Tiopira v Police - [2012] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-23 [2012] NZHC 1720

JAMES TURIHI TIOPIRA
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 16 July 2012

Counsel: R Barnsdale for Appellant
J E Tarrant for Respondent

Judgment: 16 July 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

JAMES TURIHI TIOPIRA V NEW ZEALAND POLICE HC HAM CRI-2012-419-23 [16 July 2012]

[1] Mr Tiopira pleaded guilty in the District Court to 33 charges of dishonestly using a document to obtain a pecuniary advantage. He also pleaded guilty to four charges of receiving stolen credit cards or Eftpos cards.

[2] On 27 April 2012, Judge Burnett sentenced Mr Tiopira to an effective term of

27 months imprisonment on all charges.[1] Mr Tiopira appeals to this Court against the sentence on the basis that it is manifestly excessive.
[1] R v Tiopira District Court Hamilton CRI-2011-019-006533, 27 April 2012.

Facts

[3] The events giving rise to all the charges occurred over a 14 day period between 14 and 28 July 2011. During that period, Mr Tiopira came into possession of stolen credit cards and Eftpos cards on four separate occasions. On each occasion he obtained the card very shortly after it had been stolen from the owner. He then immediately used the cards to obtain either cash or goods. Many of the transactions occurred within minutes of each other. In total, Mr Tiopira obtained money and goods to the value of $11,606.21.

[4] Mr Tiopira has 71 previous convictions. Many of thsee are for offending involving different kinds of dishonesty.

The structure of the sentence

[5] The Judge took a starting point of 30 months imprisonment to reflect the totality of all offending. She then added an uplift of six months imprisonment to reflect the fact that Mr Tiopira has numerous relevant previous convictions. She then applied the maximum discount available, 25 per cent, to reach the end sentence of 27 months imprisonment.

Issue on appeal

[6] On appeal, counsel for Mr Tiopira advances a single ground. This is that the starting point of 30 months imprisonment the Judge selected was manifestly

excessive. He accepts that the uplift the Judge applied to reflect Mr Tiopira’s

previous convictions was appropriate, as was the discount given for his guilty pleas.

Decision

[7] As both counsel agree, and as the authorities demonstrate, there is no tariff, or guideline, judgment of the Court of Appeal in this area of offending. That is no doubt because the circumstances in which the offending can occur will vary so widely. Importantly, in the present case, however, there were a number of aggravating factors that needed to be reflected in the starting point the Judge adopted.

[8] The first of these was that Mr Tiopira came into possession of stolen cards on no fewer than four occasions. In each case he did so within a very short period after the card had been stolen. Taken together, all of the offending occupied just 14 days. This demonstrates, without question, that…

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.

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Details

Case: [2012] NZHC 1720
Decision Date: 16 July 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of James Turihi Tiopira v New Zealand Police was heard. The appellant, Mr Tiopira, pleaded guilty to a series of charges involving the dishonest use of stolen credit and Eftpos cards. The offending took place over a 14-day period, during which Mr Tiopira obtained and used stolen cards on multiple occasions, resulting in losses to the value of $11,606.21. The District Court sentenced Mr Tiopira to an effective term of 27 months imprisonment, a sentence he now appeals on the basis of being manifestly excessive.

The appeal focused on the starting point for the sentence, which the District Court Judge had set at 30 months imprisonment. The appellant argued that this starting point was too high, given the lack of precedent for such a severe starting point in cases involving stolen credit cards. The Court of Appeal considered whether the starting point was appropriate, taking into account the nature of the offending, which included multiple instances of obtaining and using stolen cards within a short timeframe, and the significant amount of money obtained. The appeal court also noted that the Judge appropriately considered the appellant's previous convictions, which included multiple instances of dishonesty-related offences.

The Court of Appeal found that the starting point of 30 months imprisonment was within the range of appropriate sentences for such offending, considering the aggravating factors present in the case. The court held that the appellant's extensive use of multiple stolen credit cards over a short period, and the significant financial losses involved, justified a starting point higher than those typically seen in cases involving a single stolen credit card. The appeal was dismissed, and the original sentence was upheld.

Orders