Tapsell v The the Queen - [2022] NZHC 473

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-51

[2022] NZHC 473

UNDER the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

RYAN KARL TAPSELL

Appellant

AND

THE QUEEN

Respondent

Hearing: 28 February 2022

Counsel:

D L Henderson for Appellant R P Bates for Respondent

Judgment:

15 March 2022

JUDGMENT OF OSBORNE J

(reasons)

This judgment was delivered by me on 15 March 2022 at 4.40 pm

Registrar/Deputy Registrar Date:

TAPSELL v R [2022] NZHC 473 [15 March 2022]

Introduction

[1] Ryan Tapsell was sentenced in the District Court on a charge of assault,1 one charge of assault on a person in a family relationship,2 and a representative charge of contravening a protection order.3 He had pleaded guilty to those charges, while the Police withdrew a number of other charges.

[2] On 7 December 2021 Judge Turner sentenced Mr Tapsell to two years four months’ imprisonment on the charge of contravening a protection order, with concurrent sentences of seven months’ imprisonment for assault in a family relationship and three months’ imprisonment for assault (the sentence).4 A protection order was also made against Mr Tapsell.

[3] Mr Tapsell appealed the sentence on the basis the Judge erred by giving insignificant discounts for mitigating factors, resulting in a manifestly excessive sentence. He also appealed the imposition of the protection order. In a Result Judgment I dismissed the appeal, with reasons to follow.5

Facts

[4] The facts were comprehensively set out in the sentencing notes of the District Court judgment. I summarise them below.

[5] Mr Tapsell was approximately 48 years old at the time of offending. The victim, his partner, was 25 years old. They commenced their relationship in May 2019 and purchased a home together in Dunedin in December 2019.

1      Crimes Act 1961, s 196: maximum penalty one years’ imprisonment.
2      Section 194A: maximum penalty two years’ imprisonment.
3      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a): maximum penalty of three years’ imprisonment.
4      R v Tapsell [2021] NZDC 24189 [the sentencing].
5      Tapsell v R [2022] NZHC 398.

[6] On 19 June 2020 the victim obtained a temporary protection order against Mr Tapsell. This order was in force at the time of the subsequent offending.6

Assault

[7] On 1 October 2020 Mr Tapsell became involved in a heated argument with the victim in the living room. Mr Tapsell became annoyed with the victim’s screaming and yelling. Mr Tapsell held the victim down in the corner of the couch and while holding the victim’s face with his hands stated, “I should kill you”.

Assault on a person in a family relationship

[8] On 5 October 2020 an argument took place between Mr Tapsell and the victim. Mr Tapsell was ignoring the victim as she lay in bed crying. She asked Mr Tapsell a number of times if he was going to ignore her. Eventually Mr Tapsell swore at the victim, accused her of starting…

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 Tapsell v The the Queen

Details

AGLC: Tapsell v The the Queen [2022] NZHC 473
Case: [2022] NZHC 473
Decision Date: 15 March 2022

CaseChat Overview and Summary

In Tapsell v The Queen, the appellant, Ryan Karl Tapsell, appealed against his sentence of two years four months’ imprisonment and the imposition of a protection order against him. Tapsell was convicted of contravening a protection order, assault, and assault on a person in a family relationship. The appeal was dismissed with reasons. The court found no error in the District Court’s calculation of the sentence, including the discounts provided for mitigating factors, and concluded the sentence was not manifestly excessive. The court also found no error in the Judge’s imposition of a protection order against Tapsell. The court held the Judge had carefully considered the permissive power under s 123B Sentencing Act and the facts surrounding Tapsell’s offending relevant to the need for his partner’s protection. The court found the alternative suggested by the appellant—of effectively inviting the parties to take the matter back to the Family Court—would have been open to criticism as disregarding the victim’s reasonable needs of protection.

Orders