Rahipere v Police

[2020] NZHC 2902

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-463-122

[2020] NZHC 2902

BETWEEN

HOLLEY FAITH RAHIPERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 November 2020
Appearances:	T Simmonds and O Cann for Appellant D McWilliam for Respondent
Judgment:	6 November 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 6 November 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Solicitor, Tauranga

RAHIPERE v NEW ZEALAND POLICE [2020] NZHC 2902 [6 November 2020]

[1]    On 24 July 2020 Ms Rahipere appeared before Judge T R Ingram in the District Court at Whakatāne for sentence on two sets of drug-related charges. The Judge sentenced her to an effective term of three years imprisonment.1

[2]    Ms Rahipere appeals against sentence. She contends the Judge erred in several respects in structuring the sentence and this has resulted in an end sentence that is manifestly excessive.

The charges

The first set of charges

[3]    The first set of charges comprised charges of being in possession of cannabis for supply, possession of a pipe, supplying methamphetamine, supplying cannabis, possession of methamphetamine and dishonestly obtaining a credit card. On 4 March 2020 the Judge had sentenced Ms Rahipere to nine months home detention on these charges.2

[4]    The Judge had arrived at that sentence by adopting a starting point of 24 months imprisonment and applying a reduction of six months, or 25 per cent, to reach an end sentence of 18 months imprisonment. He then converted the sentence to one of 9 months home detention.

[5]    The Department of Corrections applied for her to be re-sentenced on these charges because of the events giving rise to the second set of charges.

The second set of charges

[6]    On the morning of 18 April 2020 the police executed a search warrant at the address where Ms Rahipere was serving the sentence of home detention. There they found quantities of cash inside plastic zip lock bags. Inside one of the bags of cash were numerous empty “point bags”. The police also found approximately one gram of methamphetamine in a small plastic container together with four small snaplock

1      New Zealand Police v Rahipere [2020] NZDC 14679.

2      New Zealand Police v Rahipere [2020] NZDC 3721.

bags, each of which contained approximately .25 of a gram of methamphetamine. The police also found a set of working digital scales and two “tick books” setting out details of names and dollar amounts owing. The police analysed Ms Rahipere’s cellphone and found several messages indicating she was selling methamphetamine.

[7]    The police also found a broken glass methamphetamine pipe in Ms Rahipere’s bedroom. The base of this was stained, indicating it had been used to consume methamphetamine. In addition, the police found two stolen Apple iPads on Ms Rahipere’s bed.

The sentence

[8]    The Judge observed that he had converted the end sentence of 18 months imprisonment on the first set of charges to one of nine months home detention. He cancelled the sentence of home detention and reduced the end sentence on the first set of charges by three months to reflect the fact that Ms Rahipere had served approximately six weeks of the earlier sentence. This left an end sentence of 15 months imprisonment on the first set of charges.

[9]    The Judge’s calculation of the sentence to be imposed on the second set of charges is contained in the following paragraph of his decision:3

[7]   When I take the mix of matters that I am dealing with it seems to me that a reasonably substantial uplift is required, even after giving you credit for your guilty plea and applying the Zhang factors as best I can it seems to me that the breach of home detention and the nature of that breach, namely dealing class A drugs while serving a sentence of home detention requires a significant uplift. It would be easy indeed simply to say it is offending at about the same level as the previous offending for the drugs, that would produce pretty much the same result, namely an 18 month assessment after credit for guilty plea and then I would need to account for the other types of offending and at y0ur age and stage in life and with your history I am prepared to simply set the receiving charge to one side and not impose any significant uplift in relation to that, but in relation to the breach of home detention in the way that I have mentioned I consider that an uplift in the order of nine months would be appropriate. I would be prepared to give you three months’ credit for your plea in the circumstances and that would result therefore in an overall sentence of 21 months on top of the 15 months already imposed.

(Emphasis added)

3      New Zealand Police v Rahipere, above n 1.

[10]   It is difficult to determine from this paragraph how the Judge constructed the sentence. As I read the italicised portion of his remarks he took a starting point of 24 months imprisonment as he had done in relation to the first set of charges. He then applied a deduction of six months, or 25 per cent, to reflect the guilty pleas. This reduced the sentence to 18 months imprisonment. He then observed that an uplift of nine months would ordinarily have been appropriate to reflect the fact that the offending had occurred whilst Ms Rahipere was serving a sentence of home detention imposed for similar offending. This would have increased the sentence to 27 months imprisonment. It is evident, however, that the Judge reduced the uplift by three months to reflect Ms Rahipere’s guilty pleas. If this interpretation is correct the end sentence ought to have been 24 months imprisonment. I am unable to determine how he arrived at an end sentence of 21 months imprisonment, but that is obviously in Ms Rahipere’s favour.

[11]   The Judge did not consider any reduction was warranted to reflect totality principles. He therefore imposed an end sentence of 21 months imprisonment on the second set of charges and directed that this was to be served cumulatively on the earlier sentence of 15 months imprisonment imposed on the first set of charges. This produced the effective end sentence of three years imprisonment.

Argument on appeal

[12]   Mr Simmonds contends the Judge erred in several respects in fixing the sentence to be imposed on the second set of charges, First, he contends the Judge gave Ms Rahipere insufficient credit for her early guilty pleas. He also says the Judge failed to have regard to relevant mitigating factors, including Ms Rahipere’s drug addiction, cultural considerations and compelling family circumstances. Finally, he contends the Judge ought to have reduced the sentence to reflect totality principles.

[13]   Mr Simmonds submits these factors mean the Judge ought to have imposed an effective end sentence of no more than 23 months imprisonment on both sets of charges.

Decision

Credit for guilty pleas

[14]   Ms Rahipere entered her guilty pleas on the second set of charges on 24 July 2020. This was approximately three months after the charges were laid. Ms Rahipere initially entered not guilty pleas to the charges and they were called before the Court on several occasions before pleas were entered.

[15]   Mr Simmonds argues that the only credit the Judge gave for guilty pleas was the reduction of three months from the uplift to be applied for offending whilst serving the sentence of home detention. If correct, this means he applied a discount in the order of approximately 12.5 per cent. On my interpretation of the Judge’s remarks this submission is not correct. The Judge applied a discount of six months, or 25 per cent, to reduce the starting point from 24 months to 18 months imprisonment. He then recognised the guilty pleas again when he reduced the uplift to reflect the fact that the offending occurred whilst Ms Rahipere was serving the sentence of home detention. This ground of appeal fails as a result.

Other mitigating factors

[16]   The Judge accepted that Ms Rahipere committed the offences in order to feed her addiction but considered this should not result in any reduction of the sentence because the offending occurred whilst she was serving a sentence of home detention. Mr Simmonds points out that in Zhang v R the Court of Appeal expressly held that low level offending committed to feed an addiction may result in a lower starting point or may be regarded as a mitigating factor.4 He says the Judge ought to have applied a further discount to reflect this factor.

[17]   The Judge took the issue of Ms Rahipere’s addiction into account to some extent in setting the starting point, but with a starting point of 24 months imprisonment the level of any discount was relatively small. Furthermore, the fact that the offending occurred whilst Ms Rahipere was serving a sentence of home detention was already reflected in the uplift of six months that the Judge applied to the starting point. I do

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137].

not consider it should have been taken into account again to deny Ms Rahipere the benefit of a mitigating factor that was otherwise available to her. I therefore accept that Mr Simmonds’ submission that some further discount ought to have been applied to reflect this mitigating factor.

[18]   In addition, Mr Simmonds submits that at 30 years of age Ms Rahipere is now motivated to address her addiction. Her husband is currently incarcerated, and her five older children are in the care of other family members but she remains in regular contact with them. She gave birth to a sixth child in prison shortly after being sentenced on the present charges. In addition, Ms Rahipere suffers from depression. Her addiction has led to her losing her job and this has exacerbated her mental health issues. Both of her parents have passed away in recent times, with her mother’s funeral taking place the day before her husband was incarcerated. Finally, Ms Rahipere is culturally connected and has insight into her offending through that cultural lens.

[19]   Mr Simmonds has also provided me with a Māori Cultural Response Report that provides useful background information about Ms Rahipere. This material was not before the Judge, and it reinforces the fact that Ms Rahipere’s recent offending was carried out to feed her addiction rather than for any personal gain. It also describes her very challenging upbringing.

[20]   I consider the personal factors Mr Simmonds has identified, including Ms Rahipere’s addiction, justify a further discount on both sets of charges. Taking an overall starting point of 48 months imprisonment I consider a further discount of six months was warranted.

[21]   If the appropriate sentence on the second set of charges was 24 months imprisonment before taking into account mitigating factors other than guilty pleas,5 it follows that the end sentence on those charges ought to have been 18 months. If added to the sentence of 15 months imprisonment imposed on the first set of charges this would result in an end sentence of 33 months imprisonment.

5 As calculated at [10].

Totality principles

[22]   Given that cumulative sentences were imposed it is necessary to ensure the end sentence is not wholly out of proportion to the overall gravity of the offending.6 The Judge expressly referred to this principle but ultimately concluded no adjustment was required to reflect totality principles because the offending occurred whilst Ms Rahipere was serving the sentence of home detention. The issue for present purposes is whether any further adjustment is required if the end sentence is one of 33 months imprisonment rather than 36 months. As I have already observed, Mr Simmonds submits that an end sentence of no more than 23 months imprisonment on all charges was required to reflect the overall gravity of the offending.

[23]   Relevant to any assessment of the overall gravity of the offending is the fact that Ms Rahipere has now been convicted on two sets of charges reflecting her occupation as a low-level retailer of drugs in small quantities. The offending has been motivated mainly by her addiction to methamphetamine. The offending does, however, have a small commercial element as is evidenced by the finding of the “tick books”. The most serious aggravating factor is that the second set of charges reflects drug dealing activity that occurred very shortly after Ms Rahipere began serving a sentence of home detention imposed for similar offending. That factor obviously requires discrete recognition.

[24]   Taking those factors into account I consider the end sentence of 23 months imprisonment suggested by Mr Simmonds to be unrealistic. I have concluded an effective end sentence of two years six months imprisonment on all charges is an appropriate response to the overall gravity of Ms Rahipere’s offending. It represents an uplift of 12 months on the original sentence imposed on the first set of charges before taking into account the credit given to Ms Rahipere for that portion of the sentence she had already served.

6      Sentencing Act 2002, s 85(2).

Result

[25]   The appeal against sentence is allowed. The sentences of 21 months imprisonment imposed on the charges of supplying, offering to supply and being in possession for supply of methamphetamine are quashed. On each of those charges Ms Rahipere is sentenced to 15 months imprisonment. Those sentences are to be served concurrently with each other but cumulatively on the sentences imposed on the first set of charges.

Lang J