Ropiha v R - [2013] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA70/2012
[2013] NZCA 60

BETWEEN TRIESTE MARTIN ROPIHA
Appellant

AND THE QUEEN
Respondent

CA80/2012

AND BETWEEN RICKY JOHN MACRAE
Appellant

AND THE QUEEN
Respondent

Hearing: 12 February 2013

Court: White, Simon France and Asher JJ

Counsel: T Sutcliffe for appellant Ropiha
G Boot for appellant MacRae
K A L Bicknell for Respondent

Judgment: 15 March 2013 at 3.00pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Messrs Ropiha and MacRae were part of a group who pleaded guilty to various drug offences shortly after the start of their trial. Mr Ropiha was treated as the group’s leader who was in effect supplying the others to then deal at street level. He was sentenced to six years four months’ imprisonment.
Mr MacRae was recognised as being lower down the chain than Mr Ropiha, but was viewed more seriously than the street dealers. He performed some functions of a second in command, or a trusted off‑sider. He was sentenced to three years eight months’ imprisonment.[1]
[1] R v Ropiha DC Hamilton CRI 2009‑019‑002789, 19 January 2012, Judge Tompkins.
On appeal both men challenge the starting point taken for their offending. Mr MacRae also raises a separate issue of whether regard should have been taken of the fact that, even after pleading guilty, he spent 14 months as a remand prisoner until he was eventually sentenced.

Facts

Both men pleaded guilty to count one in the indictment which alleged a conspiracy to supply methamphetamine between 21 January and 26 March 2009. Mr Ropiha also pleaded guilty to possessing for supply the 64.1 grams of methamphetamine located at his house at the time of his arrest.
The police executed search warrants at the end of the conspiracy period. As well as locating the methamphetamine, seized telephone and text records provided insight into a supply network that had been in existence for some months.
The allegations to which the men pleaded were that Mr Ropiha would source bulk supplies and then supply them in smaller quantities to a group of street level dealers. It was said that Mr Ropiha supplied at least seven dealers, one of whom was Mr MacRae. The summary of facts attributed to Mr MacRae the role of second in command and a go‑between for Mr Ropiha and the dealers. He disputed this at sentencing and we will return to it.
The meetings at which Mr Ropiha would distribute the methamphetamine occurred at the house occupied by a co‑offender, Caroline Dobbs. Mr MacRae had also lived there for a period. When police executed the warrant, they found the usual trappings of dealings and a small amount (less than a gram) of methamphetamine.
At the same time other locations associated with Messrs Ropiha and MacRae were searched. All together 64 grams were seized, as well as the accompanying paraphernalia of scales, point bags and cash.

Appeal by Mr Ropiha

Judge Tompkins took…

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 Ropiha v R

Details

AGLC: Ropiha v R [2013] NZCA 60
Case: [2013] NZCA 60
Decision Date: 13 March 2013

CaseChat Overview and Summary

Trieste Martin Ropiha and Ricky John MacRae were appellants in this case, both appealing against their sentences for drug-related offences. Ropiha was the leader of a drug supply group and was sentenced to six years and four months' imprisonment. MacRae was recognised as a secondary player in the group and received a three years and eight months' imprisonment sentence. Both men appealed on the basis that the starting point for their offending was incorrectly calculated. MacRae also argued that the length of his remand period should have been considered in his sentencing.

The court was required to decide if the starting point for sentencing was correctly calculated and if the length of MacRae's remand period should have been taken into account. The court also needed to consider if the delay in sentencing MacRae was an error and if it should have any bearing on his sentence.

The court found that the starting point for Ropiha's sentence was correctly calculated, as the conspiracy charge related to the broader scope of criminal conduct over the period of the conspiracy, not just the 64 grams found at the time of the searches. The court also found that the starting point for MacRae's sentence was appropriate, as he was an active street dealer and also assisted a more significant player in carrying out their offending. The court found that MacRae's delay in sentencing should not have had any bearing on his sentence, as the Sentencing Act 2006 prevents the court from taking into account any part of the period during which the offender was on pre-sentence detention in determining the length of any sentence of imprisonment. The court found that no error occurred at the time of sentencing by the failure of counsel to raise the matter with the Judge.

The appeals against sentence were dismissed.

Orders