Hopkins v The Queen - [2012] NZCA 422

IN THE COURT OF APPEAL OF NEW ZEALAND

CA160/2012
[2012] NZCA 422

BETWEEN GRAHAM PHILLIP HOPKINS
Appellant

AND THE QUEEN
Respondent

Hearing: 10 September 2012

Court: Harrison, Simon France and Asher JJ

Counsel: B J Hunt for Appellant
K E Salmond for Respondent

Judgment: 17 September 2012 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

On 31 December 2010 the Police executed a search warrant at the home of the appellant, Graham Phillip Hopkins. They searched Mr Hopkins personally and found on him four small snaplock bags each containing 0.1 grams of methamphetamine. They located in the kitchen a sunglasses case containing a set of electronic scales, numerous unused snaplock bags and a glass pipe used for smoking methamphetamine. Next to the sunglasses case there was $1,300 cash. There were also surveillance cameras operating positioned to view the side and front entrances. Three cellphones were found. A further glass pipe for smoking methamphetamine was located in the garage.
Mr Hopkins’ cellphones were checked and an analysis of the text data obtained from Vodafone over the month prior to his arrest showed numerous instances of the sale and supply of methamphetamine to numerous persons.
The Police located in his living room a laptop computer that had been stolen in August 2010 worth $1,500. They also found a stolen Apple iPhone worth $1,129.
When spoken to by the Police Mr Hopkins denied the sale of methamphetamine and stated that the utensils were for his personal use. He claimed that he had purchased the laptop computer and was unaware that it had been stolen. He initially pleaded not guilty but upon arraignment following committal changed his plea to guilty. He was convicted on one count of supplying methamphetamine and two counts of receiving the computer and iPhone.
On 22 March 2012 Judge Tompkins sentenced Mr Hopkins to two years and five months’ imprisonment on the charge of supplying methamphetamine.[1] Concurrent sentences of four months’ imprisonment were imposed on each of the receiving charges.
[1] R v Hopkins DC Hamilton CRI-2010-019-10768, 22 March 2012.
Mr Hopkins appeals those sentences. Ms Hunt argues on his behalf that the end sentence is manifestly excessive. She submitted that the Judge made a mistake in imposing concurrent sentences on the receiving charges while at the same time uplifting the overall sentence by three months to take into account those charges. She also argues that there was a failure to take into account his remorse and rehabilitation. Ms Hunt’s submissions were aimed at persuading us that a sentence of two years’ imprisonment or less was appropriate, and that the correct end sentence was home detention.

The decision

Judge Tompkins noted that part of the sentencing process had been taken up by counsel for Mr Hopkins suggesting that Mr Hopkins might co-operate with the Police and provide helpful information, which could be relevant on sentencing. Ultimately Mr Hopkins did not provide any helpful information and no credit…

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 Hopkins v The Queen

Details

AGLC: Hopkins v The Queen [2012] NZCA 422
Case: [2012] NZCA 422
Decision Date: 17 September 2012

CaseChat Overview and Summary

The case of Hopkins v The Queen involved Graham Phillip Hopkins, who was convicted on one count of supplying methamphetamine and two counts of receiving stolen property. Hopkins was sentenced to two years and five months’ imprisonment for the methamphetamine charge and concurrent sentences of four months’ imprisonment for each of the receiving charges. Hopkins appealed his sentence, arguing that it was manifestly excessive and that the judge had erred in imposing concurrent sentences while also uplifting the overall sentence to account for the receiving charges. Additionally, Hopkins’ counsel argued that the judge had failed to consider his client's remorse and potential for rehabilitation.

The legal issues before the court were whether the starting point for sentencing was correctly determined, whether the uplift for the receiving charges was appropriate, and whether the judge had adequately considered remorse and rehabilitation in the sentencing process. The court had to determine if the sentence imposed was within the appropriate range and whether there were any errors in the sentencing process.

The court found that the judge had correctly set a starting point of two and a half years for the methamphetamine charge, which was at the lower end of the appropriate range. The court also found that the uplift of three months to account for the receiving charges was appropriate, and that the concurrent sentences for the receiving charges were correctly imposed. The court concluded that there was insufficient evidence of remorse to warrant a separate discount, and that the discount for the guilty plea was appropriate. The court found no errors in the sentencing process and upheld the sentence imposed by the lower court.

The appeal was dismissed, and the sentence of two years and five months’ imprisonment for the methamphetamine charge, with concurrent terms of four months each for the receiving charges, was upheld.

Orders