Tipene v The Queen - [2014] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/2013
[2014] NZCA 56

BETWEEN	RAPATA TIPENE Appellant
AND	THE QUEEN Respondent

Hearing:	4 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	J W Watson for Appellant G H Vear for Respondent
Judgment:	10 March 2014 at 11:30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

Following a jury trial in the District Court at Whangarei, Rapata Tipene was convicted of kidnapping, wounding with reckless disregard, threatening to kill (all involving his former partner) and one count of intentional damage. Judge Duncan G Harvey sentenced Mr Tipene to six years imprisonment on the lead charge of kidnapping and imposed a minimum non-parole period of three years, six months.[1] Mr Tipene appeals against his sentence on the grounds it was manifestly excessive and that the minimum non-parole period was not required.
[1]R v Tipene DC Whangarei CRI-2011-088-1980, 9 April 2013.
Mr Tipene also filed an appeal against conviction, but at the outset of the hearing Mr Watson provided the Court with a notice of abandonment of that appeal.

The sentence

In sentencing Mr Tipene, the Judge took the charge of kidnapping as the lead offence but, taking into account the other offences, particularly the wounding and the seriousness of the threat to kill, he fixed the starting point at five years imprisonment. The Judge then uplifted that by one year to take account of Mr Tipene’s previous bad history of violence, particularly domestic violence. Judge Harvey considered the minimum non-parole period of three years, six months was required to meet the considerations of s 86 of the Sentencing Act 2002.

The appeal

On Mr Tipene’s instructions Mr Watson advanced three grounds of appeal:
(a)the sentence imposed for the lead offence of kidnapping was manifestly excessive;
(b)the sentence for the threatening to kill charge (of five years) was too high; and
(c)the Judge did not consider Mr Tipene’s personal circumstances when imposing the minimum non-parole period.

The lead offence

Mr Watson submitted that the Judge should have taken the wounding with reckless disregard offence, rather than the kidnapping charge, as the lead offence. If he had, Mr Watson argued that it would not have been open to the Judge to fix the starting point at five years imprisonment as the wounding charge carried a lesser maximum penalty.
We are satisfied Judge Harvey was correct to take the charge of kidnapping as the lead offence in this case. The kidnapping and detention of the victim by Mr Tipene in his truck enabled and led to the other offending against her.
In the present case Mr Tipene, the victim and another person, Mr Greville, were all at Mr Greville’s home following a party at Mr Tipene’s work. Mr Tipene became fixated with the idea that the victim was sexually attracted to Mr Greville despite the fact she had done nothing to arouse that suspicion. After an altercation during which Mr Tipene threw…

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 The Queen

Details

AGLC: Tipene v The Queen [2014] NZCA 56
Case: [2014] NZCA 56
Decision Date: 10 March 2014 at 11:30am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Rapata Tipene against his sentence was dismissed. Tipene was convicted of kidnapping, wounding with reckless disregard, threatening to kill, and intentional damage, all involving his former partner. The District Court Judge Duncan G Harvey sentenced Tipene to six years imprisonment for the lead charge of kidnapping, with a minimum non-parole period of three years and six months. Tipene appealed on the grounds that his sentence was manifestly excessive and that the minimum non-parole period was not warranted. Tipene also filed an appeal against his conviction, but it was abandoned at the hearing.

The court considered Tipene's argument that the kidnapping charge should not have been the lead offence, as the wounding with reckless disregard charge carried a lesser maximum penalty. However, the court found that kidnapping was the most serious offence and that it enabled the other offending against the victim. The court also found that the starting point of five years imprisonment was appropriate, given the seriousness of the offending and Tipene's previous history of violence. The court rejected Tipene's argument that his personal circumstances should have been considered when imposing the minimum non-parole period. The court found that the minimum non-parole period was necessary to denounce and deter Tipene's offending, and to protect the victim and the community.

The appeal against sentence was dismissed, and the sentence imposed by the District Court was upheld.

Orders