Ropiha v R
[2013] NZCA 60
•13 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA70/2012 [2013] NZCA 60 |
| BETWEEN TRIESTE MARTIN ROPIHA |
| AND THE QUEEN |
| CA80/2012 |
| AND BETWEEN RICKY JOHN MACRAE |
| AND THE QUEEN |
| Hearing: 12 February 2013 |
| Court: White, Simon France and Asher JJ |
| Counsel: T Sutcliffe for appellant Ropiha |
| 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 a starting point of six years for Mr MacRae. He indicated the material he had read showed Mr Ropiha was the head and guiding force both in terms of the overall direction of the operation, and the use of intimidating force.
Somewhat favourably to Mr Ropiha, the Judge treated the conspiracy charge as relating to the 64 grams found at the time of the searches. This meant the two charges – conspiracy and possession for supply – largely overlapped. The Judge accepted Mr Sutcliffe’s submission that Mr Ropiha was not being sentenced for actual supply.
To the six year starting point the Judge imposed a one year uplift for previous offending and gave a 10 per cent discount for the guilty plea. This left a sentence of six years four months.
The focus of the appeal was on the starting point. Mr Sutcliffe focussed on band two of R v Fatu,[2] which covers a range of three to nine years for offending in relation to five to 250 grams. His submission was that it was wrong to take a starting point in the middle of the band when the offending related to a quantity near the bottom.
[2] R v Fatu [2006] 2 NZLR 72.
We take a quite different view and regard Mr Ropiha as being very fortunate to receive the sentence he did. It misunderstands the charging to focus only on the 64 grams. That quantity is covered by the possession for supply charge but to concentrate on that ignores the broader scope captured by the conspiracy charge.
The reality is that the 64 grams is just a snapshot of a conspiracy that had run for at least two months. One cannot speculate on the quantities involved in the preceding two months, but it is artificial to contend that Mr Ropiha is not being sentenced for involvement in the supply of amounts greater than the 64 grams. The whole point of the conspiracy charge is to capture criminal conduct over the period of the conspiracy. The conduct is more culpable if there is evidence that the conspiracy actually led to supply, rather than being foiled before that happened. Here the text evidence showed numerous discussions that, it can be assumed with certainty led to the actual supply of quantities of methamphetamine, in addition to the 64 grams.
Understood in its correct light, a starting point in the middle of band two was favourable to Mr Ropiha. We also note that in 2005 he was sentenced to a four year term for possessing methamphetamine for supply. To have offended again on the present scale so soon after this reinforces our observation that he is fortunate to have received the sentence he did.
Mr Ropiha’s appeal is dismissed.
Appeal by Mr MacRae
Mr MacRae was described in the summary of facts as second in command. He disputed that but accepted he had helped Mr Ropiha out at various times. The Judge considered it a distinction that did not merit a disputed facts hearing and we agree. The key point is that Mr Ropiha was rightly treated as coming above those who were solely street level dealers.
Mr MacRae’s objection to a four year starting point appears to be the amount by which his starting point exceeded the other lesser co‑offenders. Of those, we know that the starting point for Daniel Ward was three years, and for Caroline Dodds it was two years. The Judge’s sentencing remarks explain the differences. Both Mr Ward and Ms Dodds were regarded as street level dealers who had not performed the extra functions attributed to Mr MacRae. However, Mr Ward had independently engaged in cannabis dealing for which he was also being sentenced, hence the difference between he and Ms Dodds. The disparity between Mr MacRae and these offenders is explicable and gives no cause for concern.
Returning to Mr MacRae’s sentence, his starting point is two thirds that of Mr Ropiha. The summary of facts records that Mr MacRae was himself regularly involved in supply, sometimes in quantities as much as seven grams. A tick list found at his address detailed considerable sales. He would also on occasions assist Mr Ropiha such as by collecting money from the street dealers.
Mr MacRae is not charged with ownership of the 64 grams. However, he pleaded guilty to a conspiracy spanning two months and a summary of facts that shows him to be both an active street dealer in his own right of quantities that come within band two, and a person who was also assisting a more significant player to carry out his offending. There can be no complaint with a four year starting point.
The second facet of his appeal is rather unusual. Mr MacRae pleaded guilty on 20 October 2010. Sentencing was planned for early 2011, but amongst other things, Mr Ropiha had by then indicated an intention to seek leave to vacate his pleas. The decision seemed to be taken to put sentencing on hold until this was resolved. It seems also that police inquiries were going on into Mr MacRae’s level of involvement as disclosures were being made by some other people. It is not clear to us why this should have delayed the sentencing of a person who had pleaded guilty to an agreed statement of facts.
This situation continued throughout 2011 with another sentencing date scheduled but vacated. Mr MacRae was finally sentenced on 19 January 2012, almost 15 months after he pleaded.
This delay had two consequences for Mr MacRae. First, he endured more restrictive conditions than he would have done had he been a sentenced prisoner. Second, because he was not a sentenced prisoner he could not access the various programmes the Parole Board were likely to require him to do. This is what happened. Once sentenced, he was immediately parole eligible. He came before the Board but was required to undertake various courses – first a rehabilitation programme, and then a seven month course in the Drug Treatment Unit. He will complete this in April this year and then go back before the Board.
This has been a regrettable course of events that should not have occurred. Mr MacRae’s sentencing should not have been delayed for that period, especially given his likely jeopardy. Situations like this do occasionally arise, most often when the person is already serving a term of imprisonment and so is a sentenced prisoner. In those cases the delay is of little moment. That was not the case here.
The issue is whether anything could have been done about it at sentencing, had the matter been raised, or can be done now. Section 82 of the Sentencing Act 2006, provides:
82 Pre-sentence detention must not be taken into account in determining length of sentence
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
This Court has on various occasions been required to consider whether circumstances akin to detention, but which fall outside s 82, should receive recognition by way of a reduction in sentence length.[3] Mr MacRae’s submission raises a different issue. Section 82 does apply, and he will receive credit for the remand period. However, Mr MacRae also wants a reduction in the length of his sentence because of what he submits are the particular consequences on his parole position of spending this amount of time on remand following a guilty plea.
[3]These include - release on parole on existing sentence deferred because of remand in custody on new charges (R v Paul CA409/05, 26/4/06); length of home detention sentence Kidman v R [2011] NZCA 62; restrictive bail conditions Filoa v R [2010] NZCA 588; time in residences such as Odyssey House (R v Benson CA 86/90, 11/7/90). The history of s 82 and its purposes were recently considered in R v Te Alo [2013] NZCA 47, at [23]–[28].
The Crown position is that s 82 of the Sentencing Act 2002 prevents the sentencing Judge from having regard to the matter. Without having to finally determine the point,[4] we are not persuaded by it. Section 82 has as its purpose reinforcing that the calculation for credit for remand is an administrative function that is not for the Court. That does not necessarily preclude consideration at sentencing of the effects that remand may have had in a particular case. They would need to be unexpected and unusual effects to merit any recognition, but we would not preclude it if such a case arose.
[4]Situations other than in prison that are encompassed by the term “pre‑sentence detention” are identified in s 91 of the Parole Act 2002.
That said, we do not consider an adjustment should have been made in the present case. It is not uncommon for a person to come to sentencing having spent this amount of time on remand. Generally there is not, and should not be, any recognition of this as part of the sentencing exercise. Credit will be given administratively. It is not apparent why, for the purposes of sentencing, serving this remand time post‑conviction is any different to having served it pre‑conviction. In both cases the credit applied will be the same, and the prisoner will commence his or her time as a sentenced prisoner in exactly the same position.
The unusual feature here is that Mr Clark lost the prison benefits that can flow from an early plea and sentencing. As noted, that is unfortunate, but a sentence reduction is not an appropriate response. Mr Clark’s concerns were not a matter for a sentencing Judge. The overall scheme of the Sentencing Act 2002 and the Parole Act 2002 makes clear the respective functions of the sentencing court and the Parole Board, and we are of the view that the present circumstances fall plainly into the latter.
For these reasons we consider that no error occurred at the time of sentencing by the failure of counsel to raise the matter with the Judge. We add for completeness, that given Mr Clark’s imminent completion of his addiction treatment course, and his anticipated reappearance before the Parole Board, we would not have regarded it as appropriate to make any adjustment at this late stage.
Mr MacRae’s appeal against sentence is also dismissed.
Solicitors:
Crown Law Office, Wellington
11