Tipene v R [2014] NZCA 56 (10 March 2014)

Last Updated: 20 March 2014

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.
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REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] 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.
[2] 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

[3] 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

[4] 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

[5] 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.
[6] 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.
[7] 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 the victim’s cellphone down the toilet, he purported to leave the property. However he lay in wait in his truck. Mr Greville offered to drive the victim, who was upset, to her car. While they were reversing down the drive in Mr Greville’s car, Mr Tipene deliberately drove back up the drive at speed and into Mr Greville’s car. Mr Tipene then literally dragged the victim from the car by her hair. Afraid for both herself and Mr Greville if she resisted, the victim got into his truck.
[8] Mr Tipene told the victim he was going to take her to the beach and that it was all over for her. She was left in no doubt he intended to kill her. As the Judge said, Mr Tipene’s threats towards her were punctuated by the use of his fists. At one stage Mr Tipene stopped the truck and attempted to strangle the victim. The Judge accepted the assault in the truck was a serious assault. The victim was terrified. She undid her seatbelt in an attempt to jump out of the truck. When Mr Tipene saw that, he taunted her and deliberately sped up. The victim jumped out of the truck. She sustained a number of serious injuries as a result. Despite her injuries, Mr Tipene picked her up off the road, put her back in the truck and took her to the beach. He made the victim walk over the sand hills and then help dig a hole on the beach. This was against the background of his threat to kill her.
[9] Mr Tipene then apparently had a change of heart and took the victim back to his truck. He drove to his house where he tried to clean her up. He then took her to hospital but, while at the hospital, he did everything he could to prevent her talking to anyone to tell them what had happened.
[10] As a result of Mr Tipene’s actions, the victim was hospitalised for 36 days. Her right shoulder was fractured and dislocated. She was unable to walk unassisted for four months after leaving the hospital. She had numerous bruises to her head and face. She still suffers from headaches.
[11] Mr Watson referred to this Court’s decision in R v Wharton and submitted that a starting point of three to four years would have been appropriate for the kidnapping simpliciter. ^[2] However, given the injuries sustained by the victim in this case and the need to take account of the totality of the offending, we are satisfied the Judge was entitled to take a starting point of five years. In Solicitor-General v Nahu, which had a number of similar features, this Court accepted that a start point of six to seven years would be appropriate to reflect the totality of the offending but, as it was a Solicitor-General appeal, restricted the uplift to five years.^[3]
[12] An uplift was also required for Mr Tipene’s previous convictions which was a particularly aggravating feature. The victim had a protection order in place. Mr Tipene had seven previous breaches of protection orders, five convictions for assaults on a female, three of general assaults and one previous conviction for threatening to kill. The uplift of one year was warranted.

The threatening to kill charge

[13] We note Mr Watson’s second submission that Mr Tipene considers the sentence of five years on the charge of threatening to kill was too high. The maximum penalty is seven years. The victim clearly believed the threat to be a real and credible threat. The circumstances of the offending bear that out. Mr Watson conceded that as the sentence was imposed concurrently, it cannot affect the overall result. In the circumstances we do not propose to interfere with that aspect of the sentence.

The minimum non-parole period

[14] Finally, we are satisfied that the Judge was entitled to impose a minimum non-parole period to address the considerations to which he referred. This was serious domestic violence in circumstances where Mr Tipene has a propensity for violent offending. Such offending must be denounced and deterred. The victim and the community are entitled to protection from him.
[15] We reject the submission that consideration of Mr Tipene’s personal circumstances supports the conclusion a minimum non-parole period was not appropriate. Mr Tipene has undertaken some courses while in custody. However, the pre-sentence report records that the remorse expressed was qualified. Mr Tipene sought to minimise his offending by saying that he was not in a good frame of mind at the time and that he had safety concerns for the complainants due to their state of intoxication. That shows a lack of empathy with his victims and a concerning lack of understanding as to the degree of his culpability.

Result

[16] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Tipene DC Whangarei CRI-2011-088-1980, 9 April 2013.

^[2] R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109 (CA).

^[3] Solicitor-General v Nahu CA309/98, 28 October 1998.