Ripia v The the Queen
[2022] NZHC 984
•10 May 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-27
[2022] NZHC 984
BETWEEN ANDREW DIXON RIPIA
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 May 2022 Appearances:
A Schulze for Appellant S Smith for Respondent
Judgment:
10 May 2022
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by me on 10 May 2022 at 2 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Rotorua
RIPIA v R [2022] NZHC 984 [10 May 2022]
[1] After receiving a sentence indication Mr Ripia entered guilty pleas to several drug-related charges in the District Court. These comprised being in possession of methamphetamine for supply (x 3), being in possession of cannabis for supply (x 3), supplying cannabis and being in possession of cannabis, cannabis oil and cannabis utensils. In addition, he pleaded guilty to two charges of being in unlawful possession of a restricted weapon and one charge of receiving a caravan knowing it had been stolen.
[2] On 28 May 2021 Mr Ripia received and subsequently accepted an indicated sentence of eight years two months imprisonment less a discount of 17.5 per cent to reflect guilty pleas. On 16 September 2021 Judge G C Hollister-Jones applied further discounts to reflect other mitigating factors and sentenced Mr Ripia to five years ten months imprisonment.1
[3] Mr Ripia appeals against sentence on the basis that the Judge erred in principle in constructing the sentence and also failed to apply adequate discounts for mitigating factors. He contends these errors led to an end sentence that was manifestly excessive.
The charges
[4] The charges were laid as a result of searches of Mr Ripia’s residential address that the police carried out on three separate occasions.
[5] On 11 May 2020 the police found nine zip lock bags containing cannabis head material having a total weight of 126 grams in the main bedroom of the address. In the same room they found three cannabis cigarettes, 15 millilitres of cannabis oil, 2.7 grams of methamphetamine and methamphetamine pipes.
[6] A search of a vehicle located at the property resulted in seven zip lock bags being found that contained cannabis having a total weight of 187 grams. In a garage and lean-to at the address the police found further quantities of cannabis head and plant material. These weighed a total of approximately 612 grams. In the garage the police also found three sets of electronic scales and several empty zip lock bags.
1 R v Ripia [2021] NZDC 18518.
[7] Following this search the police obtained production orders for Mr Ripia’s cellphone. An analysis of the data stored on the cellphone revealed that during April 2020 Mr Ripia had sold three grams of methamphetamine and four ounces of cannabis.
[8] The second search occurred on 30 September 2020. On this occasion the police found 73.1 grams of cannabis in an ice cream container and 15.5 grams of methamphetamine in a plastic pill container located in a bag sitting adjacent to the ice cream container. In addition, the police found a taser gun, which is a restricted weapon.
[9] Mr Ripia was subsequently granted bail in November 2020. The police searched his address again on 20 November 2020 and discovered a further quantity of cannabis weighing 2.1 kilograms together with several snaplock bags. The police also found another taser gun at the address. In addition, they found a caravan that had earlier been stolen.
[10] In total the police found 18.25 grams of methamphetamine and 3.098 kilograms of cannabis at Mr Ripia’s address. This was in addition to the three grams of methamphetamine and four ounces of cannabis Mr Ripia had sold during April 2020.
The sentence
The sentence indication
[11] The Judge adopted a starting point of nine months imprisonment on the charges arising out of the search of data held on Mr Ripia’s cellphone. These related to the supply of cannabis and methamphetamine during April 2020.2 He then adopted a starting point of two and a half years imprisonment to reflect the items found at the initial search of Mr Ripia’s address on 11 May 2020.
[12] For the offending arising out of the search of the address on 30 September 2020 the Judge adopted a starting point of two and a half years imprisonment on the charge
2 It appears this resulted in Mr Ripia being charged with being in possession of methamphetamine and cannabis for supply rather than supplying methamphetamine and cannabis.
of being in possession of methamphetamine for the purpose of supply. He added uplifts of three months each to reflect the cannabis and the taser found at the address on this occasion.
[13] The Judge then selected a starting point of two and a half years imprisonment to reflect the cannabis found at Mr Ripia’s address during the final search on 20 November 2020. He added uplifts of three and 12 months respectively to reflect the fact that the taser and stolen caravan were also found at the address on this occasion.
[14] From the resulting sentence of ten years imprisonment, the Judge applied a discount of 16 months to reflect the fact that Mr Ripia’s culpability on the cannabis charges was reduced because some of the offending arose out of his use of cannabis to produce a topical ointment for medicinal purposes. This deduction reflected a discount of 25 per cent on five years three months, being the portion of the ten year starting point that related to the cannabis charges.
[15] The Judge then reduced the resulting sentence of eight years eight months imprisonment by 12 months to reflect totality principles. The indicated starting point before adjusting the sentence to reflect aggravating and mitigating factors was therefore seven years eight months imprisonment. The Judge applied uplifts of two months to reflect previous convictions for offending of a similar nature and four months to reflect the fact that the offending detected during the last two searches occurred whilst Mr Ripia was on bail on the earlier charges. This resulted in an indicated sentence of eight years two months imprisonment before taking into account mitigating factors.
[16] The only mitigating factor for which the Judge gave Mr Ripia credit in the sentence indication was that for guilty pleas. The Judge indicated that a reduction of
17.5 per cent would be available to reflect this factor.
The final sentence
[17] At sentencing the Judge applied an additional discount of ten per cent to reflect mitigating factors identified in a cultural report presented to the Court under s 27 of
the Sentencing Act 2002. The Judge summarised these in the following paragraphs of his sentencing remarks:3
[9] My summary of your background is this. You were raised in a loving home. You suffered some physical discipline from your father but it was not excessive for the era. You ended up being a naughty child at school and from the age of eight had to sit at the teacher’s desk. In that era, children that had to sit with the teacher were ones that were hard to manage. At the age of 12, you had a horse riding accident that took you out of the formal education system for two years. You were excluded from school, the old fashioned word was “expelled”, and following that, you went to live with your uncle. What occurred whilst you were living with your uncle, taken together with his suicide, has resulted in your suffering from traumatic memories and continuing bad dreams. Over the years, you have self-medicated by substances to erase those traumatic memories and bad dreams.
[10] Mr Ripia, you got involved with the Tribesmen at 15 and you were patched at the age of 23. You have said that you were an English Māori until you were 15 and an American Māori after you were 15 because you found affinity with things American. By that I assume it was the gangster lifestyle and your involvement with the Tribesmen. You started using cannabis heavily at 14 years of age and your heaviest use of cannabis was in your twenties when you were using half an ounce a day. You started using methamphetamine in 1996 when you were 41. Your heaviest use of methamphetamine was .5 of a gram a day.
[11] You have been in a relationship with your co-offender, [Ms P], for 17 years and that relationship has been a stable influence in your life. Mr Ripia, you are intelligent. Your father gained tertiary qualifications. Your siblings I am told also have tertiary qualifications and good jobs. In 1997, you obtained a Diploma in Māori Management from Te Whare Wānanga o Raukawa and that is despite difficulties you have had with literacy. You are described as a talented mechanic, although you have got no formal qualifications. You are connected to Te Ao Māori, you can recite your pepeha, but unfortunately Te Reo was not passed onto you.
[12] Mr Ripia, you are described as a caring and generous man. One of the most telling references was from your mother:
The norm for him was always putting others first. … He is a good son and a good person at heart. … Andrew has a lot of potentials and to see that erode absolutely crushes me. … I love my son more than I ever thought possible, not because he needs me, because I need him. … It’s a difficult concept for an outsider to understand but it comes from what is inside us with the death of my husband, his father, and the only son living in Murupara.
[13] It is clear you have provided considerable support to your elderly mother and from what I have read, you keep the vehicles running for a lot of whānau, many of whom do not have much money. You have been fixing their vehicles and only asking for a koha. Many of these people deeply respect you.
3 R v Ripia, above n 1.
[18] Finally, the Judge applied a further discount of 2.5 per cent to reflect rehabilitative prospects identified in the cultural report. This resulted in a total discount of 30 per cent, which the Judge calculated as being 28 months, to reflect mitigating factors. After applying the discount the Judge arrived at an effective end sentence of five years ten months imprisonment. He constructed this by means of a series of cumulative sentences. The complicated nature of this exercise is reflected in the fact that the Judge needed to add an addendum to his remarks to correct errors he had made in the sentences he originally imposed.
Grounds of appeal
[19] On Mr Ripia’s behalf Mr Schulze contends that the Judge erred in the following respects:
(a)In arithmetical calculations.
(b)The use of cumulative sentences, leading to an overall starting point that was excessive.
(c)The Judge failed to give an adequate discount to reflect factors identified in the s 27 report.
(d)The Judge failed to provide an adequate discount to reflect rehabilitative prospects.
Decision
Arithmetical calculations
[20] Mr Schulze submits the Judge erred in his mathematical calculations and that the end sentence ought to be two months less by virtue of this. I accept this submission. The error appears to have occurred when the Judge applied a discount of 28 months to reflect the overall discount of 30 per cent he intended to apply for mitigating factors. Applied to the sentence of eight years two months imprisonment this amounted to 29.4 months. It should therefore have reduced the sentence by an additional one or two months depending on whether the figure was rounded up or
down. Although relatively minor, this error would ordinarily need to be rectified to ensure the end sentence reflected the Judge’s intention. However, for reasons that will become obvious it is not necessary to address this issue further.
Was the use of cumulative sentences appropriate?
[21] Mr Schulze argues that the offending represented a connected series of similar events over a period of eleven months and reflects Mr Ripia’s continued involvement in drug-related offending involving both cannabis and methamphetamine. He submits that the Judge therefore erred in principle by imposing cumulative sentences that resulted in a final starting point of ten years imprisonment.
[22] To some extent this argument is based on an erroneous factual assumption because, as I have already recorded,4 the Judge reduced the initial starting point of ten years imprisonment by 16 months and one year respectively to reflect the use of cannabis for therapeutic purposes and totality principles. As a result, the final starting point before taking into account aggravating and mitigating factors was a sentence of seven years eight months imprisonment.
[23] I accept, however, that this submission has merit as a matter of principle because the drug-related offending in the present case was similar in kind even though it occurred on four separate occasions. Concurrent sentences are generally appropriate where offences are of a similar kind and they are a connected series of offences.5 By contrast, cumulative sentences are generally appropriate for offending that is different in kind, whether or not it constitutes a connected series of offences.6
[24] The chosen sentencing method should not, however, affect the end result. Both methods should produce a sentence that reflects the overall culpability of the offending. The risk in imposing cumulative sentences for each set of offences lies in the fact that it can produce a greater sentence than the offending justifies when viewed as a whole. Where cumulative sentences are imposed a reduction to reflect totality principles may therefore be necessary to avoid the end sentence becoming wholly out
4 See this judgment at [14].
5 Sentencing Act 2002, s 84(2).
6 Section 84(1).
of proportion to the overall gravity of the offending.7 Mr Schulze contends the reduction of 12 months to reflect totality principles that the Judge applied in the present case was not sufficient to achieve this object.
[25] As a cross-check on the correctness of the outcome in the present case I therefore propose to re-construct the sentence using the method Mr Schulze suggests is appropriate. However, I do not consider it appropriate to deal with the methamphetamine and cannabis offending globally. The methamphetamine offending relates to the possession of a Class A drug for supply whilst the cannabis charges relate to a Class C drug. The sentencing principles that apply to each are different because each is subject to a different guideline judgment of the Court of Appeal.
[26] The starting point for the methamphetamine offending needs to reflect the fact that it involved the possession for supply of approximately 21 grams of methamphetamine over a six month period. This means the offending falls towards the lower end of Band 2 identified by the Court of Appeal in Zhang v R.8 The starting point for sentences imposed for offending in this band will be between two and nine years imprisonment.9
[27] Mr Ripia now denies selling drugs but his guilty pleas and the indicia of drug dealing activity found in his possession mean his denial cannot be given weight. His role appears to have been that of a street level dealer selling methamphetamine both for commercial gain and to support his own use of the drug. I consider that on a stand- alone basis the methamphetamine offending, occurring as it did on an ongoing basis for approximately six months, justified a global starting point of around two years six months imprisonment.
[28] The cannabis offending was obviously on a larger scale because of the quantities found in Mr Ripia’s possession. However, his role as a retailer of cannabis was similar to that which he played in relation to methamphetamine. This means the offending fell within category 2 identified by the Court of Appeal in R v Terewi, calling
7 Section 85(2).
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
9 At [125].
for a starting point of between two and four years imprisonment.10 The starting point also needs to reflect the fact that cannabis was found in Mr Ripia’s possession on no fewer than three separate occasions. This adds a degree of determination to the offending. I consider the cannabis offending would ordinarily warrant a starting point of around three years imprisonment. Applying the same discount as the Judge (25 per cent) to reflect the use of some of the cannabis for medicinal purposes, the sentence reduces to two years three months imprisonment. It follows that I consider the drug- related offending did not justify a starting point of more than four years nine months imprisonment.
[29] I consider the Judge was entitled to apply the uplifts of three months each to reflect the fact that Mr Ripia was found in possession of a taser on two occasions. However, I consider the uplift of 12 months to reflect Mr Ripia’s possession of the stolen caravan was too high given the fact that the caravan was recovered intact and undamaged. I consider an uplift of no more than six months was required to recognise this aspect of Mr Ripia’s offending. It follows that I consider a global starting point on all charges of no more than five years nine months was required. No adjustment is required to reflect totality principles.
[30] Adopting the approach advocated by Mr Schulze I am therefore satisfied that the overall starting point of seven years eight months imprisonment that the Judge adopted was outside the available range to reflect the overall gravity of the offending. A starting point of no more than five years nine months imprisonment was appropriate before taking into account aggravating and mitigating factors personal to Mr Ripia.
[31] Mr Schulze does not challenge the uplifts the Judge applied to reflect previous convictions for drug-related offending (four months) and offending whilst on bail (two months). The sentence before taking into account mitigating factors should therefore have been one of six years three months imprisonment.
10 R v Terewi [1999] 3 NZLR 62 (CA) at 65.
The level of discounts
[32] Mr Schulze argues that the Judge ought to have applied a discount of at least 20 per cent to reflect the mitigating factors identified in the s 27 report and five per cent to reflect rehabilitative prospects.
[33] The level of discount to be applied in this area is very much a matter of discretion for the sentencing Judge. As the Judge remarked, Mr Ripia has been involved with the Tribesmen gang since the age of 15 years and he became a patched member at the age of 23 years. He is now 55 years of age. As a mature adult Mr Ripia has now had ample opportunity over the last 30 years to make choices about the type of lifestyle he wishes to lead. Furthermore, the pre-sentence report stated that he had made a conscious decision to smoke illegal substances.
[34] As demonstrated by the summary of the s 27 report set out in the Judge’s remarks above,11 Mr Ripia did not suffer from deprivation in his early years to the extent regularly described in s 27 reports. Perhaps the most dramatic aspect of his life was a sequence of abusive events that occurred after he began living with his uncle at 15 years of age. The effect of these on Mr Ripia was undoubtedly exacerbated when he was 34 years of age and his uncle committed suicide. This led directly to Mr Ripia becoming involved in consuming methamphetamine and quickly resulted in addiction issues and convictions for drug-related offending.
[35] These factors are obviously unfortunate. However, I do not consider the Judge was bound to apply a discount of greater than ten per cent to reflect them.
[36] Mr Schulze also contends the Judge ought to have allowed a discount of five per cent rather than 2.5 per cent to reflect Mr Ripia’s rehabilitative prospects. As the Judge observed, however, these are significantly diminished by the fact that he can provide no firm assurance that he will sever his ties to the Tribesmen gang. Mr Schulze says this reflects the reality in which Mr Ripia finds himself at this stage of his life. He emphasises, however, that Mr Ripia wrote a letter to the Judge expressing his firm resolve to cease using drugs. He also has strong support within his community that
11 See this judgment at [17].
should assist him to remain abstinent. He says these factors ought to have prompted the Judge to apply a greater discount to reflect Mr Ripia’s rehabilitative prospects.
[37] I accept the force of Mr Schulze’s submission but, as Ms Smith for the Crown points out, Mr Ripia has always had the support of his community and this has not deterred him from using drugs in the past. His continued association with the Tribesman organisation presents as a further barrier to his long term rehabilitative prospects. I therefore consider the Judge was entitled to reduce the discount that might otherwise be available to reflect the reality of the situation.
[38] It follows that Mr Ripia is entitled to the total discount for mitigating factors nominated by the Judge, namely 30 per cent. Applying this to the adjusted starting point of six years three months imprisonment results in a deduction of 23 months. This reduces the sentence to one of four years four months imprisonment.
Result
[39] The manner in which the Judge constructed the sentence means it is not particularly easy to give effect to this conclusion. I consider the most practical solution is to reduce the sentence imposed on Charge 25, a charge of being in possession of cannabis for supply, from two years to six months. I therefore quash the sentence of two years imprisonment imposed on Charge 25 and impose a sentence of six months imprisonment in its place. The sentences imposed on the remaining charges remain intact.
[40] Counsel have leave to file further memoranda if they consider this outcome does not achieve the desired result.
Lang J