Ropiha v Police - [2016] NZHC 839

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-15 [2016] NZHC 839

BETWEEN
RICHARD ERNEST ROPIHA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 27 April 2016

Appearances:

K Paima for the Appellant
S E Burdes for the Respondent

Judgment:

29 April 2016

JUDGMENT OF DAVIDSON J

Introduction

[1] This appeal is against sentence imposed by His Honour Judge MacAskill on

28 January 2016.1 The appeal is filed out of time but leave is not opposed, and is given.

[2] The sentence imposed included 12 months imprisonment on a range of offences, including the driving charges to which this appeal relates. Forfeiture and disqualification orders were made. The appellant was sentenced on three charges of driving while suspended, which occurred on different days within a two-week period.

· Driving while suspended (3rd or subsequent).2 Date of offence

2 October 2015.

1 Police v Ropiha [2016] NZDC 1277.
2 Land Transport Act 1998, s 32(1) and (4).

ROPIHA v NZ POLICE [2016] NZHC 839 [29 April 2016]

· Driving while suspended (1st or 2nd).3 Date of offence 7 October

2015.

· Driving while suspended (3rd or subsequent).4 Date of offence

16 October 2015.

[3] Mr Ropiha was also found in possession of 7.7g of methamphetamine5 and a needle for injecting for his own use6 when he was stopped on 16 October 2015, something that the appellant did not think was of consequence and that he “just gave himself a birthday present”. He was also found in possession of a firearm.7

[4] He has multiple prior convictions for driving with a suspended licence. These charges fell for consideration in terms of the penalties for a “third or subsequent offence”, for which a maximum term of imprisonment of 2 years, and a non-discretionary disqualification order for “1 year or more” are stipulated.

Grounds of appeal

[5] The appellant was sentenced to concurrent disqualification periods of

18 months which he submits was manifestly excessive.

[6] He also submits that Judge MacAskill failed to give reasons for sentence, and that he should have done so, as to why a disqualification period greater than the minimum of 1 year was imposed.

Relevant Principles on appeal

[7] The appeal against sentence is brought under s 244 of the Criminal Procedure

Act 2011.

3      Section 32(1) and (3).
4      Section 32(1) and (4).
5      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a).
6      Section 13(1)(a) and (3).
7      Arms Act 1983, s 45(1).

[8] This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.8

[9] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the…

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.

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Details

Case: [2016] NZHC 839
Decision Date: 29 April 2016

CaseChat Overview and Summary

Ropiha v Police concerned an appeal against sentence imposed by the Christchurch District Court, including 12 months imprisonment for driving while suspended and other related offences. The appellant was sentenced to concurrent disqualification periods of 18 months for three instances of driving while suspended, which he argued was manifestly excessive. The appeal was brought under the Criminal Procedure Act 2011, and the court examined whether there had been an error in the imposition of the sentence. The court considered the appellant's submissions and the relevant sentencing principles, including those stated in Leaupepe v Police and Hitchens v R, and found that the sentence imposed was not manifestly excessive. The court also noted that the appellant had multiple prior convictions for driving with a suspended licence, and the sentencing judge was entitled to take the several, proximate, and defiant breaches into account. Therefore, the appeal was dismissed.

This case highlights the importance of considering public safety concerns in sentencing for driving while suspended, and the need for a balance between the need to keep dangerous drivers off the road and the need to provide offenders with hope of rehabilitation. The court emphasised that it should only intervene in cases where the sentence is "manifestly excessive", and that the discretion in relation to disqualification is "less fettered" than conventional sentencing.

Orders