Tapine v R
[2020] NZHC 977
•13 May 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-22
[2020] NZHC 977
PETER DOUGLAS TAPINE v
THE QUEEN
Hearing: 12 May 2020 Appearances:
E Hall for the Appellant
A D H Colley for the Respondent
Judgment:
13 May 2020
JUDGMENT OF COOKE J
[1]Mr Tapine pleaded guilty to four charges of drug offending:
(a)possession of a class A drug (methamphetamine) for supply,1
(b)possession of a cannabis plant,2
(c)possession of drug utensils,3 and
(d)unlawful possession of medicines.4
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2), maximum penalty life imprisonment.
2 Section 7(1)(a) and (2), maximum penalty three months’ imprisonment or $500 fine.
3 Section 13(1)(a) and (3)(b), maximum penalty one year’s imprisonment or $500 fine.
4 Medicines Act 1981, ss 46 and 78, maximum penalty three months’ imprisonment or $500 fine.
TAPINE v R [2020] NZHC 977 [13 May 2020]
[2] Mr Tapine was sentenced in March 2020 to two years and two months’ imprisonment.5 Mr Tapine appeals his sentence on the grounds the starting point was too high, the uplift for previous offending was not justified and that greater allowance should have been made for mitigating factors.
Factual background
[3] The charges arose from a police traffic stop on 11 July 2019. Mr Tapine was sitting in the passenger seat and his partner was driving. Police noticed a container in his pocket and questioned him about it. He admitted the container held two “joints”.
[4] A search of the vehicle located multiple items indicative of drug dealing including micro scales, multiple small unused zip-lock bags and seven Valium pills. The pills were not stored in a labelled medicine container and Mr Tapine did not produce a prescription for them. A flick knife was also located in the glovebox of the vehicle. Mr Tapine was arrested and taken to the Masterton Police Station for further searching and processing.
[5] At the station Mr Tapine was strip-searched. Police discovered a small zip- lock bag and a small plastic medicine container. Located in the zip-lock bag was approximately 30 grams of methamphetamine. Inside the plastic medicine container was a further quantity of methamphetamine, not yet weighed. Police also discovered
$840 cash in his possession.
[6] A search was conducted at Mr Tapine’s home address. In the garage police located two cross-bows and four glass pipes. Police recovered a stun gun in Mr Tapine’s bedroom, and another two glass pipes in the living room and in a car parked at the address.
Procedural background
[7] Mr Tapine entered guilty pleas to the possession of cannabis and the possession of drug utensils. He sought a sentence indication on 30 October 2019. Judge Barry
5 R v Tapine [2020] NZDC 5535 [Sentencing decision].
gave a sentence indication of two years, five months imprisonment based on the following approach:6
(a)Starting point of three years’ imprisonment for the lead charge of possession with intent to supply,
(b)Uplift of one year for a charge under the Arms Act 1983 (which was later withdrawn),
(c)Six months’ discount for totality,
(d)Three months’ discount to acknowledge Mr Tapine’s offending was driven by addiction, and
(e)A full guilty plea discount of 25 per cent.
[8] Mr Tapine declined the sentence indication on 12 November 2019. Negotiations as to the charges continued. On 11 December Mr Tapine then sought to revisit the sentence indication on the basis that one of the charges had been withdrawn by Police.7 Judge Barry declined to revisit the sentence on 19 December on the grounds the withdrawn charge was subsumed by the lead charge in any event.8
[9] The Crown withdrew the Arms Act charge and Mr Tapine pleaded guilty to the remaining charges.
Decision under appeal
[10] After outlining the facts the Judge turned to a consideration of Mr Tapine’s personal circumstances. Mr Tapine had a lengthy criminal history but, significantly, this was his first offence related to drug dealing.9 The pre-sentence report recorded Mr Tapine was reportedly using up to half a gram of methamphetamine a day and was selling the drug to fund his personal use. The Judge acknowledged a message from
6 R v Tapine DC Wellington CRI-2019-035-0756, 30 October 2019.
7 Namely, breach of a protection order not to possess firearms.
8 R v Tapine DC Wellington CRI-2019-035-756, 19 December 2019.
9 Sentencing decision, above n 5, at [5].
Mr Tapine accepting unconditional responsibility and expressing remorse for his offending and that he would “welcome any intervention available” to assist him with reintegration.10
[11] Taking the possession for supply as the lead charge, the Judge considered the offending was a street level dealing operation in terms of R v Zhang:11
[11] …With 30 grams it was well stocked and that probably included some for his own consumption and the whole enterprise I accept was very probably subsidising the addiction but underlying that, still a commercial context in which Mr Tapine was the controlling figure so there was a significant role in street level methamphetamine dealing.
[12] The Judge adopted a starting point of three years’ imprisonment. The other charges “would see an uplift warranted of about six months” but for totality the starting point was brought back down to three years.
[13] Turning to personal factors, the Judge uplifted by three months for Mr Tapine’s criminal history, observing if there was a history of drug dealing offending the uplift would be significantly greater.12 Recognising the underlying addiction issue the Judge discounted 10 per cent. After a 25 per cent discount for guilty plea that amounted to an end sentence of two years, two months’ imprisonment.
Relevant law
Approach to appeal
[14] This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that:
(a)For any reason, there is an error in the sentence imposed on conviction; and
(b)A different sentence should be imposed.
10 At [2].
11 Zhang v R [2019] NZCA 509.
12 Sentencing decision, above n 5, at [13].
[15] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion.13 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.14 An appeal court should not engage in mere “tinkering”.15 The Court of Appeal has accepted, however that there may be cases, albeit rare, where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.16
Zhang v R: new guideline judgment
[16] Zhang is the new guideline judgment for Class A offending for the supply of methamphetamine. The Court of Appeal held that assessing culpability requires particular consideration of the role played by the offender in the supply operation, as well as the quantities involved.17 A two stage approach is required in selecting a starting point. The Court must first determine a band based on quantity as it “remains the first determinant of sentence”.18 After a band and appropriate range has been ascertained, the Court must consider the role played by the offender in determining placement within the band. The bands are as follows:
Band one: less than 5 grams Community based to 4 years Band two: less than 250 grams 2 – 9 years Band three: less than 500 g 6 – 12 years Band four: less than 2 kilograms 8 – 16 years Band five: more than 2 kilograms 10 years – life
13 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
14 Ripia v R [2011] NZCA 101 at [15].
15 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler v Commissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
17 Zhang v R, above n 11, at [104].18 At [103].
[17] The Court of Appeal indicated that, in determining the role, sentencing Judges may derive assistance in this context from the following adaptation of the guidelines adopted by the United Kingdom Sentencing Council:19
Role Lesser Significant Leading · Performs a limited function under direction;
· engaged by pressure, coercion, intimidation;
· involvement through naivety or exploitation;
· motivated solely or primarily by own addiction;
· little or no actual or expected financial gain;
· paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
· no influence on those above in a chain;
· little, if any, awareness or understanding of the scale of operation; and/or
· if own operation, solely or primarily for own or joint use on non- commercial basis.
· Operational or management function in own operation or within a chain;
· involves and/or directs others in the operation whether by pressure, influence, intimidation or reward;
· motivated solely or primarily by financial or other advantage, whether or not operating alone;
· actual or expected commercial profit; and/or
· some awareness and understanding of scale of operation.
· Directing or organising buying and selling on a commercial scale;
· substantial links to, and influence on, others in a chain;
· close links to original source;
· expectation of substantial financial gain;
· uses business as cover; and/or
· abuses a position of trust or responsibility.
[18] In providing guidance as to the role the Court observed “role is a matter more likely to be known by the offender than the Crown” but in practice, the facts necessary to establish guilt will often justify inferences about role, knowledge and gain.20 Where those inferences are sufficient to prove an aggravating fact, an evidential burden will move to the offender to displace the inference.21
Ground one: starting point
[19] There is no dispute that Band two is appropriate given Mr Tapine was found with 30 grams in his possession. The essential issue is whether, in light of Mr Tapine’s
19 At [126].
20 At [127].
21 At [127].
role in the operation, his culpability falls in the middle range of the band, or the bottom end. Ms Hall submits a starting point of no more than two years’ imprisonment is appropriate. She submits that much of the methamphetamine in Mr Tapine’s possession would have been for his own use, and that the Judge’s conclusion that Mr Tapine had a “significant role” was misplaced as there is no evidence that Mr Tapine performed a management function, directed others within an operation, was motivated by financial gain or had an awareness of the scale of the operation. The Judge inferred Mr Tapine played a significant role a street level dealing operation in justifying the three year starting point.
[20] In my view the Judge’s assessment was probably correct although Mr Tapine’s role does not fit perfectly into either the “lesser” or “significant” category. Mr Tapine was likely motivated by his own addiction, which may indicate a lesser role. There is also no direct evidence to suggest he was directing others or had any awareness or understanding of the overall scale of the operation. But it seems to me there are other factors that elevate his role to one of significance:
(a)The quantity of the methamphetamine was of reasonably high value (the District Court Judge estimated in the order of $10,000). That would likely generate an income in excess of that required to purely finance his drug habit, in addition to the $840 cash in his possession.
(b)Possession of equipment (micro scales, multiple small zip lock bags) indicating his role was higher up in the operation than just a distributer.
(c)Firearms found on the property and a knife in the glovebox of the car potentially indicate his dealing activities were at a level where personal protection was required.
[21] The three year starting point is also in line with the following comparable cases provided by the Crown:
(a)Joyce v R:22 The offender was charged with possession of 28.35 grams of methamphetamine to supply, supplying and offering to supply a further 3.76 grams as well as charges for possession of cannabis and firearms. The offender was found with the methamphetamine, a small quantity of cannabis, a shotgun, two airguns, a tick book to record transactions, a cell phone and $12,885 in cash. Taking the possession with intent to supply as the lead charge, the Judge adopted a starting point of four years’ imprisonment. The Court of Appeal held the operation was small and functioning at retail level, and although Mr Joyce suffered from an addiction there was no evidence his addiction was such as to diminish his culpability.23
(b)Govender v R:24 Charged with possession of 29 grams of methamphetamine for supply. Police found a small quantity of cannabis, digital scales, zip-lock bags, a notebook containing transaction records and $816.80 in cash. The High Court Judge found that, while Ms Govender was motivated by an addiction, there was no evidence to suggest minimal participation.25 The quantity, cash and notebook indicated a moderate degree of commerciality. The starting point of three years, six months’ imprisonment was upheld on appeal.
[22]For these reasons I see no error in the starting point adopted.
Ground two: uplift
[23] Ms Hall submits the three month uplift for previous convictions was in error as Mr Tapine has no prior convictions for drug dealing. The effect, she says, is to double punish Mr Tapine for previous offending. Significantly there had been no such uplift in the sentencing indication.
22 Joyce v R [2020] NZCA 124.
23 At [20].
24 Govender v R [2019] NZHC 3212.
25 At [18].
[24] Caution is needed when uplifting for previous offending to ensure the defendant is not further sentenced to a crime they have already been punished for. Prior convictions may be taken into account where the history indicates a predilection to commit a particular time of offence, or as a predictor of future behaviour justifying a longer sentence to protect the public.26 Where the prior offending is of a similar type a greater uplift is justified, particularly where the history reflects a similar type of offending.27 There are a number of cases where uplifts for criminal history have been overturned if the offending was different in kind and did not justify a further uplift for deterrence purposes.28
[25] Mr Tapine has a lengthy criminal history, with over 130 convictions primarily for violence and dishonesty offences. He has several, relatively minor recent convictions for drug offending (possession of drug utensils in 2015 and 2018, possession of cannabis in 2018). The District Court Judge recognised this was Mr Tapine’s first dealing offence, noting the uplift would have been higher if the history was for offending of a similar type.29
[26] It seems to me that an uplift in the present case can be questioned. Mr Tapine’s previous offending involves violence and dishonesty offences. They would not normally give rise to an uplift for drug dealing offending. There is some very minor drug related offending, but not such that would warrant an uplift. So even though the uplift was relatively small it can be legitimately questioned.
[27] Ultimately what matters is the ultimate end sentence, rather than the process by which it was reached, however. I would not interfere with the sentence on this ground alone. I return to its significance below.
Ground three: mitigating factors
[28] The Judge gave a discount of 10 per cent to recognise Mr Tapine’s struggle with addiction and his expressed desire to take part in rehabilitative treatment.30
26 Johnston-Walters v R [2011] NZCA 367.
27 R v Arthur [2005] 3 NZLR 739 (CA).
28 Te Hau v R [2013] NZCA 431; and R v Shepherd [2018] NZCA 232.
29 Sentencing decision, above n 5, at [13].
30 At [13]-[14].
Ms Hall submits the discount was insufficient to reflect remorse and Mr Tapine’s drug addiction issues.
[29] The Court of Appeal in Zhang held that addiction warrants a rehabilitative approach to sentencing and may warrant a discount of up to 30 per cent, depending on the extent to which it mitigates moral culpability for the offending.31 In considering a discount for addiction the sentencing Judge must consider:32
(a)Addiction should only be relevant where it is causative of the offending. Non-causative addiction will be of little mitigatory relevance.
(b)Addiction should generally not be treated as mitigating where the offender operated above the street level or was a self-sufficient dealer but it is possible for impairment to co-exist with more substantial offending.
(c)Any discount for addiction should be based on persuasive evidence, as opposed to mere self-reporting, and the onus of proof lies on the offender to establish the extent and effect of addiction.
[30] Ms Hall explains a drug and alcohol report was requested but not available at sentencing due to COVID-19 restrictions. The pre-sentence report referred to by the District Court Judge records Mr Tapine scored at high risk for alcohol and methamphetamine use on the Alcohol, Smoking and Substance Involvement Test. Mr Tapine also told the report writer he was using up to half a gram of methamphetamine per day and had started selling to fund his personal use. As to rehabilitative potential, it appears the report writer was sceptical as to whether Mr Tapine’s professed desire to change would persist post-sentence given he had declined to participate in treatment in 2019. Finally, the report discussed Mr Tapine’s difficult upbringing, suffering from assault at the hands of family members and witnessing domestic violence from a young age.
31 Zhang v R, above n 11, at [149]-[150].
32 At [147]-[148].
[31] Turning to remorse at the outset of his judgment the Judge acknowledged a message from Mr Tapine accepting “absolute unconditional responsibility and expressing his remorse” but at the conclusion of his sentence did not give a separate discount for remorse.33 Possibly that was an oversight on the part of the Judge. Given that expression, it is possible a further discount for remorse may have been appropriate.34
[32] More significantly a drug and alcohol report is now available. I accept that it is appropriate for this Court to take into account given that it was only not available because of the COVID-19 restrictions. The report brings together the issues of addiction, personal deprivation and remorse. It records a series of post-traumatic incidents from early childhood. Mr Tapine was a victim of violence and witnessed multiple deaths, and developed an increased dependence on alcohol abuse, with his drug addiction following. He is on prescribed medication for an anxiety disorder and also says that he is on depression medication. He reports times of being in the care of a boys penal facility, of mistreatment and abuse, and of living on the streets. At one point he was admitted to the psychiatric ward of Wellington Hospital and reports he has been diagnosed with mental health disorders. These factors suggest that there are factors that reduce the level of Mr Tapine’s culpability.
[33] In Miller v R the Court of Appeal gave a 19 per cent discount for mitigating factors including addiction, personal background, and mental health together with commitment to rehabilitation.35 Given the contents of the new report, it seems to me that this case is in a similar category, and the discount for mitigating factors (including remorse) should be approximately 20 per cent, rather than the 10 per cent allowed by the District Court Judge.
[34] As I indicated earlier, had the question of the uplift been the only issue in the appeal I would not have interfered with the sentence. But the greater discount warranted for personal mitigating circumstances lead me to the conclusion that the end sentence was manifestly excessive.
33 Sentencing decision, above n 5, at [2].
34 See McArthur v R [2013] NZCA 600 at [13]–[14]; and Rowles v R [2016] NZCA 208 at [18].
35 Miller v R [2020] NZCA 131 at [39].
Ground four: calculation methodology
[35] Finally, Ms Hall submits the Judge ought to have taken a global approach to calculating the end sentence, instead of a three stage approach. She explains the propriety of the global approach is currently before the Court of Appeal.36 She provides the following table to demonstrate:
Three-stage Two-stage or Global Starting Point 3 years 3 months (39 months) 3 years 3 months (39 months) Mitigating 10% for addiction leaves 35 35% for mitigating factors factors months minus 25% for plea = = 25 months (10% 26 months addiction, 25% plea) End Sentence 26 months, 2 years 2 months 25 months, 2 years 1 month
[36] It seems to me that, irrespective of the outcome of the impending decision of the Court of Appeal, what matters is the ultimate sentence, rather than the precise process by which it is reached. By itself the District Court’s approach does not lead to an excessive sentence.
Result
[37] Given the above circumstances it seems to me that the appropriate starting point was three years’ imprisonment, that there should be no uplift for previous convictions, and that there should be discounts of approximately 20 per cent for mitigating circumstances and then approximately 25 per cent for a guilty plea. The resulting sentence is materially lower than the one imposed. The District Court Judge’s sentence of 26 months is overturned and substituted with a sentence of 21 months’ imprisonment.
[38] Given the time Mr Tapine has now spent in prison the question of home detention is not in issue. But the sentence is now one of short duration. It is important that Mr Tapine now receives assistance in terms of his managing his addiction issues, and I note that he personally emphasised his desire not to go back to his former ways
36 Moses v R CA167/2019. The oral hearing for this appeal was recently heard on 30 April 2020 and the decision is awaiting release.
during the hearing. The parties agreed that should I reach the point where a sentence of short duration was imposed the following special conditions, in addition to the standard release conditions, should apply:
(a)To attend an assessment for alcohol and drug counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(b)To attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
Cooke J
Solicitors:
E Hall, Pipitea Chambers, Wellington for Appellant Crown Law, Wellington for the Respondent
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