Kalepo v Police [2013] NZHC 322 (26 February 2013)

Last Updated: 6 March 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000408 [2013] NZHC 322

EPIROSA SOLIA KALEPO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 22 February 2013

Appearances: Appellant in Person

K Lummis for the Respondent

Judgment: 26 February 2013

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Tuesday, 26 February 2013 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

_{Registrar/Deputy Registrar}

Solicitors:

_{Crown Solicitor, Auckland.}

KALEPO V POLICE HC AK CRI-2012-404-000408 [26 February 2013]

Introduction

[1] Epirosa Kalepo appeals against a sentence of 200 hours community work imposed in the Manukau District Court on 16 October 2012 on the basis that the sentence is inappropriate in terms of s 121(3)(b) Summary Proceedings Act 1957 because she is a permanent resident of Australia. After being sentenced to 200 hours community work, Ms Kalepo returned to Australia and there signed the notice of general appeal in front a Justice of Peace in Parramatta, Sydney before filing it in the High Court. She has no counsel acting for her and flew back from Australia yesterday using funds advanced by her grandmother to appear in support of her appeal.

Background

[2] Over seven years ago, on 30 September 2005, Ms Kalepo entered guilty pleas to six relatively minor charges – breach of bail, possession of cannabis, possession of a pipe and three charges of shoplifting from Farmers, DFS Galleria and Countdown. She was convicted and remanded to 22 November 2005 for a reparation and pre- sentence report. On that date she was further remanded to 22 December 2005. However, the day before Ms Kalepo was due to appear next, the matter was brought on and further adjourned “Due to error in over booking”. Ms Kalepo was further remanded for sentencing on 28 February 2006. It is not apparent whether Ms Kalepo appeared on 21 December 2005, when the matter was brought on early. In any event, she did not appear for sentencing on 28 February 2006 and a warrant to arrest was issued.

[3] The Police laid one further information against Ms Kalepo on 3 November

2005. This related to another charge of shoplifting from Kmart on 19 October 2005. The information was never served on Ms Kalepo and a warrant to arrest was issued at the request of the prosecution on 5 May 2006.

[4] Approximately seven years later, on 12 October 2012, Ms Kalepo was arrested on warrant apparently when she returned to New Zealand. She appeared in the Manukau District Court on 12 October 2012 and pleaded guilty to the charge of

shoplifting on 19 October 2005. Ms Kalepo was then remanded on bail until

16 October 2012 for sentence on that charge and the six charges to which she had pleaded guilty in September 2005.

[5] On 16 October 2012, Ms Kalepo again appeared in the Manukau District

Court. The notes of Judge M E Perkins on sentencing reads as follows:

Ms Kalepo, your record and this current offending shows that you are a thoroughly dishonest person and a thief. You say you are wanting to go to Australia. I will be very surprised if the Australian authorities allow you to go into Australia with your record and particularly this offending.

As I suspected you have got outstanding fines that you have never dealt with, $6199.22.

In order to deal with this matter today by way of sentencing, and I have read the series of caption summaries that have been presented, I am prepared to remit some of these fines but otherwise you are going to be sentenced to community work.

So in respect of the outstanding fines they are remitted down to $3000. You are to enter into an arrangement to pay that by instalments with the Collections Department.

In respect of that remission and the current offending you are convicted on all matters and you are sentenced to serve 200 hours of community work.

Appellant’s account

[6] Ms Kalepo explains that she saw a duty solicitor at Court prior to the sentencing hearing. The duty solicitor asked her what charges she was facing and Ms Kalepo informed him that the charges were for shoplifting, possession of cannabis and a few other minor charges, which dated back a few years when she had been ill. She told the duty solicitor that she needed to have the matter dealt with as soon as possible as she was due to return home to Sydney in four days time to her children and work commitments. She informed the duty solicitor that she had been a permanent resident of Australia for the last six years where she was raising four children as a solo mother and working as a casual packer at Woolworths.

[7] During the time that she was explaining her situation to the duty solicitor, she observed that he had been taking notes and assumed that he understood her circumstances. She informed the duty solicitor that if it was possible it would be

best if she were able to sort out the matter by paying a fine as she did not reside in

New Zealand.

[8] On entering the Court room, Ms Kalepo saw that another female duty solicitor was there to represent her. The female duty solicitor did not mention to the Judge that she had children in Australia and, most importantly, that she resided in Australia and had done so for the last six years with her four children. Ms Kalepo states that she tried to get the attention of the duty solicitor, but was told to remain quiet by the police officer standing next to her. Ms Kalepo feels that with the change of duty solicitors, there had been a communication breakdown resulting in the Judge not being informed of her situation. After the Judge imposed the sentence, Ms Kalepo says she again tried to inform the Judge that she did not reside in New Zealand and would not be able to complete the community service but, again, was instructed to remain quiet and walk to the stairs led by a police officer. After her Court appearance, she said she was held in a waiting cell until she received her documentation, which she signed and was then released. Once she was released she went back to the Court room so she could explain her situation, only to find that the Court was then closed. Ms Kalepo paid the $3,000 fine before she departed New Zealand to return to Australia and her children.

[9] Ms Kalepo advises me that she has indeed been living in Australia since 2006 and presently cares for three children aged 16, 15 and 5, all at school. She is a single parent receiving an Australian Government benefit and living in rented accommodation. She advises me that she is able to pay a fine in instalments of $50 per week. I was impressed that Ms Kalepo had, in fact, filed an notice of appeal from Australia and returned to New Zealand to argue her case rather than just ignore the problem in the hope that it would go away.

Discussion

[10] The experienced District Court Judge did not differentiate or apportion the community work hours between the partial remission of Ms Kalepo’s fines and the minor offences to which she had pleaded guilty. It is not apparent therefore what part of the community work sentence was attributable to the remission of

Ms Kalepo’s fines and what sentence she received for the offences on which she was appearing for sentence.

[11] It is not open to a Judge to remit fines imposed for unrelated offending as part of the exercise of sentencing for a different offence.[1] It is also unclear from his decision, whether or not the Judge in the present case followed the procedure set out in s 88 Summary Proceedings Act 1957 for the remission of fines.

[12] This leads to the obvious conclusion that the appeal must be allowed and the

200 hours community work replaced by one which is appropriate for the offences to which Ms Kalepo pleaded guilty ignoring the remission of fines. There is no basis to interfere with the remission of Ms Kalepo’s fines because of the lack of information available to me about the procedure followed in the District Court and the lack of any submissions from Ms Kalepo or Crown counsel on the issue.

[13] I am of the view that there was an obvious failure on the part of the duty solicitor to properly convey Ms Kalepo’s circumstances to the sentencing judge. This mislead him in to thinking that Ms Kalepo wanted to immigrate to Australia when Ms Kalepo had in fact immigrated to Australia in 2006 and was permanently resident in Sydney, with significant child care responsibilities. In those circumstances, a sentence of community work, at whatever level, was inappropriate. Ms Kalepo is able to pay a fine, albeit by instalments, which is the preferred sentence under s 13 Sentencing Act 2002.

[14] Accordingly, the sentence of 200 hours community work imposed in the Manukau District Court on 16 October 2002 is quashed and replaced with the following sentences:

(a) On each of the four charges of shoplifting, Ms Kalepo is fined $100 with Court costs of $132.69. ($930.76)

(b) On the charge of possession of cannabis, Ms Kalepo is also fined

_{$100 with Court costs of $132.69. ($232.69)}

(c) Ms Kalepo is convicted and discharged on the charges of possession of a pipe and breach of bail.

[15] The total fines and costs to be paid are therefore $1,163.45. If that total cannot be paid in one lump sum, it is to be paid in instalments of $100 per month commencing on 1 April 2013.

...................................

Woolford J

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[1] R v King CA23/01 21 June 2011 at [4], Hemara v Police HC New Plymouth AP17/03, 15

September 2003, Chambers J at [22].