Ripia v The the Queen - [2022] NZHC 984

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…

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 Ripia v The the Queen

Details

AGLC: Ripia v The the Queen [2022] NZHC 984
Case: [2022] NZHC 984
Decision Date: 10 May 2022

CaseChat Overview and Summary

In this case, Andrew Dixon Ripia appeals against his sentence on several grounds, including the use of cumulative sentences, the overall starting point, and the level of discounts for mitigating factors. The court heard the appeal on 9 May 2022, with A Schulze representing the appellant and S Smith representing the respondent. The judgment was delivered by Lang J on 10 May 2022.

The court considered whether the Judge erred in principle by imposing cumulative sentences instead of concurrent sentences for the drug-related offending. The court concluded that the chosen sentencing method should not affect the end result, but the risk in imposing cumulative sentences is that it can produce a greater sentence than the offending justifies when viewed as a whole. The court decided to reconstruct the sentence using the method suggested by Mr Schulze, resulting in a starting point of no more than five years nine months imprisonment before taking into account aggravating and mitigating factors.

The court also considered whether the Judge failed to give an adequate discount to reflect factors identified in the s 27 report and rehabilitative prospects. The court found that the level of discount to be applied in this area is very much a matter of discretion for the sentencing Judge. The court concluded that the Judge was entitled to reduce the discount that might otherwise be available to reflect the reality of the situation, and that Mr Ripia is entitled to the total discount for mitigating factors nominated by the Judge, namely 30 per cent.

As a result of the court's findings, the sentence imposed on Charge 25, a charge of being in possession of cannabis for supply, is reduced from two years to six months. The sentences imposed on the remaining charges remain intact. Counsel have leave to file further memoranda if they consider this outcome does not achieve the desired result.

Orders