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R v Taiepa

R v Taiepa

Case [2009] NZCA 120 6 April 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA88/2009
[2009] NZCA 120
THE QUEEN
v
HEMI WHAREPAPA TAIEPA
Hearing:2 April 2009

Court:Robertson, Gendall and Keane JJ
Counsel:A M Simperingham for Appellant

N P Chisnall for Crown

Judgment:6 April 2009 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1] Hemi Taiepa appeals against a sentence of 12 months’ imprisonment with special conditions for six months beyond the sentence, namely:
(a)to be assessed and, if the applicable criteria are met, to attend and complete the departmental rehabilitation programme to the satisfaction of the service provider and the probation officer; and
(b)to attend any other programmes or counselling if directed by the probation officer.

This was imposed after he was convicted on a charge of receiving a Subaru Forrester car.
[2]       He appeals on the basis that the sentence was manifestly excessive and wrong in principle.
[3]       In particular it was argued that he should not have received a full-time custodial sentence and that there was not parity between the sentence imposed upon him and that imposed on others involved in the incident.
[4]       Judge Kiernan, who sentenced Mr Taiepa, had presided at trial. In her sentencing notes she described the factual background thus:
[2]       The evidence that the jury heard was that the Forrester was stolen from outside the home of its owner between Saturday night and early Sunday morning when it was seen up Gaddums Hill with two people. One of those people in fact gave evidence at trial, Mr Tibble, and he was one of the thieves, as was a Mr Bridgeman. Both of them have been dealt with by the Court and I am going to refer to that shortly.
[3]       The evidence the jury heard was that apart from the car being seen early on that Sunday morning, you were seen driving that vehicle in the afternoon of that same day, the Sunday, in town. The jury also heard that the interior of the stolen car had been installed in your car, also a Subaru, by the Friday of the same week. The jury also heard of course that the stolen car was found burnt out, out of town, by the end of the week.
[4]       Your defence at trial was that you were not, first of all, driving the car around town on the Sunday. The interior was indeed installed in your car but you had bought the seats and door panels from someone who you were not able to identify or name, who had come around to your place with those items in a van. Other evidence was called from your partner, and indeed from a young relative, which supported that.
[5]       The jury, by its verdict, must have been satisfied beyond reasonable doubt that you did receive the Forrester knowing it was stolen, or being reckless as to whether it had been. Given the small time-gap between the theft of the vehicle,…

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 R v Taiepa

Details

AGLC: R v Taiepa [2009] NZCA 120
Case: [2009] NZCA 120
Decision Date: 6 April 2009

CaseChat Overview and Summary

In the case of R v Taiepa, Hemi Taiepa appealed against his sentence of 12 months' imprisonment with special conditions for six months beyond the sentence. The sentence was imposed after he was convicted on a charge of receiving a stolen Subaru Forrester car. The Court of Appeal dismissed Taiepa's appeal, holding that the sentence was not manifestly excessive or wrong in principle.

The legal issues before the court were whether the sentence was excessive and whether there was unjustified disparity in sentencing. Taiepa argued that he should not have received a full-time custodial sentence and that there was not parity between the sentence imposed upon him and that imposed on others involved in the incident. The court found that the sentence was within the available range and that there was no basis for concluding that the Judge's assessment was in any way wrong in principle.

The court held that the Judge was entitled to be sceptical as to the possibility of Taiepa responding positively to a rehabilitative approach, given his history of offending. The court also found that there was no substantial difference in culpability between the thief and the receiver, and that an objective observer would not think something had gone awry with the system because of the difference of approach. The appeal was accordingly dismissed.

Orders