Katipa v R [2014] NZCA 437 (4 September 2014)

Last Updated: 12 September 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA635/2013 [2014] NZCA 437
BETWEEN	JAYSON KATIPA Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2014
Court:	Miller, MacKenzie and Andrews JJ
Counsel:	R Vigor-Brown for Appellant J E Mildenhall for Respondent
Judgment:	4 September 2014 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Miller J)

[1] Mr Katipa was sentenced by Judge Ian Thomas on 23 August 2013 to concurrent terms of 16 months imprisonment on five charges of receiving hot water cylinders.^[1] He appeals against sentence on the basis that he had been in custody since 2 November 2012 and the Judge intended to sentence him to time served, but miscalculated.
[2] The error arose, Mr Katipa says, because of the way in which pre-sentence detention is calculated when determining the sentence release date.
[3] Five residential burglaries were committed in Tokoroa on or about 1 November 2012. Mr Katipa and his co-offenders were caught in the early hours of that morning. They were dismantling three hot water cylinders taken in the burglaries. Mr Katipa was arrested on 2 November and charged with one burglary and receiving a stolen water blaster and some growing lights. He was remanded in custody and subsequently charged with the other burglaries.
[4] Police evidently knew at around the time of arrest that Mr Katipa had earlier cashed in two stolen hot water cylinders at a scrap metal dealer on 23 and 29 October. These incidents were mentioned in opposition to bail and in a summary of facts that must have been prepared not long after arrest. He was not charged with receiving the two cylinders, however, until an indictment was filed on 20 March 2013.
[5] An amended indictment was filed on 9 July 2013. It contained five receiving charges, three of which related to the burglaries that had resulted in Mr Katipa’s arrest on 1 November. The burglary charges were dropped. Mr Katipa pleaded guilty to the five receiving charges the following day.
[6] There can be no doubt that when fixing the sentence of 16 months imprisonment Judge Ian Thomas understood that he was effectively sentencing Mr Katipa to time served. Nor is there any doubt that Mr Katipa was entitled to credit for detention since arrest with respect to the three receiving charges arising out of the 1 November burglaries; those charges were sufficiently related to the burglaries.
[7] Under s 91(1) of the Parole Act 2002 pre-sentence detention is defined as any period of detention before sentence that relates to:

91 Meaning of pre-sentence

(1) Pre-sentence detention is detention of a type described in subsection (2) that occurs at any stage during the proceedings leading to the conviction or pending sentence of the person, whether that period (or any part of it) relates to—

(a) any charge on which the person was eventually convicted; or

(b) any other charge on which the person was originally arrested; or

(c) any charge that the person faced at any time between his or her arrest and before conviction.

Under s 90, pre-sentence detention must be calculated by reference to each individual charge.

[8] So far as the two charges laid on 20 March were concerned, the Department of Corrections calculated the amount of pre-sentence detention as the period between 20 March and sentencing on 23 August; that is, five months and four days. It is that period of pre-sentence detention that determined Mr Katipa’s release date of 19 November 2013.
[9] As it happens, the appeal having been filed Corrections recalculated the sentence release date, giving Mr Katipa the benefit of any doubt by accepting that the two receiving charges were related to the original burglary arrest. He was eventually released a few days early, on 8 November 2013. He maintains his appeal, the sole ground of which is that the sentence release date was wrongly calculated. Although the Judge meant to sentence him to time served since arrest, he does not challenge the sentence.
[10] The Crown responds that we are without jurisdiction, for this does not qualify as a sentence appeal.^[2] Parole eligibility is an irrelevant consideration on sentencing, and a sentence appeal is not the occasion to resolve a dispute about the sentence release date. In any event, the two charges in issue were not related to the original burglary charge that led to Mr Katipa being held in custody.
[11] There being no complaint about the sentence, we agree that there is no basis for interfering with it. The appellate question is whether the sentence was manifestly excessive. Plainly it was not, given the spate of offending and associated number of charges, their close connection to the burglaries, and Mr Katipa’s extensive history. Pre-sentence detention may not be taken into account when fixing a sentence of imprisonment.^[3] For these reasons this is not the proper occasion to review the sentence release date. We decline to do so.
[12] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Katipa DC Rotorua CRI-2012-063-4191, 23 August 2013.

^[2] Te Aho v R [2013] NZCA 47.

^[3] Sentencing Act 2002, s 82.