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Hohipa v R

Hohipa v R

Case [2015] NZCA 485 14 October 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/2015
[2015] NZCA 485

BETWEEN	DENNIS MCCALLY HOHIPA Appellant
AND	THE QUEEN Respondent

Hearing:	29 September 2015 (supplementary memorandum received 2 October 2015)
Court:	Winkelmann, Dobson and Gilbert JJ
Counsel:	T Epati for Appellant T A Simmonds for Respondent
Judgment:	14 October 2015 at 11 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of six years’ imprisonment is quashed. The appellant is resentenced to four years two months’ imprisonment in relation to the charge of conspiracy to supply methamphetamine.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

The appellant, Mr Hohipa pleaded guilty to a charge of conspiracy to supply methamphetamine and was sentenced in the Gisborne District Court by Judge Adeane to six years’ imprisonment.[1] He now appeals against that sentence on grounds that:
(1)the starting point of seven and a half years’ imprisonment was too high having regard to the nature of the conspiracy and Mr Hohipa’s role in it;
(2)the Judge erred in concluding that Mr Hohipa’s guilty plea did not come at the first opportunity, therefore giving a 15 per cent discount as opposed to a full 25 per cent discount;
(3)a reduction in sentence of only four months was inadequate recognition of 14 months spent on electronically monitored bail;
(4)in all the circumstances the end sentence of six years’ imprisonment was manifestly excessive.
[1]R v Hohipa [2015] NZDC 8196.
Mr Hohipa was sentenced on the basis of the summary of facts agreed for sentencing purposes for Ms Edwards and him. The summary of facts placed Ms Edwards as a principal offender, and described Mr Hohipa as involved in the offending throughout the period but at a lower level than his co-offender. It said that it was Ms Edwards who had control of the money and the drugs.
At the time of the offending these two were living together. Between 1 September 2012 and 14 October 2013 police undertook a surveillance operation which caught them within its net.
As to the particulars of the offending, on 22 separate occasions Ms Edwards received methamphetamine from Auckland. From July to October 2013, almost all of the trips to Auckland to buy the methamphetamine for on-supply were undertaken by another offender, Mr Paul Campbell. Although Mr Campbell was directly distributing to the Gisborne market the purchases of methamphetamine he made for Ms Edwards enabled him to obtain a better wholesale price.
Mr Hohipa travelled with Ms Edwards, Mr Campbell or another appointed associate on nine occasions when methamphetamine was purchased. There was a tenth unsuccessful trip which resulted in Mr Hohipa being hospitalised with stab wounds. Mr Hohipa can be connected to trips in which under six ounces (five ounces and 24 grams) were obtained, obtaining unknown amounts on three further trips and liaising with Mr Campbell on three occasions in respect of amounts that Mr Campbell obtained for Ms Edwards, including a final amount of two ounces intercepted on termination. Mr Hohipa…

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 Hohipa v R

Details

AGLC: Hohipa v R [2015] NZCA 485
Case: [2015] NZCA 485
Decision Date: 14 October 2015 at 11 am

CaseChat Overview and Summary

The appellant, Dennis McCally Hohipa, appealed against his sentence for conspiracy to supply methamphetamine. He was sentenced to six years’ imprisonment by the Gisborne District Court. The grounds of appeal included that the starting point of seven and a half years was too high, the judge erred in giving a 15 per cent discount for his guilty plea, the discount for the time spent on electronically monitored bail was inadequate, and the sentence was manifestly excessive. The Crown Law Office represented the respondent in the appeal. The Court of Appeal accepted the first, second and third grounds of appeal. The starting point of seven and a half years was too high because the appellant was not a principal offender but a foot soldier. The 15 per cent discount for the guilty plea was too low because the appellant pleaded guilty as soon as the amended summary of facts reflected his involvement. The four-month discount for the time spent on electronically monitored bail was inadequate because the appellant was subject to a 24-hour curfew for 14 months. The final sentence of six years was manifestly excessive because it should have been reduced to four years two months.

The appeal against sentence was allowed. The sentence of six years’ imprisonment was quashed and the appellant was resentenced to four years two months’ imprisonment in relation to the charge of conspiracy to supply methamphetamine.

Orders