Ropitini v The Queen
[2020] NZHC 3426
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-425-29
CRI-2020-425-30 [2020] NZHC 3426
BETWEEN TAN ROPITINI
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 December 2020 Counsel:
S G Vidal for Appellant R W Donnelly for Crown
Judgment:
18 December 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 18 December 2020 at 2.30 pm
Registrar/Deputy Registrar Date:
ROPITINI v R [2020] NZHC 3426 [18 December 2020]
[1] Tan Ropitini was, on a number of charges, sentenced by Judge Farnan in the District Court to 11 months’ imprisonment, but with leave to apply for home detention.1
[2] His convictions (on guilty plea) were for supply of methamphetamine; possession of methamphetamine for supply and common assault.
[3] Mr Ropitini appeals the sentence on the basis that it was manifestly excessive. He asserts that there were two errors in the sentencing considerations:
(a)because he was a prisoner who before his sentence had been recalled while on parole (on an earlier sentence), the Judge should have taken into account when sentencing him on the present charges his pre- sentence time on recall in prison; and
(b)the Judge took into account, as an aggravating factor, the presence of
$2,900 in cash found in Mr Ropitini’s bedroom.
Facts
[4] On 19 September 2019 police executed a production order on Mr Ropitini’s cell phone, for the period 21 August 2019 to 19 September 2019, for evidence of supplying methamphetamine. Text messages examined showed that Mr Ropitini had been organising and selling quarter gram to one gram amounts of methamphetamine. On 3 October 2019 Mr Ropitini was interviewed by police and admitted supplying methamphetamine. He described himself as a “middle man”, connecting people who possessed methamphetamine in touch with those who wanted to purchase it.
[5] A second production order was executed for the period up to Mr Ropitini’s arrest. Again, the text messages showed that he was organising and selling methamphetamine on a regular basis in quantities between a quarter gram and one gram. On occasions Mr Ropitini would arrange more than one sale a day and he had repeat customers. On one occasion Mr Ropitini discussed the prospect of pre-selling
1 R v Ropitini [2020] NZDC 18735.
half an ounce of methamphetamine in quarter gram units. In exchange for this transaction, he would receive a half gram of methamphetamine.
[6] On 3 October 2019, $2,900 cash was found in Mr Ropitini’s bedroom, although Mr Ropitini denied being the owner. On pleading guilty, however, Mr Ropitini accepted the Summary of Facts which recorded that the cash was linked to the supply of methamphetamine. Judge Farnan made a forfeiture order in relation to the cash.2
[7] The common assault charge arises from a subsequent altercation between Mr Ropitini and another inmate when he was in custody at the Invercargill Prison on 6 April 2020. CCTV footage showed Mr Ropitini and the victim walking in the exercise area. Without warning, Mr Ropitini roundhouse kicked the victim in the head, striking him on the mouth. The victim fell backwards on to the ground. The victim refused to make a statement or receive medical treatment.
Further facts — Mr Ropitini’s previous sentence and recall on parole
[8] When the present offending occurred, Mr Ropitini was subject to a nine-year prison term on charges of burglary, threatening to kill/do grievous bodily harm, other aggravated robbery (twice) and assault with intent to injure (twice). The circumstances of that offending are recounted in a judgment of the Court of Appeal dated 7 December 2012, when Mr Ropitini and co-offenders appealed against sentences imposed by this Court.3
[9] Mr Donnelly, for the Crown, has noted that Mr Ropitini’s offending was inextricably linked to drug offending. The Court of Appeal’s narrative of the factual background to the offending began with Mr Ropitini meeting with one of the eventual victims in February 2011 to discuss the possibility of supplying him with $6,000 worth of cannabis.4 The Court, in relation to the second tranche of offending in 2011 referred to Mr Ropitini and his associates forming a plan to rob a Blenheim house in order to obtain drugs and other property.5
2 At [47].
3 Foster v R [2012] NZCA 575.
4 At [4].
5 At [8].
[10] On that occasion, Mr Ropitini had been sentenced in the High Court to ten years’ imprisonment with a minimum period of imprisonment (MPI) of five years.6
[11] In reducing the sentence of imprisonment by two years, the Court of Appeal took into account the need for Mr Ropitini, while still a young man, to pursue rehabilitation in relation to established drug and alcohol abuse problems.7 The Court of Appeal, in also removing Mr Ropitini’s MPI, recorded:8
The best way to incentivise him is to afford him the opportunity to demonstrate to the Parole Board after he has served a third of his sentence that he is undertaking meaningful change in his life, so that he will not pose a significant risk to the community in the future.
[12] Mr Ropitini subsequently secured parole in August 2018, with a release plan which included a residence at a supported accommodation provider in Gore with an opportunity for employment. However, in March 2019, he was involved in a violent offence against his then-partner and was recalled to parole.
[13] He once again secured parole on 21 August 2019, only to be arrested on the present drug-related charges on 3 October 2019. The Parole Board issued an Interim Recall Order on 4 October 2019. That interim order was subsequently made final before Mr Ropitini was sentenced on the present charges.
[14] His statutory release date on the earlier offending was 2 September 2020. By that date it appears that Mr Ropitini had spent 334 days on recall.
District Court decision
[15] Judge Farnan took as the lead offending the possession of methamphetamine for supply. The Judge accepted that it was relatively low-level offending of its kind. Referring to the guideline judgment Zhang v R,9 her Honour placed the offending at the lower end of band 2, or top end of band 1, with starting points towards four years’ imprisonment.
6 R v Ropitini [2012] NZHC 1927.
7 Foster v R, above n 3, at [20].
8 At [23].
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[16] The Judge considered the aggravating features of Mr Ropitini’s offending were the presence of the cash, premeditation and the level of criminality. For the lead offending, a starting point of 20 months’ imprisonment was adopted. An uplift of three months was applied in respect of the common assault charge. This brought the overall starting point to 23 months’ imprisonment.
[17] A discount of 15 per cent was applied to reflect Mr Ropitini’s addiction issues. A further 10 per cent was applied to reflect his impaired choice and diminished moral culpability.10 A full 25 per cent discount to reflect Mr Ropitini’s guilty pleas was applied. This brought the overall end sentence to 11 and a half months’ imprisonment, which was rounded down to 11 months. Leave was reserved for Mr Ropitini to apply for home detention.
[18] Before Judge Farnan, counsel other than those who appeared before me presented the submissions on sentencing. Submissions were not directed to the time Mr Ropitini had spent on recall.
Principles on appeal
[19] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.13 The focus on appeal is the end sentence, rather than the process by which the sentence was reached.14
10 With reference to Carr v R [2020] NZCA 357 at [60].
11 Criminal Procedure Act 2011, ss 250(2) and 250(3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
14 Islam v R [2020] NZCA 140 at [32].
The impact of recall from parole on sentence
[20] In simple terms, there are two particular ways in which a period of imprisonment served upon recall from parole can impact:
(a)where the prisoner is recalled under an Interim Recall Order (under s 63(1) Parole Act 2002) and continues under that order at the time of a subsequent sentencing which results in a further term of imprisonment, the Department of Corrections when calculating time served on the subsequent sentence must take into account, as pre-sentence detention, the period served under the Interim Recall Order;15 or
(b)on the other hand, where in similar circumstances a Final Recall Order is made following an application for a recall order, the period of imprisonment resulting from the recall from parole does not constitute pre-sentence detention (and is therefore not to be taken into account by the Department of Corrections in calculating time served).16
[21] The courts generally take time on (final) recall into account by applying a discount.17 The Court of Appeal in Tukuafu v R explained that in this situation there can be a risk of double punishment:18 “It is …, in effect, punishment for the present offending and allowance can properly be made for it to avoid double punishment”.
[22] As recently explained by Campbell J in this Court, in Hall v Police many cases are not explicable by reference to the avoidance of double punishment. His Honour provided examples where a discount on sentence has been allowed without reference to any uplift (for offending whilst on parole) or because the discount exceeded the uplift.19
15 Refer sections in Parole Act 2002 including the section requiring calculation of pre-sentence detention and s 91(1) and s 91(6).
16 Parole Act, s 91(5)(a) and 91(6)(a).
17 Oliver v R [2014] NZCA 285; Vernon v R [2010] NZCA 308; Tukuafu v R [2015] NZCA 251; Hall v Police [2020] NZHC 1988.
18 Tukuafu v R, above n 17, at [12].
19 Hall v Police, above n 17, with the relevant cases referred to in footnotes 21 and 22.
Submissions
Appellant’s submissions
[23] Mr Ropitini’s ground of appeal, as stated in his Notice of Appeal, was that no consideration was taken into account for time spent on recall, leading to an excessive sentence. Ms Vidal, on behalf of Mr Ropitini notes (correctly) that Mr Ropitini’s 334 days on recall were not taken into account.20 The effect of this, in her submission, is that the totality principle was not applied.
[24] In her synopsis, Ms Vidal advanced a second ground of appeal. This was that the District Court Judge erred in considering the presence of cash (above at [6]) as an aggravating factor of the offending. She noted that in his statement to the police, Mr Ropitini denied that he was in possession of the cash. Accordingly, she submitted that any uplift applied for the presence of the cash should be deducted from the Mr Ropitini’s sentence.
Analysis
Period of recall — discount
[25] On established sentencing principles, Mr Ropitini’s 334 days on recall fell to be taken into account on sentencing.
[26] Some guidance on the appropriate discount for time spent on recall may be found in the judgment of the Court of Appeal in Thomas v R.21 There, the Court approved a discount of 66 per cent of the actual time spent on recall, observing that it was “in line with the discounts applied in other cases”.22 There was nothing in this case to justify a departure from that approach, provided the sentencing exercise took into account also the fact that Mr Ropitini’s offending occurred while on parole.
[27] That said, there is an inference to be drawn from Judge Farnan’s sentencing notes that she accepted the submission made by counsel for Mr Ropitini that there
20 With reference to s 91(5) of the Parole Act.
21 Thomas v R [2020] NZCA 257 at [16] and [21].
22 At [21], citing O’Carroll v R [2016] NZCA 510; Tukuafu v R, above n 17; Oliver v R, above n 17; and R v Griffiths [2018] NZHC 3132. See also Hall v Police, above n 17, at [33].
should be no uplift for Mr Ropitini’s offending while on parole because Mr Ropitini had consequently served the whole of his sentence.23 As her Honour then made no adjustment on either account, I infer that there was, in effect, a setting off of those two considerations which led to that nil adjustment.
Offending on parole — uplift
[28] The judgment of the Court of Appeal in Oliver v R provides guidance on the appropriate range of uplift for offending on parole.24 In Oliver, the Court of Appeal considered that an uplift of nine months would not have been out of range (to be offset by a month to reflect the period in prison on recall) .25 On the other hand, the Court of Appeal has also recognised that the appropriate level of uplift may diminish as the time between release on parole and reoffending increases.26 Here the offending occurred soon (6 weeks) after Mr Ropitini’s release and was in fact on a second release indicating that the level of uplift should appropriately be higher than might often apply.
[29] In the circumstances, a 15 per cent uplift to the starting point (this factor being an aggravating feature of the offending) would have been appropriate, that is in this case three months.
Prior offending
[30] There was before the Court at Mr Ropitini’s sentencing his extensive criminal history which had begun with a series of burglaries and other dishonesty in 2003, followed by an extensive record of similar offending over the next eight years. In 2011, the very serious offending, which resulted in his sentence of nine years’ imprisonment, occurred. As noted by Mr Donnelly (above at [9]), the resulting Court of Appeal judgment inextricably links that offending to drug offending (albeit not methamphetamine).
[31] On this occasion, the Crown did not press for an uplift in relation to the previous offending and the Judge did not make an uplift in that regard.
23 R v Ropitini, above n 1, at [22].
24 Oliver v R, above n 17.
25 Oliver v R, above n 17, at [10].
26 R v Paul CA409/05, 26 April 2006, at [27]; Hall v Police, above n 17, at [35].
[32] With the structuring of the sentence now under review on this appeal, it is plainly appropriate that Mr Ropitini’s previous offending (up to and including that for which he was sentenced in 2012) properly fell to be taken into account as a personal, aggravating factor.
[33]Responsibly, Ms Vidal did not submit otherwise.
[34] An uplift of three months (approximately 12 per cent from the adjusted starting point) would have been appropriate.
Other adjustments
[35] The Judge, in adjusting the starting point, made an uplift of three months for Mr Ropitini’s assault conviction (above at [7]).
[36] In relation to matters of mitigation relating to Mr Ropitini personally, the Judge provided for discounts of 15 per cent (by reference to addiction issues), 10 per cent (by reference to issues of deprivation identified in a s 27 report); and 25 per cent for Mr Ropitini’s guilty plea.
[37] Counsel on this appeal were of a common view that those adjustments were appropriate.
Calculation of an appropriate sentence
[38] An appropriate sentence, taking into account the additional considerations identified above, could have been calculated as follows:
(a)starting point 20 months
(b)adjusted starting point for aggravating features of offending:
(i)Crimes Act assault 3 months offending on parole 3 months
Total adjusted 26 months
(c)uplift for personal aggravation:
(i)previous offending 3 months
(d)discounts for personal mitigation:
(i)addiction issues 15% (4 months)
(ii)depravation issues 10% (2.5 months)
(iii)guilty plea 25% (6.5 months)
Sub-total (discounts) 13 months
Adjusted sentence (for personal uplifts and
discounts) 16 months
(e)discount for time on recall (334 days total)
(i)at 66% (rounded) 7 months
End sentence 9 months
Should a different sentence have been imposed?
[39] The Judge sentenced Mr Ropitini to 11 months’ imprisonment. The above calculation, most significantly affected by the adoption of a 66 per cent discount approach to time spent on parole, produces a sentence of nine months’ imprisonment.
[40] I am satisfied that such a sentence would have been appropriate and that the 11 months’ imprisonment imposed was manifestly excessive, primarily by reason of the absence of an appropriate discount on account of Mr Ropitini’s time spent on recall.
Disposal of secondary appeal argument
[41] The issue raised by Ms Vidal in relation to the Judge’s consideration of the presence of cash as an aggravating factor was not pursued by Ms Vidal in her oral submissions. Her concession in that regard was appropriate. The summary of facts, which Mr Ropitini had accepted for the purposes of his sentencing, expressly recorded that (although Mr Ropitini denied being the owner of the cash) the cash had been linked to the supply of the methamphetamine. In those circumstances there was nothing inappropriate in the Judge’s having regard to the presence of cash as an aggravating feature. As it happens, the Judge attached no particular uplift figure to the presence of the money. The adjusted starting point for imprisonment adopted by the Judge, upon my review, was well within range whether or not the money in question had been present.
[42] Nothing in the outcome of this appeal turns on whether or not Mr Ropitini was in any way linked to the money in question.
Order
[43]I allow the appeal.
[44] The sentence of 11 months’ imprisonment is quashed and replaced with a sentence of nine months’ imprisonment.
[45] The remaining aspects and conditions of the District Court sentence remain unaffected, in particular:
(a)Mr Ropitini’s leave to apply for home detention remains;
(b)Mr Ropitini will be the subject of release conditions in respect of each of the charges for a period of six months from the expiry of his sentence;
(c)the special conditions set out at [46] of the District Court sentencing notes remain; and
(d)the order for forfeiture of the cash in the sum of $2,900 remains.
Osborne J
Solicitors:
Southern Law, Invercargill Crown Solicitor, Invercargill
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