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Tapine v R

Tapine v R

Case [2020] NZHC 977 13 May 2020

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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…

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 Tapine v R

Details

AGLC: Tapine v R [2020] NZHC 977
Case: [2020] NZHC 977
Decision Date: 13 May 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Peter Douglas Tapine appeals his sentence imposed by the District Court for drug offences. Mr. Tapine had pleaded guilty to four charges: possession of methamphetamine for supply, possession of a cannabis plant, possession of drug utensils, and unlawful possession of medicines. The District Court sentenced Mr. Tapine to two years and two months’ imprisonment. In his appeal, Mr. Tapine argues that 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.

The High Court considered three main issues in the appeal. Firstly, the starting point for sentencing: Mr. Tapine's possession of 30 grams of methamphetamine placed him in Band two, with a range of 2-9 years. While his role in the operation was not perfectly fitting into the "lesser" or "significant" category, the quantity of the methamphetamine, possession of equipment indicating a higher role in the operation, and the presence of firearms, all elevated his role to one of significance. Therefore, the starting point of three years’ imprisonment was appropriate.

Secondly, the uplift for previous convictions: Mr. Tapine's criminal history primarily involved violence and dishonesty offences, with only minor drug-related convictions. The relatively small uplift of three months for previous convictions could be questioned, but the High Court decided not to interfere with the sentence on this ground alone.

Thirdly, the discount for mitigating factors: the District Court had given a discount of 10 per cent to recognise Mr. Tapine's struggle with addiction and his desire to participate in rehabilitative treatment. However, a drug and alcohol report that became available during the appeal process suggested that a greater discount for mitigating factors, including remorse, should be approximately 20 per cent. This led the High Court to conclude that the end sentence was manifestly excessive.

In light of the above, the High Court overturned the District Court's sentence of 26 months and substituted a sentence of 21 months' imprisonment, with special conditions for alcohol and drug counselling, and psychological assessment and treatment, to be imposed in addition to the standard release conditions.

Orders