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Tipene v R

Tipene v R

Case [2021] NZCA 565 27 October 2021

Sentencing

Aggravated Burglary

Minimum Period of Imprisonment

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA393/2020
[2021] NZCA 565

BETWEEN	ADAM TIPENE Appellant
AND	THE QUEEN Respondent

Hearing:	27 September 2021
Court:	Goddard, Woolford and Mander JJ
Counsel:	H G de Groot and J A H Randerson Reid for Appellant M H Cooke for Respondent
Judgment:	27 October 2021 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentences imposed in the District Court for the aggravated burglary, the aggravated assault using a motor vehicle, and the injuring a police dog charges are quashed and substituted with cumulative sentences of three years and nine months’ imprisonment, nine months’ imprisonment and six months’ imprisonment, respectively. That results in an overall effective sentence of five years’ imprisonment.
CThe minimum period of imprisonment is quashed.
D All other sentences imposed in the District Court remain unchanged, including the cumulative periods of disqualification from driving in respect of the dangerous driving and failing to stop charges.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

During the course of his trial in the Whangārei District Court, Mr Tipene pleaded guilty to a range of charges relating to his aggravated burglary of a Northland address. He was sentenced by Judge McDonald to five years and three months’ imprisonment and ordered to serve at least 60 per cent of that term.[1] He appeals his sentence on the basis the starting point for the aggravated burglary charge was excessive, and no allowance was afforded for mitigating factors detailed in a report prepared pursuant to s 27 of the Sentencing Act 2002. He also argues it was not necessary to impose a minimum period of imprisonment (MPI).

Background

[1]R v Tipene [2020] NZDC 11896 [District Court decision].

In the early hours of 22 December 2018, police received a report that a stolen vehicle was being driven dangerously. After a patrol car located this vehicle and pulled up behind it, Mr Tipene got into the vehicle and sped away. He reached speeds estimated between 120 and 140 kph and drove on the wrong side of the road. At times he would stop around blind corners and reverse towards the following patrol car, forcing the police to take evasive action to avoid being rammed. He threw items from his car, including glass bottles, in an attempt to stop the police pursuing him.
Mr Tipene drove up a narrow, winding country road and lost control of his vehicle. He crashed into a fence and then took off on foot. He made his way to a residential address surrounded by bush at the end of a long driveway. After unsuccessfully attempting to start a motorcycle, he entered the house through an unlocked door. The two occupants, who were asleep upstairs, were woken by the sound of Mr Tipene in the house. When they confronted him and asked him what he was doing, he became aggressive and demanded $50,000 from them.
The male occupant convinced Mr Tipene to go…

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 Tipene v R

Details

AGLC: Tipene v R [2021] NZCA 565
Case: [2021] NZCA 565
Decision Date: 27 October 2021 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Adam Tipene appeals against his sentence imposed by the Whangārei District Court. Tipene was convicted of aggravated burglary, aggravated assault using a motor vehicle, injuring a police dog, conversion of a vehicle, failure to stop, dangerous driving, resisting police, and unlawful interference with a motorcycle. The appeal focuses on the sentence imposed for the aggravated burglary, the appropriateness of the starting point for this offence, and the imposition of a minimum period of imprisonment (MPI).

The court considered the starting point for the aggravated burglary charge to be excessive, as it did not adequately account for mitigating factors outlined in the s27 report. The court found that the absence of planning and premeditation did not render the starting point of four and a half years' imprisonment excessive, but rather it could be considered generous. The court also found that an uplift for the balance of offending, discount for the factors identified in the s27 report, and guilty plea discount should be applied to arrive at the final sentence.

The court quashed the sentences imposed in the District Court for the aggravated burglary, aggravated assault using a motor vehicle, and injuring a police dog charges, substituting them with cumulative sentences of three years and nine months' imprisonment, nine months' imprisonment, and six months' imprisonment, respectively, resulting in an overall effective sentence of five years' imprisonment. The court also quashed the order imposing a minimum period of imprisonment, while all other sentences imposed in the District Court remained unchanged.

Orders