Rapata v The King
[2025] NZHC 2217
•7 August 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2025-488-75 [2025] NZHC 2217
BETWEENWAYNE WHAKAITI TUMANAKO RAPATA
Appellant
AND THE KING
Respondent
Hearing: 7 August 2025
Appearances: W T Main (on behalf of S Thode) for Appellant P Hamber for Respondent
7 August 2025
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 7 August 2025 at 3.30 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Thode Utting, Auckland
Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei
RAPATA v R [2025] NZHC 2217 [7 August 2025]
[1] Mr Rapata pleaded guilty in the District Court to 12 charges relating to the possession and supply of methamphetamine and cannabis. He also pleaded guilty to a charge of failing to provide the access code to his cellphone. On 10 June 2025,
Judge D J McDonald sentenced Mr Rapata to four years imprisonment.1
[2] Mr Rapata appeals against sentence. He contends the Judge selected a starting point for the sentence that was too high and that he failed to apply appropriate discounts to reflect mitigating factors. Mr Rapata says that these errors resulted in the Judge imposing a sentence that was manifestly excessive.
The offending
[3] On 2 May 2024, the police pulled over a vehicle that was linked to a person they wanted to speak to. When the vehicle stopped, the police found that Mr Rapata was the driver. He was not the person they had been seeking when they stopped the vehicle. However, whilst speaking to Mr Rapata the police officers noticed a small quantity of cannabis in the centre console of his vehicle. They then exercised their powers of warrantless search and discovered further quantities of drugs in the vehicle. They found a small bag containing three grams of cannabis in Mr Rapata’s wallet. In a Nike bag they found methamphetamine having a total weight of 38.33 grams.
[4] When the police asked Mr Rapata to provide the access code to his cellphone he refused to do so. They then seized the cellphone. Subsequent analysis of data extracted from the device revealed that Mr Rapata had supplied and offered to supply methamphetamine and cannabis on numerous occasions between 13 and 25 April 2024. The total amount of methamphetamine involved cannot be established. At sentencing, the Crown contended that the total amount of methamphetamine involved was 141.33 grams. The Judge sentenced Mr Rapata on this basis.
1 R v Rapata [2025] NZDC 12326.
The sentence
[5] In setting the starting point the Judge referred to the guideline judgments of the Court of Appeal and Supreme Court in Zhang v R2 and Berkland v R.3 The Judge considered that Mr Rapata had played a significant role in the offending because, as his counsel accepted, he was managing his own operation and was motivated both by addiction and financial gain. He had been running a drug-dealing operation as a sole trader at a wholesale level. This was a step up from that of a street level dealer. He would generally offer to supply drugs in ounces rather than in smaller quantities as would be usual for dealing at street level.
[6] Taking these factors into account, the Judge selected a starting point of five and a half years’ imprisonment on the charges relating to the possession and supply of methamphetamine.4 He then applied an uplift of six months to reflect the charges of supplying and being in possession of cannabis.5
[7] From the starting point of six years’ imprisonment the Judge applied a discount of 10 per cent to reflect guilty pleas.6 He then applied further discounts of 10 per cent to reflect mitigating factors identified in a report tendered under s 27 of the Sentencing Act 2002 and 5 per cent to reflect addiction issues from which Mr Rapata suffers.7 He declined to provide any discount in relation to remorse.8 Finally, the Judge reduced the sentence by six months to reflect the fact that Mr Rapata had been subject to restrictive electronically monitored (EM) bail conditions for a period of approximately 11 months.9 This produced the end sentence of four years’ imprisonment.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
3 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
4 R v Rapata, above n 1, at [12].
5 At [13].
6 At [14].
7 At [21]–[22].
8 At [16].
9 At [15].
Was the starting point too high?
[8] It is common ground for present purposes, as it was at sentencing, that Mr Rapata’s offending fell within band two identified in Zhang v R.10 This band relates to offending involving less than 250 grams of methamphetamine. Offending within this band will attract a starting point of between three and 11 years’ imprisonment. Further, both counsel agree that Mr Rapata’s role fell within the category described by the Court of Appeal in Zhang as “significant”.
[9] On Mr Rapata’s behalf, Mr Main contends that a starting point of no greater than four years six months’ imprisonment was appropriate to reflect the methamphetamine offending. To support this argument he relies on the approach taken in Dalwood v R, Poppen v R and R v Cossey.11 The quantities of methamphetamine involved in those cases were 87.45 grams, 43.95 grams and 114.75 grams respectively. Starting points of between three years six months and four years six months were selected in those cases. Mr Main contends that this indicates that the starting point of five years six months that the Judge adopted in the present case was excessive, particularly having regard to the total amount of methamphetamine involved.
[10] At sentencing, the Crown relied on R v Griffiths,12 in which the offender played a significant role and dealt in methamphetamine having a total weight of 119.25 grams. In that case, a starting point of four years imprisonment was selected. The Crown also relied on Scott v R,13 in which the offender supplied or offered to supply a total quantity of 104.75 grams of methamphetamine. His role was between that of lesser and significant. In that case this Court upheld a starting point of four years imprisonment. On behalf of the Crown Mr Hamber points out that the quantity involved in the present case is greater than that in either Griffiths or Scott. He therefore contends a higher starting point is appropriate.
[11] I agree with this submission. The quantity of methamphetamine involved in the present case is slightly above the mid-point for offending within band two. It also
10 Zhang v R, above n 2, at [125].
11 Dalwood v R [2022] NZHC 2683, Poppen v R [2022] NZHC 364 and R v Cossey [2021] NZHC 1333.
12 R v Griffiths [2023] NZHC 357.
13 Scott v R [2024] NZHC 2274.
needs to be borne in mind that Mr Rapata was acting as a wholesaler who commonly sold methamphetamine in ounces. He was not a street level dealer as appears to have been the case in the authorities to which counsel have referred.
[12] I have therefore concluded that a starting point of five and a half years’ imprisonment was not outside the available range for the methamphetamine offending. I note that Mr Main does not challenge the six month uplift the Judge applied to reflect the cannabis offending.
Did the Judge provide inadequate discounts to reflect mitigating factors?
[13] Mr Main does not take issue with the fact that the Judge declined to apply any discount for remorse. He also accepts as appropriate the reduction of six months to reflect the time spent by Mr Rapata subject to restrictive EM bail conditions, as well as the discounts applied to reflect guilty pleas and mitigating factors identified in the s 27 report. However, he contends the Judge did not provide adequate discounts to reflect Mr Rapata’s addiction issues and rehabilitative efforts.
Addiction issues
[14] The Judge explained his reasons for giving Mr Rapata a five per cent discount to reflect his addiction issues in the following passage of his remarks:14
[17] Addiction is also claimed. You claimed both to the probation officer and in the s 27 report that you were highly addicted to methamphetamine. Your former wife also says that you are. Addiction can be a mitigating factor, and I refer to paragraph [10](k) of Zhang v R, where the Court of Appeal said:
Addiction is shown to be causative of the offending is a mitigating consideration. It may in its own terms justify a sentence discount of up to 30 per cent, although that is not to be treated as an absolute limit. Addiction will often combine with mental health issues, and the two may need to be considered in combination, although without the doubling-up of an otherwise appropriate discount. Addiction also calls for consideration of a rehabilitative response as part of the sentence.
[15] Mr Main contends that the Judge ought to have applied a discount of at least ten per cent to reflect this factor. He relies in this context on the observations by the Court of Appeal in Zhang to which the Judge referred in the passage cited above.
14 R v Rapata, above n 1.
[16] The material provided by Mr Rapata’s counsel at sentencing demonstrates that Mr Rapata began using methamphetamine approximately ten years ago following the breakdown of his marriage. His use of methamphetamine quickly developed into fully fledged addiction that dominated his life. It also led directly to the present offending because Mr Rapata was motivated in large part to sell drugs to finance his own habit. For these reasons I accept that, on a standalone basis, Mr Rapata’s issues with addiction justified a reduction of greater than five per cent.
[17] However, the factors identified in the s 27 report include the issues Mr Rapata has faced over the last ten years with addiction to drugs and alcohol.15 As is so often the case, those issues flow to some extent from Mr Rapata’s problematic early family environment in which alcohol abuse and financial hardship were notable features. To his credit, however, he was able to successfully work for approximately 20 years as a builder after he left school. During this period he had no involvement with drugs and appears to have led a fulfilling life until the breakdown of his marriage. This was caused by Mr Rapata’s excessive alcohol consumption.
[18] The level of overlap between Mr Rapata’s addiction issues and the factors identified in the s 27 report means it is not helpful to view the individual discounts the Judge applied on a standalone basis. It is much more realistic to view the discounts applied to reflect addiction issues and the factors identified in the report on a combined basis. Adopting this approach, I consider the total discount of 15 per cent was sufficient to reflect both Mr Rapata’s addiction issues and the remaining mitigating factors identified in the s 27 report.
[19]This ground of appeal fails as a result.
Rehabilitative efforts
[20]The Judge dealt with this issue as follows:
[19] Rehabilitation. You have done next to nothing in that regard. You have completed the Making Changes group programme at Salvation Army, not a specific intensive drug addiction programme. You have not sought to engage with Odyssey House, Higher Ground or the Ngāti Hine Addiction Centre. If
15 As its title makes clear, the s 27 report is actually a drug and alcohol report.
you were highly addicted, as you claim, you would have sought inpatient rehabilitation.
[21] Mr Main points out that Mr Rapata had undertaken several courses whilst awaiting sentence. As the Judge noted, these included the Salvation Army’s “Making Changes” day programme, which Mr Main advises me is a structured intervention focused on behavioural change and relapse prevention for persons with drug dependencies. Mr Rapata had also completed a tikanga Māori-based rehabilitation course that focused on his identity, re-connection with his whānau and accountability for his actions. By the time he was sentenced he had also secured a residential placement at Ngati Hine’s Te Hurihanga programme. Mr Main submits that these steps demonstrated a tangible commitment by Mr Rapata to his reintegration and recovery. He says the Judge ought to have provided a modest discount, perhaps five per cent, to reflect the rehabilitative efforts Mr Rapata had undertaken before sentencing.
[22] I agree that another Judge may have given Mr Rapata a modest discount to recognise the rehabilitative steps he had taken before sentencing. This may have reduced the end sentence by approximately three months. However, this does not necessarily mean the end sentence was manifestly excessive.
[23] I accept the Crown’s submission that the reduction of six months to reflect the time Mr Rapata had spent on EM bail was very generous. It was equivalent to more than 50 per cent of the time he had spent on EM bail. Although there is no firm rule in this area, discounts of around one-third of the time spent on EM bail are commonly applied where bail conditions are restrictive and the offender has complied fully with them.
[24] In the present case the Crown acknowledges the bail conditions to which Mr Rapata was subject were restrictive because he was required to observe a 24-hour curfew for a period of approximately 11 months. They were relaxed on two occasions in December 2024 to allow him to attend family events. Mr Rapata breached his bail conditions on two occasions in August and November 2024 but the breaches were relatively minor. Given that background he would have ordinarily been entitled to a
reduction of his sentence of around three and a half months. He was therefore very fortunate to have his sentence reduced by six months.
[25] Taking this factor into account I am satisfied that any failure to apply a discount to reflect rehabilitative efforts did not result in the end sentence being manifestly excessive.
Result
[26]The appeal against sentence is dismissed.
Lang J
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