appropriate that the Judge referred to Dewes by way of comparison. We have no details of the case referred to by the appellant. While the reported sentence would appear to be lenient, a newspaper report does not provide a proper basis for comparison.