Tapiki v Police
[2024] NZHC 3257
•5 November 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-57
[2024] NZHC 3257
BETWEEN SAMANTHA MAREE TAPIKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 October 2024 Appearances:
C A Silk for Appellant
R L Hicklin for Respondent
Judgment:
5 November 2024
JUDGMENT OF GRICE J
(Appeal against sentence)
Introduction
[1] Ms Samantha Tapiki was convicted on one charge of conspiring to supply a Class C drug, being cannabis,1 and one charge of bringing an unauthorised item into a prison, being cannabis.2 She was sentenced to nine months’ imprisonment by Judge Greig in the District Court at Hāwera on 19 August 2024.3 The Judge declined to grant leave to apply for home detention. Ms Tapiki appeals against that sentence, and contends that a sentence of six months’ imprisonment would have been appropriate, and leave to apply for home detention should have been granted.
1 Misuse of Drugs Act 1975, s 6(2A)(c) — maximum penalty seven years’ imprisonment.
2 Corrections Act 2004, s 141(1)(a) — maximum penalty three months’ imprisonment, $2,000 fine.
3 Police v Tapiki [2024] NZDC 19873 [sentencing notes].
TAPIKI v POLICE [2024] NZHC 3257 [5 November 2024]
Summary of the offending
[2] Ms Tapiki and her co-offender, Mr O’Connell, were in a relationship at the time of the offending.4 Mr O’Connell was detained in Whanganui Prison when the offending occurred.
[3] On 7 March 2023, Ms Tapiki concealed cannabis plant material on her person and entered Whanganui Prison. There, she handed the cannabis plant over to Mr O’Connell.
[4] Between 1 March and 30 March 2023, Ms Tapiki had a number of conversations with Mr O’Connell over the phone about where to hide cannabis on persons and inside items in order to transport them into prison. They also talked about selling the cannabis in prison and how to avoid being detected. In addition, Ms Tapiki and Mr O’Connell discussed cooking cannabis oil and where to buy ingredients.
Sentencing decision
[5] Judge Greig adopted a starting point of “somewhere between 10 and 12 months’ imprisonment” for the offending.5 He then applied a discount in recognition of Ms Tapiki’s guilty plea, which brought the overall sentence to nine months’ imprisonment.6 However, the Judge noted that the discount was “frankly generous”, as Ms Tapiki had initially pleaded not guilty, despite the fact that her phone calls with Mr O’Connell were recorded, and had only entered her guilty plea on the eve of the trial.7
[6] The Judge concluded that he would not give leave for Ms Tapiki to apply for home detention, as it was unlikely she would comply with the conditions based on her past performance. As part of the sentence the Judge also imposed six months’ post-release conditions and special release conditions.
4 This summary of the offending is drawn from the Judge’s sentencing notes at [2]–[3].
5 At [14].
6 At [15].
7 At [14].
Grounds of appeal
[7]Ms Tapiki’s appeal against sentence is brought on three main grounds:
(a)The sentence for conspiring to supply cannabis is manifestly unjust, as her co-offender Mr O’Connell received a sentence of six months’ imprisonment for the same charge.
(b)The Judge erred in declining to grant leave to apply for home detention based on Ms Tapiki’s past breaches, when she had full time work available, a home, and three dependent children.
(c)The Judge failed to consider the overall sentencing principles set out in ss 7 and 8 of the Sentencing Act 2002.
[8] The Crown opposes the appeal on the basis that the starting point was within range, there was no error in imposing an end sentence of imprisonment, and the end sentence was not manifestly excessive.
Approach on appeal
[9] This appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence imposed by the Judge and that a different sentence should be imposed.8 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the judge in reaching that outcome.10
[10] An order declining leave to apply for home detention is treated as a sentence for the purposes of appeals under the Criminal Procedure Act.11 The Court of Appeal confirmed in Palmer v R that the same standard of review on appeal applies to
8 Criminal Procedure Act 2011, s 250(2).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
11 Sentencing Act 2002, s 80J.
decisions not to commute imprisonment to home detention as it does to any other sentence.12 The Court went on to note that the decision often calls for a difficult exercise of judgment by the sentencing judge, and therefore “the margin of appreciation extended to sentencing judges is usually significant”.13
Starting point
[11] In order to determine whether the overall sentence imposed was manifestly excessive, it must first be considered whether the starting point, in terms of the two-step process set out in Moses v R,14 was within range.
[12] The Crown refers to the guideline judgment of R v Terewi, which sets out sentencing bands in relation to the offence of cultivating cannabis, as applicable to Ms Tapiki’s offending.15 Terewi has also been relied upon in cases involving other cannabis offending, with the Court of Appeal confirming that no distinction is to be made between the cultivation and selling of cannabis in sentencing.16 The Crown says the offending falls within band two of Terewi, which provides for a starting point of between two and four years’ imprisonment, and is the lowest band that encompasses small-scale cultivation of cannabis plants for a commercial purpose, as opposed to merely personal use.17
[13] Ms Silk, on behalf of Ms Tapiki, submits that the correct band is band one, given the small amount of cannabis involved. That band generally involves low level offending for personal use, where a fine or non-custodial sentence is appropriate.18 The borderline between each class in specific cases may be “indistinct”,19 and in this case the Crown submits that a starting point of less than two years is appropriate given that “the cannabis was of unknown quantity and was only supplied on one occasion”. The legislative scheme suggests a lower starting point would be warranted than those
12 Palmer v R [2016] NZCA 541 at [18].
13 At [19].
14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
15 R v Terewi [1999] 3 NZLR 62 (CA).
16 R v Gray [2008] NZCA 224 at [7] and [12]. See also R v Taui CA494/05, 14 June 2006 at [6]; and
R v Williams [2021] NZHC 1368 at [14].
17 Terewi, above n 15, at [4]. See also Amos v Police [2023] NZHC 1148 at [38]–[39].
18 At [4].
19 At [5], citing R v Dutch [1981] 1 NZLR 304 (CA) at 308.
provided for in Terewi where the charge is one of conspiracy, given the lower maximum penalties set out for conspiracy offences under s 6(2A) of the Misuse of Drugs Act, compared to the corresponding full offences under s 6(2).
[14] Also relevant to the present offending are the Court of Appeal’s comments in R v Napia, that deterrence is an important sentencing principle in relation to the smuggling or attempted smuggling of drugs into prisons, given the specific concerns associated with prisoners accessing drugs.20
[15] The Crown cites a number of cases involving the supply of drugs into prison to provide guidance in setting the starting point.21 These are of limited assistance, however, given that there is no charge of actual supply in this case (the instance of Ms Tapiki bringing cannabis into prison was only charged as an unauthorised delivery).
[16] Both the Crown and Ms Silk refer to Tui v R, which I find to be the most relevant comparison. That case concerned one charge of conspiring to supply cannabis oil and one charge of possession of cannabis oil.22 The appellant in that case was an inmate at Whanganui Men’s Prison, who arranged for his three co-offenders to supply cannabis oil to him in prison on two occasions, only one of which was successful. The sentencing Judge relied on several cases, including R v Metcalfe,23 which concerned charges for supply of cannabis into prison. On appeal, Isac J held that the Judge erred in adopting a starting point of 20 months’ imprisonment, and that the appropriate range for the starting point was between eight and a half and 15 months’ imprisonment, given the lower maximum penalty of 10 years’ imprisonment that applies to charges of conspiracy (as opposed to 14 years’ imprisonment for supply).24 The Judge considered a 15-month starting point was appropriate in the circumstances, given that there were
20 R v Napia CA258/00, 27 September 2000 at [12].
21 R v Metcalfe CA312/99, 18 October 1999; R v Geddis HC Christchurch CRI-2005-009-8386, 3 March 2006; R v Clarke [2008] NZCA 501; R v Sullivan HC Wellington CRI-2010-078-1109, 18 February 2011.
22 Tui v R [2021] NZHC 2168
23 Metcalfe, above n 21.24 Tui, above n 22, at [32].
two separate occasions on which an attempt was made to introduce drugs into prison, and to ensure parity with the appellant’s co-offender.25
[17] The Crown submits that the offending in Tui is comparable to the appellant’s, except this case is less serious as it involved cannabis, a Class C drug, as opposed to the Class B drug involved in Tui. It submits that the starting point can therefore be further reduced to reflect the maximum penalty of seven years’ imprisonment, to a range of six to 12 months’ imprisonment.
[18] Ms Silk argues that the starting point should have been six months rather than the 12 months fixed by Judge Greig. She says Isac J in Tui concluded that the inmate’s role in the conspiracy attracted as much culpability as that of the co-conspirator who brought the drugs into prison. However, in Tui the Judge was considering an appeal by the inmate, who had wanted the drugs for personal use. The Judge concluded on the facts of that case that the inmate’s culpability was not “significantly” greater than his co-offenders’, as their roles involved similar levels of premeditation and persistence in their efforts.26 Such an assessment will always be fact dependent.
[19] I accept the Crown’s submission that Ms Tapiki’s culpability lies toward the top end of the range suggested, given that her apparent intention was for the cannabis to be sold in prison, rather than for personal use by her partner, as well as the fact that she actually took the cannabis into prison for this purpose.
[20] Ms Silk further raises the issue of parity of sentence with Mr O’Connell, as a basis for suggesting a lower starting point would have been appropriate. Mr O’Connell was sentenced on a number of charges, one of which was the charge of conspiring to deal with cannabis associated with Ms Tapiki’s offending.27 At sentencing, a starting point of three years was adopted for the lead charge of burglary, with an uplift of six months applied to reflect the drug offending.28 An end sentence of two years and six months’ imprisonment was imposed. On appeal, the starting point
25 At [33].
26 At [31].
27 O’Connell v Police [2023] NZHC 3540. Mr O’Connell also faced three charges of burglary, one charge of theft (under $500), two charges of breach of Corrections Act, and one charge of resisting police.
28 At [8].
was maintained, however an additional discount for police assistance was applied and the sentence was reduced to one year and seven months’ imprisonment.29
[21] Section 8(e) of the Sentencing Act notes that the court must take into account the general desirability of consistency in sentencing similar offenders committing similar offences in similar circumstances. Relevant to parity, the Court of Appeal has made the following observation:30
Whilst it is vital for a sentencing court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[22] The sentencing Judge referred to Mr O’Connell’s sentence, but characterised Ms Tapiki’s offending as more serious than Mr O’Connell’s on the basis that she was “the one who actually was prepared to deal in the drugs … and take them into prison”.31 Ms Silk, for the appellant, submits that this effectively amounts to double punishment, given that Ms Tapiki was also charged separately for taking drugs to prison, and was sentenced to one month’s imprisonment (concurrent) on that charge.
[23] As noted above, the six months attributed to Mr O’Connell’s charge of conspiring to supply cannabis was applied as an uplift to a starting point of three years’ imprisonment on other burglary charges he faced. Given that this was an uplift, it is not comparable to the stand-alone starting point or final sentence received by Ms Tapiki, where the conspiring charge was her lead offence. Therefore, I do not consider that Ms Tapiki’s sentence was incongruous with Mr O’Connell’s.
[24] Ms Tapiki’s willingness to carry out the offending was properly a factor to be taken into account in considering the sentence on the conspiracy charge, despite the fact that she was also charged for actually taking the cannabis into prison. Taking that factor into account did not amount to double counting. Ms Tapiki received a concurrent sentence of one months’ imprisonment for the Corrections Act charge,
29 At [28].
30 R v Kohey (2003) 20 CRNZ 62 (CA) at [20].
31 Sentencing notes, above n 3, at [13].
which did not add to the overall length of her sentence, further indicating that there was no double counting. The sentences imposed properly accounted for totality across the two charges faced.32
[25] In conclusion, I consider the starting point for the offending of between 10 and 12 months’ imprisonment was well within the appropriate range, and the Judge made no error in that regard.
Personal aggravating and mitigating factors
[26] Turning to personal factors, Ms Silk notes that Ms Tapiki has no related drug charges, nor does she have a large criminal history. Furthermore, Ms Tapiki’s offending all occurred within the time she was in a relationship with Mr O’Connell. Ms Silk also contends that Mr O’Connell’s previous offending is arguably much worse than Ms Tapiki’s.
[27] Mr O’Connell’s criminal history is a personal factor which, according to the Moses sentencing methodology, is to be taken into account at stage two, following the setting of the starting point.33 Therefore, any comparison between Ms Tapiki and Mr O’Connell’s offending ought properly to be made in relation to the starting points, which should not reflect their respective criminal histories. In any event, Ms Tapiki’s conviction history was limited, and the Judge did not uplift her sentence on that basis. The treatment of Mr O’Connell’s criminal history is not relevant to Ms Tapiki’s sentence.
[28] In relation to Ms Tapiki’s background, the Provision of Advice to Courts (PAC) report which was before the Judge referred to Ms Tapiki’s formerly “offence free life”, which the Judge acknowledged, noting that her recent offending appeared to be out of character.34 However, the PAC report also observed that Ms Tapiki “appeared to lack insight into the severity of the offending and it was difficult to assess any level of remorse”.
32 Sentencing Act, s 85.
33 Moses, above n 14, at [46].
34 Sentencing notes, above n 3, at [6] and [9].
[29] The Judge did not specify the exact discount applied for Ms Tapiki’s guilty plea, however given the starting point of between 10 and 12 months’ imprisonment, the discount amounted to between one and three months, or 10 to 25 per cent. The Court of Appeal recently summarised the Supreme Court’s observations in Hessell v R regarding guilty plea discounts as follows:35
As the Supreme Court observed in Hessell, the value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case, rather than by reference to a prescriptive scale of discounts that depend on when the plea was entered. Other non-exhaustive considerations include the scale and complexity of the trial which was avoided, the justification for any delay, the inevitability (or otherwise) of conviction and, relatedly, the genuineness of the defendant’s acceptance of responsibility, whether the pleas follow charge and plea negotiations and the benefits to victims and witnesses of not being required to give evidence.
[30] Here, as the Crown put it, the appellant pleaded guilty on the eve of the trial and faced a strong prosecution case, given that her phone calls with Mr O’Connell had been recorded. In those circumstances, the Judge’s discount was, as he described it, “generous”.36
[31] No other personal mitigating features were put forward or considered by the sentencing Judge. In light of the generous guilty plea discount, no further adjustments were appropriate in the circumstances.
[32] Therefore, the Judge did not err in reaching a final sentence of nine months’ imprisonment.
Leave to apply for home detention
[33] As Ms Tapiki received a sentence of less than two years’ imprisonment, she was eligible for home detention.37 It appears the relevant address suitability report was not before the Judge when he was sentencing Ms Tapiki, nevertheless he was required to assess whether he would otherwise have granted home detention aside from the issue of availability of a suitable address.
35 Rawiri v Police [2023] NZCA 171 at [16] (footnotes omitted), citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
36 Sentencing notes, above n 3, at [14].
37 Sentencing Act, s 15A.
[34] Section 80I of the Sentencing Act sets out the circumstances in which a court must grant leave to an offender to apply for home detention:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1)This section applies if—
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[35] The Judge declined to grant leave for Ms Tapiki to apply for home detention. His Honour observed that at the time of the offending, Ms Tapiki had a limited criminal history, consisting of convictions for driving while disqualified and driving with excess breath alcohol dating back to 2009 and 2010.38 However, since then, Ms Tapiki had received further convictions for burglary, drink driving, and three instances of breaching the home detention sentence imposed for the burglary. She had also breached bail during that time and covered up Mr O’Connell’s breaches of bail.
[36] The Judge had reviewed the PAC report, and noted its suggestion that while Ms Tapiki’s recent offending appeared out of character, her willingness to engage in serious criminal offending and disregard for the conditions of her sentence indicated her risk of re-offending was moderate.39 Her risk of causing harm to others was also assessed as moderate. The PAC report also recorded that Ms Tapiki appeared “to lack insight into the severity of the offending”,40 and although she had not been using methamphetamine at the time of the interview, she had previously provided inaccurate information about her substance use. The Judge considered the “fundamental message to come out of that” was that Ms Tapiki was not someone who tells the truth.41
38 Sentencing notes, above n 3, at [4].
39 At [6].
40 At [7].
41 At [8].
[37]At the time of sentencing, three of Ms Tapiki’s children were living with her
— six-year-old twins and an 11-year-old son. While she did not have a job at the time the PAC report was prepared, she produced a signed employment contract at the sentencing hearing indicating that she had accepted a position at the ANZCO freezing works.42
[38] The PAC report recommended a sentence of imprisonment on the basis of Ms Tapiki’s previous disregard for electronically-monitored sentences.43 It was noted that this recommendation was “not made lightly”, given her circumstances as the sole parent of her young children.44 The Judge recognised that leniency had previously been afforded to her because of the children. Ms Tapiki had been provided with an absence to take her children to the pools, however she instead went out drinking and drove her car, which she crashed.45 It was also noted that Ms Tapiki’s great-grandmother had confirmed that she would take care of the children if Ms Tapiki was sentenced to a term of imprisonment.46
[39] Section 16 of the Sentencing Act provides that when considering the imposition of a sentence of imprisonment, the court must have regard to the desirability of keeping offenders in the community as far as is practicable and consonant with the safety of the community. In particular, a court must not impose a sentence of imprisonment unless it is satisfied that:47
(a)a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.
[40] However, s 17 states that nothing in that Part limits the discretion of a court to impose a sentence of imprisonment on an offender if the court is satisfied on
42 At [9].
43 At [10].
44 At [10].
45 At [11].
46 At [12].
47 Section 16(2).
reasonable grounds that the offender is unlikely to comply with any other available sentence.
[41] The Court of Appeal noted in Fairbrother v R that sentences of imprisonment have been set aside and substituted with sentences of home detention in cases involving two types of error of law:48
… One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[42] The Court went on to note that it would equally be an error of law to always commute a short-term period of imprisonment to a sentence of home detention.49 It said:
[30] … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”.50 Even in those cases, however, the choice must be intelligible. The factors that really count must be identified and weighed.
[43] Ms Silk submits that home detention would have been appropriate, particularly given that Ms Tapiki had secured employment by the time of sentencing. Ms Silk suggests that employment is the pathway to rehabilitation. She also contends that the suitability or otherwise of home detention could have been canvassed at the time of the application, following leave being granted. She further submits that the Judge’s decision was based on Ms Tapiki’s past behaviour whilst on home detention, rather than whether imprisonment was the least restrictive sentence available in the circumstances.
48 Fairbrother v R [2013] NZCA 340 at [29] (footnotes omitted).
49 At [30].
50 R v D (CA253/2008) [2008] NZCA 254 at [66].
[44] The Crown submits that the Judge was correct to decline to grant leave to apply for home detention, given the appellant’s performance on her previous sentence of home detention, and her lack of any rehabilitative efforts.
[45] I consider that Ms Tapiki’s employment contract, and the fact that she has three young children in her sole care, are strong factors weighing in favour of home detention. The courts recognise that s 8(h) and (i) of the Sentencing Act, reinforced by the United Nations Convention on the Rights of the Child, require sentencing to consider all relevant circumstances, including children’s interests.51 The Judge did take into account the impact on Ms Tapiki’s children, inquiring to ensure they would be looked after and noting that they were to be cared for by their great-grandmother. To that extent, their interests were considered. Ms Silk has confirmed that the children are with their great grandmother while their mother is serving her term of imprisonment. The Judge also referred to the fact that Ms Tapiki had an offer of employment at sentencing.
[46] However, in this case there are also significant factors that weigh against home detention, which the sentencing Judge was required to take into account in reaching his decision. As noted above, while on her previous sentence of home detention last year, following a conviction for burglary, Ms Tapiki received three convictions for breach of that sentence, one of which was representative. She had been allowed some flexibility during that sentence on account of her children. When the appellant received an absence to take her children to the pool, she did not do so, and instead went drinking, which resulted in a further drink driving conviction.
[47] The Judge was faced with a difficult exercise of judgment in a case close to the “dividing line”, as referred to in R v D.52 However, the primary factor that weighed against home detention was Ms Tapiki’s failure to observe the strictures of electronic monitoring — it has not been an effective sentence in the past. The Judge made no error in declining to grant leave to apply for home detention.
51 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [56]. See also Sweeney v R [2023] NZCA 417 at [27].
52 R v D, above n 50, at [66].
Conclusion
[48] For the reasons above, I conclude that the Judge did not err in the starting point set or discounts applied, nor in his decision to decline leave to apply for home detention. The overall sentence was not manifestly excessive.
[49]The appeal is dismissed.
Grice J
Solicitors:
C & M Legal, Crown Solicitor New Plymouth for Respondent
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