Foster v R - [2012] NZCA 575

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/2012
[2012] NZCA 575

BETWEEN REBECCA ROSE FOSTER
Appellant

AND THE QUEEN
Respondent

CA528/2012

AND BETWEEN TAN ROPITINI
Appellant

AND THE QUEEN
Respondent

CA543/2012

AND BETWEEN TAI GORRIE
Appellant

AND THE QUEEN
Respondent

Hearing: 17 October 2012

Court: Arnold, Andrews and Dobson JJ

Counsel: R A Harrison for Appellant Foster
M Starling and K J McCoy for Appellant Ropitini
P J Butler for Appellant Gorrie
F E Cleary for Respondent

Judgment: 7 December 2012 at 10 am

JUDGMENT OF THE COURT

AMr Ropitini’s appeal against sentence (CA528/2012) is allowed. The sentence of 10 years’ imprisonment is quashed and a sentence of nine years’ imprisonment is substituted, comprised as follows:
· On counts 2 and 3, five years’ imprisonment, to be served concurrently.
· On counts 5, 6, 7 and 8, four years’ imprisonment, concurrent within themselves but cumulative on the sentence on counts 2 and 3.
The minimum period of imprisonment of five years’ imprisonment is quashed.

BMr Gorrie’s appeal against sentence (CA543/2012) is allowed. The sentence of five years’ imprisonment is quashed and a sentence of four years’ imprisonment is substituted, comprised as follows:
· On count 2, two years’ imprisonment.
· On count 5, two years’ imprisonment, to be served cumulatively on the sentence on count 2.

CMs Foster’s appeal against sentence (CA472/2012) is allowed. The sentence of two years, six months is quashed and a sentence of two years, one month’s imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)

Introduction

The three appellants, along with two co-offenders, faced a variety of charges relating to offending that occurred in February and May 2011. They entered guilty pleas as follows:
(a)Mr Ropitini: two counts of aggravated robbery, two counts of assault with intent to rob, one count of burglary and one count of threatening to cause grievous bodily harm.
(b)Mr Gorrie: one count of aggravated robbery and one count of assault with intent to rob.
(c)Ms Foster: one count of assault with intent to rob.
MacKenzie J imposed the following sentences:[1]
(a)Mr Ropitini: 10 years’ imprisonment with a minimum period of imprisonment (MPI) of five years.
(b)Mr Gorrie: five years’ imprisonment.
(c)Ms Foster: two years, six months’ imprisonment.
[1] R v Ropitini [2012] NZHC 1927.
The appellants now appeal against the sentences imposed upon them.

Factual background

February offending

There were two separate incidents on 9 February 2011, the victims being Messrs Gordon and Morris. Mr Ropitini met with Mr Gordon on 4 February and discussed the possibility of supplying him with $6,000 worth of cannabis. Mr Gordon then contacted Mr Morris to see whether he would finance the purchase. When Mr Morris said he would, the two of them agreed to travel to Blenheim to complete the deal. In fact, however, Mr Ropitini did not intend to supply them with cannabis – he simply intended to rob them of the $6,000. Mr Ropitini instructed Mr Gorrie, Ms Foster and another co-offender, Mr Marzola, to carry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foster v R

Details

AGLC: Foster v R [2012] NZCA 575
Case: [2012] NZCA 575
Decision Date: 7 December 2012

CaseChat Overview and Summary

The appellants, Ropitini, Gorrie, and Foster, challenged the sentences imposed by MacKenzie J in the High Court at Wellington. Each appellant had pleaded guilty to a range of charges including aggravated robbery, assault with intent to rob, burglary, and threatening to cause grievous bodily harm. The trial judge had imposed sentences of 10 years’ imprisonment for Ropitini, five years for Gorrie, and two years, six months for Foster. The Court of Appeal considered the appellants’ claims that the sentences imposed were excessive, that the trial judge had misapplied the principle of totality, and that the imposition of a minimum period of imprisonment was unwarranted.

The Court of Appeal found that the starting point for Ropitini's sentence was at the upper limit of the appropriate range, but that the trial judge had erred in his application of the principle of totality and in the uplift he applied for Ropitini’s criminal record. The Court substituted a sentence of nine years’ imprisonment for Ropitini, with no minimum period of imprisonment. For Gorrie, the Court found that the trial judge had overlooked that he was involved only in the first of the February incidents. The Court substituted a sentence of four years’ imprisonment for Gorrie. For Foster, the Court found that the starting point adopted by the trial judge was too high and that she should have received greater credit for her guilty plea. The Court substituted a sentence of two years, one month’s imprisonment for Foster.

The Court of Appeal allowed all three appeals against sentence and substituted sentences of nine years for Ropitini, four years for Gorrie, and two years, one month for Foster.

Orders