Hape v Police - [2016] NZHC 855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000070 [2016] NZHC 855

BETWEEN
DARRYL HAPE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 May 2016

Appearances:

L S Fulton for Appellant
C D Piho and D B Stevens for Respondent

Judgment:

2 May 2016

ORAL JUDGMENT OF PALMER J

Solicitors / Counsel:
L S Fulton, Barrister, Auckland
Kayes Fletcher Walker, Auckland

HAPE v NEW ZEALAND POLICE [2016] NZHC 855 [2 May 2016]

Facts

[1] On 12 February 2015, the Police executed a search warrant at the residence of Mr Darryl Hape and found 67 cannabis tinnies weighing 36 grams, as well as
$140.

[2] Mr Hape aged 32, admitted that he had sold tinnies to friends and family for money. He pleaded guilty to six charges. This included one charge each of:

(a) possession of cannabis, a class C controlled drug, with a maximum

penalty of eight years’ imprisonment;

(b) the sale of cannabis with the same maximum penalty; and

(c) breach of community work with a maximum penalty of three months’

imprisonment or a $1,000 fine.

[3] I note in respect of the last offence that the Crown will file and serve a memorandum as to whether this was, or was not, the same offence for which sentence was given on 22 July 2014.

[4] Mr Hape also pleaded guilty to three charges of failure to answer District Court bail, each carrying a maximum penalty of one year imprisonment or a $2,000 fine.

[5] On 3 March 2016, Judge Thomas sentenced Mr Hape to 18 months’ imprisonment for each of the cannabis charges. The Judge adopted a starting point of two years, in accordance with the lowest end of the scale prescribed by the Court of Appeal in R v Terewi for the sale of cannabis.1 He discounted that by the full 25 per cent for a guilty plea. He did not apply any other discounts. He did not order home detention. Judge Thomas imposed sentences of two months’ imprisonment for
each of the other charges and he ordered that the sentences be served concurrently.

1 R v Terewi [1999] 3 NZLR 62.

Arguments

[6] Mr Hape appeals against the sentence. He accepts that two years was the appropriate starting point. His counsel submits on his behalf that the sentence should have been home detention rather than imprisonment, and that the sentencing should have been adjourned to allow assessment of a suitable pre-sentence report. That, it is said, would be consistent with the requirement of s 8(e) of the Sentencing Act 2002 to take into account the desirability of consistency in sentencing,
particularly with five cases which are cited.2 It would also, it is said, be consistent

with the requirement of s 8(f) of that Act to impose the least restrictive outcome appropriate in the circumstances. It would also be consistent, it is said, with the requirement on the court under s 16(2) of the Sentencing Act not to impose imprisonment as a sentence unless the court…

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.

Keep reading for free

Create a free CaseChat account to read Hape v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 855
Decision Date: 2 May 2016

CaseChat Overview and Summary

Darryl Hape was convicted of possessing and selling cannabis and of breaching bail. He appealed against the 18-month imprisonment sentence for each of the cannabis charges. Hape's counsel argued that home detention would be a more appropriate sentence, particularly in light of Hape's prior compliance with a home detention order. The Crown argued that Judge Thomas did not make any error in sentencing Hape to imprisonment. The Court needed to decide whether it was open to Judge Thomas to decide that home detention was not appropriate given Hape's history of breaching court orders.

The Court found that the five cases cited by Hape's counsel were distinguishable from Hape's case. Three of them were line calls where special circumstances tipped the balance in favour of home detention. Two of them involved offenders responsible for the care of children. None of them involved a history of ignoring court orders. The Court also noted that there was no requirement on the court to call for a pre-sentence report on home detention when the court had concluded that home detention was not appropriate. The Court was not satisfied that there was an error in Judge Thomas' sentence. The appeal was declined.

No orders were made by the Court.

Orders