Horopapera v The the Queen - [2022] NZHC 646

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
Appellants

AND

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…

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.

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Details

Case: [2022] NZHC 646
Decision Date: 31 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Horopapera and Others v The Queen was heard. The appellants, Joseph Horopapera, Duane Simon, and Sharn Kelvin Mahuika, were convicted and sentenced by the Rotorua District Court for various charges related to the cultivation of cannabis, possession of equipment, and theft of electricity. Each appellant now appeals against their respective sentences.

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