IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-12 CRI-2022-463-11 CRI-2022-463-21
[2022] NZHC 646
BETWEEN JOSEPH HOROPAPERA and DUANE SIMON and SHARN KELVIN MAHUIKA
AppellantsAND
THE QUEEN
Respondent
Hearing: 23 March 2022 Appearances:
S Mills for Appellant, J Horopapera M Dorset for Appellant, D Simon
J Munro for Appellant, S J Mahuika
Judgment:
31 March 2022
JUDGMENT OF GORDON J
This judgment is delivered by me on 31 March 2022 at 4 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors: Lance Lawson Limited, Rotorua
Tucker & Co, Auckland Crown Solicitor, Rotorua
Counsel: M Dorset
J Munro, Barrister, Auckland
HOROPAPERA and ORS v R [2022] NZHC 646
Introduction
[1] The appellants, Joseph Horopapera, Duane Simon and Sharn Mahuika were sentenced by Judge G C Hollister-Jones in the Rotorua District Court on 3 February 2022 (Mr Simon and Mr Horopapera) and on 18 February 2022 (Mr Mahuika). All three appellants had previously sought a sentence indication. Mr Horopapera and Mr Mahuika accepted their sentence indications and pleaded guilty to the charges on which they were sentenced. Mr Simon did not accept his sentence indication but nevertheless pleaded guilty to the charges. Each now appeals his sentence.
[2]Mr Horopapera was convicted of:
(a)Cultivating cannabis (x 3);1
(b)Attempting to cultivate cannabis;2
(c)Possession of equipment to cultivate cannabis (x 3);3 and
(d)Theft of electricity (x 3).4
[3]Mr Simon was convicted of:
(a)Cultivating cannabis (x 5);5
(b)Attempting to cultivate cannabis;6
(c)Theft of electricity (x 5);7 and
1 Misuse of Drugs Act 1975, s 9. Maximum penalty: seven years’ imprisonment.
2 Misuse of Drugs Act, s 9 and Crimes Act 1961, s 311(1). Maximum penalty (s 9(2)): seven years’ imprisonment. Maximum penalty (s 311(1)): three years and six months’ imprisonment.
3 Misuse of Drugs Act, s 12A(2). Maximum penalty: five years’ imprisonment.
4 Crimes Act, ss 219 and 223(b). Maximum penalty: seven years’ imprisonment for two of the charges (theft over $1,000); and ss 219 and 223(d). Maximum penalty: three months’ imprisonment for one of the charges (theft under $500).
5 Misuse of Drugs Act, s 9. Maximum penalty: seven years’ imprisonment.
6 Misuse of Drugs Act, s 9(1) and Crimes Act, s 311(1). Maximum penalty: three years’ and six months’ imprisonment.
7 Crimes Act, ss 219 and 223(b). Maximum penalty: seven years’ imprisonment for four of the charges (theft over $1,000); and ss 219 and 223(d). Maximum penalty: three months’ imprisonment for one of the charges (theft under $500).
(d)Conspiring to deal with cannabis.8
Mr Mahuika was convicted of:
(a)Cultivating cannabis (x 4);9
(b)Possession of cannabis for sale (x 4);10 and
(c)Sale of cannabis (x 2).11
[5] All the charges arise out of the same Police investigation. To that extent, the appeals are connected, but they were not consolidated. I set out the background in general terms with a summary for each appellant below. I will then consider each appeal in turn.
Factual background
[6] The Police…
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- Case
- [2022] NZHC 646
- Decision Date
CaseChat Overview and Summary
The legal issues for the court to decide included whether the starting points for the sentences were appropriate, if there was double counting in the sentences, if the discounts for mitigating factors were sufficient, and if the final sentences were manifestly excessive.
The court found that for Mr Horopapera, the starting point and the discounts were appropriate, and the appeal was dismissed. For Mr Simon, the starting point was too high, and the discounts for remorse and rehabilitation were insufficient, leading to the allowance of the appeal and a reduction of his sentence to two years and nine months. For Mr Mahuika, the discounts for good character and remorse were deemed appropriate, and the appeal was dismissed, maintaining his sentence of two years and eight months.
The final orders were that Mr Simon's appeal was allowed, with his sentences reduced, while the appeals for Mr Horopapera and Mr Mahuika were dismissed, and their sentences upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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