RAHIPERE v NEW ZEALAND POLICE [2020] NZHC 2902

RAHIPERE v NEW ZEALAND POLICE [2020] NZHC 2902 [6 November 2020]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2020-463-122[2020] NZHC 2902BETWEEN HOLLEY FAITH RAHIPEREAppellantAND NEW ZEALAND POLICERespondentHearing: 5 November 2020Appearances: T Simmonds and O Cann for AppellantD McWilliam for RespondentJudgment: 6 November 2020JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 6 November 2020 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Tauranga[1] On 24 July 2020 Ms Rahipere appeared before Judge T R Ingram in the DistrictCourt at Whakatāne for sentence on two sets of drug-related charges. The Judgesentenced her to an effective term of three years imprisonment.1[2] Ms Rahipere appeals against sentence. She contends the Judge erred in severalrespects in structuring the sentence and this has resulted in an end sentence that ismanifestly excessive.The chargesThe first set of charges[3] The first set of charges comprised charges of being in possession of cannabisfor supply, possession of a pipe, supplying methamphetamine, supplying cannabis,possession of methamphetamine and dishonestly obtaining a credit card. On 4 March2020 the Judge had sentenced Ms Rahipere to nine months home detention on thesecharges.2[4] The Judge had arrived at that sentence by adopting a starting point of 24months imprisonment and applying a reduction of six months, or 25 per cent, to reachan end sentence of 18 months imprisonment. He then converted the sentence to oneof 9 months home detention.[5] The Department of Corrections applied for her to be re-sentenced on thesecharges because of the events giving rise to the second set of charges.The second set of charges[6] On the morning of 18 April 2020 the police executed a search warrant at theaddress where Ms Rahipere was serving the sentence of home detention. There theyfound quantities of cash inside plastic zip lock bags. Inside one of the bags of cashwere numerous empty "point bags". The police also found approximately one gramof methamphetamine in a small plastic container together with four small snaplock1 New Zealand Police v Rahipere [2020] NZDC 14679.2 New Zealand Police v Rahipere [2020] NZDC 3721.bags, each of which contained approximately .25 of a gram of methamphetamine. Thepolice also found a set of working digital scales and two "tick books" setting out detailsof names and dollar amounts owing. The police analysed Ms Rahipere's cellphoneand found several messages indicating she was selling methamphetamine.[7] The police also found a broken glass methamphetamine pipe in Ms Rahipere'sbedroom. The base of this was stained, indicating it had been used to consumemethamphetamine. In addition, the police found two stolen Apple iPads on MsRahipere's bed.The sentence[8] The Judge observed that he had converted the end sentence of 18 monthsimprisonment on the first set of charges to one of nine months home detention. Hecancelled the sentence of home detention and reduced the end sentence on the first setof charges by three months to reflect the fact that Ms Rahipere had servedapproximately six weeks of the earlier sentence. This left an end sentence of 15months imprisonment on the first set of charges.[9] The Judge's calculation of the sentence to be imposed on the second set ofcharges is contained in the following paragraph of his decision:3[7] When I take the mix of matters that I am dealing with it seems to methat a reasonably substantial uplift is required, even after giving you credit foryour guilty plea and applying the Zhang factors as best I can it seems to methat the breach of home detention and the nature of that breach, namely dealingclass A drugs while serving a sentence of home detention requires a significantuplift. It would be easy indeed simply to say it is offending at about the samelevel as the previous offending for the drugs, that would produce pretty muchthe same result, namely an 18 month assessment after credit for guilty pleaand then I would need to account for the other types of offending and at y0urage and stage in life and with your history I am prepared to simply set thereceiving charge to one side and not impose any significant uplift in relationto that, but in relation to the breach of home detention in the way that I havementioned I consider that an uplift in the order of nine months would beappropriate. I would be prepared to give you three months' credit for yourplea in the circumstances and that would result therefore in an overall sentenceof 21 months on top of the 15 months already imposed.(Emphasis added)3 New Zealand Police v Rahipere, above n 1.[10] It is difficult to determine from this paragraph how the Judge constructed thesentence. As I read the italicised portion of his remarks he took a starting point of 24months imprisonment as he had done in relation to the first set of charges. He thenapplied a deduction of six months, or 25 per cent, to reflect the guilty pleas. Thisreduced the sentence to 18 months imprisonment. He then observed that an uplift ofnine months would ordinarily have been appropriate to reflect the fact that theoffending had occurred whilst Ms Rahipere was serving a sentence of home detentionimposed for similar offending. This would have increased the sentence to 27 monthsimprisonment. It is evident, however, that the Judge reduced the uplift by three monthsto reflect Ms Rahipere's guilty pleas. If this interpretation is correct the end sentenceought to have been 24 months imprisonment. I am unable to determine how he arrivedat an end sentence of 21 months imprisonment, but that is obviously in Ms Rahipere'sfavour.[11] The Judge did not consider any reduction was warranted to reflect totalityprinciples. He therefore imposed an end sentence of 21 months imprisonment on thesecond set of charges and directed that this was to be served cumulatively on the earliersentence of 15 months imprisonment imposed on the first set of charges. Thisproduced the effective end sentence of three years imprisonment.Argument on appeal[12] Mr Simmonds contends the Judge erred in several respects in fixing thesentence to be imposed on the second set of charges, First, he contends the Judge gaveMs Rahipere insufficient credit for her early guilty pleas. He also says the Judge failedto have regard to relevant mitigating factors, including Ms Rahipere's drug addiction,cultural considerations and compelling family circumstances. Finally, he contends theJudge ought to have reduced the sentence to reflect totality principles.[13] Mr Simmonds submits these factors mean the Judge ought to have imposed aneffective end sentence of no more than 23 months imprisonment on both sets ofcharges.DecisionCredit for guilty pleas[14] Ms Rahipere entered her guilty pleas on the second set of charges on 24 July2020. This was approximately three months after the charges were laid. Ms Rahipereinitially entered not guilty pleas to the charges and they were called before the Courton several occasions before pleas were entered.[15] Mr Simmonds argues that the only credit the Judge gave for guilty pleas wasthe reduction of three months from the uplift to be applied for offending whilst servingthe sentence of home detention. If correct, this means he applied a discount in theorder of approximately 12.5 per cent. On my interpretation of the Judge's remarksthis submission is not correct. The Judge applied a discount of six months, or 25 percent, to reduce the starting point from 24 months to 18 months imprisonment. He thenrecognised the guilty pleas again when he reduced the uplift to reflect the fact that theoffending occurred whilst Ms Rahipere was serving the sentence of home detention.This ground of appeal fails as a result.Other mitigating factors[16] The Judge accepted that Ms Rahipere committed the offences in order to feedher addiction but considered this should not result in any reduction of the sentencebecause the offending occurred whilst she was serving a sentence of home detention.Mr Simmonds points out that in Zhang v R the Court of Appeal expressly held thatlow level offending committed to feed an addiction may result in a lower starting pointor may be regarded as a mitigating factor.4 He says the Judge ought to have applied afurther discount to reflect this factor.[17] The Judge took the issue of Ms Rahipere's addiction into account to someextent in setting the starting point, but with a starting point of 24 months imprisonmentthe level of any discount was relatively small. Furthermore, the fact that the offendingoccurred whilst Ms Rahipere was serving a sentence of home detention was alreadyreflected in the uplift of six months that the Judge applied to the starting point. I do4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137].not consider it should have been taken into account again to deny Ms Rahipere thebenefit of a mitigating factor that was otherwise available to her. I therefore acceptthat Mr Simmonds' submission that some further discount ought to have been appliedto reflect this mitigating factor.[18] In addition, Mr Simmonds submits that at 30 years of age Ms Rahipere is nowmotivated to address her addiction. Her husband is currently incarcerated, and herfive older children are in the care of other family members but she remains in regularcontact with them. She gave birth to a sixth child in prison shortly after beingsentenced on the present charges. In addition, Ms Rahipere suffers from depression.Her addiction has led to her losing her job and this has exacerbated her mental healthissues. Both of her parents have passed away in recent times, with her mother's funeraltaking place the day before her husband was incarcerated. Finally, Ms Rahipere isculturally connected and has insight into her offending through that cultural lens.[19] Mr Simmonds has also provided me with a Māori Cultural Response Reportthat provides useful background information about Ms Rahipere. This material wasnot before the Judge, and it reinforces the fact that Ms Rahipere's recent offending wascarried out to feed her addiction rather than for any personal gain. It also describesher very challenging upbringing.[20] I consider the personal factors Mr Simmonds has identified, including MsRahipere's addiction, justify a further discount on both sets of charges. Taking anoverall starting point of 48 months imprisonment I consider a further discount of sixmonths was warranted.[21] If the appropriate sentence on the second set of charges was 24 monthsimprisonment before taking into account mitigating factors other than guilty pleas,5 itfollows that the end sentence on those charges ought to have been 18 months. If addedto the sentence of 15 months imprisonment imposed on the first set of charges thiswould result in an end sentence of 33 months imprisonment.5 As calculated at [10].Totality principles[22] Given that cumulative sentences were imposed it is necessary to ensure the endsentence is not wholly out of proportion to the overall gravity of the offending.6 TheJudge expressly referred to this principle but ultimately concluded no adjustment wasrequired to reflect totality principles because the offending occurred whilst MsRahipere was serving the sentence of home detention. The issue for present purposesis whether any further adjustment is required if the end sentence is one of 33 monthsimprisonment rather than 36 months. As I have already observed, Mr Simmondssubmits that an end sentence of no more than 23 months imprisonment on all chargeswas required to reflect the overall gravity of the offending.[23] Relevant to any assessment of the overall gravity of the offending is the factthat Ms Rahipere has now been convicted on two sets of charges reflecting heroccupation as a low-level retailer of drugs in small quantities. The offending has beenmotivated mainly by her addiction to methamphetamine. The offending does,however, have a small commercial element as is evidenced by the finding of the "tickbooks". The most serious aggravating factor is that the second set of charges reflectsdrug dealing activity that occurred very shortly after Ms Rahipere began serving asentence of home detention imposed for similar offending. That factor obviouslyrequires discrete recognition.[24] Taking those factors into account I consider the end sentence of 23 monthsimprisonment suggested by Mr Simmonds to be unrealistic. I have concluded aneffective end sentence of two years six months imprisonment on all charges is anappropriate response to the overall gravity of Ms Rahipere's offending. It representsan uplift of 12 months on the original sentence imposed on the first set of chargesbefore taking into account the credit given to Ms Rahipere for that portion of thesentence she had already served.6 Sentencing Act 2002, s 85(2).Result[25] The appeal against sentence is allowed. The sentences of 21 monthsimprisonment imposed on the charges of supplying, offering to supply and being inpossession for supply of methamphetamine are quashed. On each of those charges MsRahipere is sentenced to 15 months imprisonment. Those sentences are to be servedconcurrently with each other but cumulatively on the sentences imposed on the firstset of charges.Lang J