Piper v R - [2012] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

CA246/2011
[2012] NZCA 104

BETWEEN MARTIN JOHN PIPER
Appellant

AND THE QUEEN
Respondent

CA247/2011

AND BETWEEN RICHARD JOHN PIPER
Appellant

AND THE QUEEN
Respondent

Hearing: 13 March 2012

Court: Stevens, Chisholm and Heath JJ

Counsel: P J Kaye for Appellants
K Raftery for Respondent

Judgment: 22 March 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

Following a four day trial in the District Court at Manukau, Martin Piper and his son Richard Piper were found guilty by a jury of kidnapping, using a document and robbery. Judge Andrée Wiltens sentenced Martin Piper to three years and six months imprisonment and Richard Piper to two years and six months imprisonment.[1]
[1] R v Piper CRI-2009-092-7595, 1 April 2011.
Although both appellants initially appealed against conviction and sentence, they subsequently abandoned their conviction appeals. The appellants allege that their sentences are manifestly excessive because:
(a)the starting points were too high; and
(b)inadequate weight was given to mitigating factors; and
(c)in the case of Richard Piper, the Judge failed to take into account an offer of amends and his trial counsel (not Mr Kaye) failed to place a letter of apology before the Judge.

The offending

At about 8 am on 23 January 2009 the appellants and two other males[2] drove to a Pakuranga address at which the 18 year old female victim was present. Having entered the dwelling Martin Piper demanded money from her, following which Richard Piper and the other offenders shut the door and “surrounded” the victim. Both Martin and Richard Piper continued to demand money from the victim and, after she had told them that she had no money, they forced her to telephone other people and ask for money.
[2]One of whom, Lex Martin, was sentenced at the same time as the appellants. The other has not been identified.
When these attempts to extort money failed, Martin Piper threatened to cut off the victim’s hair. Then Richard Piper took the victim’s EFTPOS card, which she reluctantly handed over, although she provided a false PIN number.
Richard Piper and one of the co-offenders then went to an ATM machine and attempted to withdraw money from the victim’s account. After attempts to withdraw the money failed Richard Piper called Martin Piper (who was still with the victim) and there were unsuccessful attempts to obtain the correct PIN number from the victim.
Shortly after this Richard Piper and the co-offender returned to the address and the victim was forced to call her bank and obtain her account balance. Richard Piper and the co-offender drove her to the bank where $470, being the account balance, was withdrawn. This money was taken by the offenders and it has not been recovered.
Although there is no precise timing of these events, it is clear that they spanned at least two hours.

The appellants

Martin Piper

At the time of sentencing Martin Piper…

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 Piper v R

Details

AGLC: Piper v R [2012] NZCA 104
Case: [2012] NZCA 104
Decision Date: 22 March 2012

CaseChat Overview and Summary

Martin Piper and Richard Piper appealed against their sentences for kidnapping, using a document and robbery, arguing that the sentences were manifestly excessive. The Court of Appeal found that the starting points for the sentences were within the range available to the Judge and the uplifts applied were justified. The Court also found that insufficient weight was not given to the mitigating factors of rehabilitation and reintegration, but the overall sentences were not manifestly excessive. The Court rejected the argument that the Judge failed to take into account an offer of amends and the failure of trial counsel to present a letter of apology did not materially affect the outcome. The appeals against sentence were dismissed.

The Court of Appeal found that the starting points for the sentences were within the range available to the Judge, and the uplifts applied were justified. The Court found that insufficient weight was not given to the mitigating factors of rehabilitation and reintegration, but the overall sentences were not manifestly excessive. The Court rejected the argument that the Judge failed to take into account an offer of amends and the failure of trial counsel to present a letter of apology did not materially affect the outcome. The appeals against sentence were dismissed.

Orders