Tukuafu v R [2015] NZCA 251 (17 June 2015)

Last Updated: 25 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA15/2015 [2015] NZCA 251
BETWEEN	REX BARTHOLOMEW TUKUAFU Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2015
Court:	Winkelmann, Andrews and Gilbert JJ
Counsel:	J Moroney for Appellant J E L Carruthers for Respondent
Judgment:	17 June 2015 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to file the notice of appeal is granted.

2. The appeal is allowed.

100. The concurrent sentences of three years’ imprisonment on each of the three charges are quashed and replaced with concurrent sentences of two years and seven months’ imprisonment.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] Following a trial before a Judge and jury in the Auckland District Court, Mr Tukuafu was found guilty on one count each of possessing equipment, materials and precursor substances with the intention of using these to manufacture methamphetamine. Mr Tukuafu was sentenced by Judge Ronayne, the trial judge, to three years’ imprisonment on each of these charges, to be served concurrently.^[1]
[2] Mr Tukuafu applies for an extension of time to file the notice of appeal against his sentence. He has explained why his appeal was filed late. The application is not opposed and is granted.
[3] The appeal against sentence is advanced on two grounds:

• (a) The starting point adopted by the Judge of three years’ imprisonment was too high.
• (b) Credit ought to have been given for time spent in custody under a recall order.

Was the starting point too high?

[4] Mr Tukuafu and an associate fled the flat Mr Tukuafu was renting because of a fire in the kitchen. The police subsequently located materials, equipment and precursor substances used for the manufacture of methamphetamine:

• (a) Filter papers, a glass baking dish and a 500 millilitre Büchner flask.
• (b) Approximately 2.3 kilograms of caustic soda.
• (c) A 10 kilogram bucket half full of liquid containing iodine and a full 2.5 litre bottle of liquid containing iodine.
• (d) Approximately 500 millilitres of fuel lite.
• (e) Approximately 15 litres of liquid containing pseudoephedrine and other substances.
• (f) Approximately one litre of liquid containing hydrochloric acid.
• (g) Approximately 200 millilitres of acetone.

[5] The Judge found that these substances, materials and equipment were closely associated with an attempt to manufacture methamphetamine. At the time of sentencing, counsel for Mr Tukuafu accepted the Crown’s submission that a starting point of three years’ imprisonment was appropriate for this offending. Nevertheless, Mr Moroney submits that the starting point should have been in the region of two years’ imprisonment.
[6] We reject this submission. This was serious offending, towards the upper end of the scale. Having regard to the authorities to which we have been referred, including the decisions of this Court in R v Johnston^[2] and Wilson v R,^[3] we consider that the starting point was appropriate and within the range of the Judge’s sentencing discretion.

Should credit have been given for time spent in custody?

[7] Mr Tukuafu was sentenced on 1 February 2002 to an effective sentence of 12 years and six months’ imprisonment for burglary and unlawfully taking motor vehicles. The sentence expiry date was initially 29 November 2012 but was later extended to 8 May 2013.
[8] Mr Tukuafu was released on parole on 27 November 2006. He was therefore still on parole when he committed the present offending on 23 January 2012. As a result, an interim recall application was filed on 27 January 2012 and an interim recall order was made that day.
[9] Mr Tukuafu was arrested on 5 July 2012 when informations relating to the present offending were laid and he was remanded in custody. A final recall order was made on 21 September 2012. The time Mr Tukuafu spent in custody from the date of the recall application and his sentence release date counted as time served under his previous sentences of imprisonment.
[10] Mr Tukuafu’s sentence expiry date for the previous offending was extended from 29 November 2012 to 8 May 2013 to take account of the period he was at large between the date of the interim recall order in January 2012 and his arrest in July 2012.
[11] Mr Tukuafu was transferred to remand from his sentence release date of 5 February 2013. The time he spent in custody on remand from that date until the date of his sentencing will be taken into account by the Department of Corrections when calculating the various sentence dates. This occurs administratively and is not to be taken into account at sentencing.^[4]
[12] By contrast, the time Mr Tukuafu spent in custody between the date of the recall application and the date of his release from his previous sentence of imprisonment, being the period of 215 days from 5 July 2012 to 5 February 2013, will not be adjusted administratively because it is excluded from the definition of pre-sentence detention by s 91(6) of the Parole Act 2002. It is nevertheless, in effect, punishment for the present offending and allowance can properly be made for it to avoid double punishment.^[5] Counsel did not draw this issue to the Judge’s attention and this is why the Judge did not take it into account in fixing the end sentence.
[13] We are satisfied that this oversight has resulted in an end sentence that is manifestly excessive in all of the circumstances. However, we do not consider that it would be appropriate to adjust the end sentence by the total period Mr Tukuafu spent in custody subject to recall. To do so would be to ignore that the present offending occurred while Mr Tukuafu was on parole and subject to release conditions.^[6] Taking this into account, we consider that the appropriate allowance is five months rather than the full seven months. This results in an end sentence of two years and seven months’ imprisonment.

Result

[14] The application for an extension of time to file the notice of appeal is granted.
[15] The appeal is allowed. The concurrent sentences of three years’ imprisonment on each of the three charges are quashed and are replaced with concurrent sentences on each charge of two years and seven months’ imprisonment.

Solicitors:
Thode Utting, Albany for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Tukuafu DC Auckland CRI-2012-090-4685, 23 October 2014.

^[2] R v Johnston CA 448/05, 16 May 2006.

^[3] Wilson v R [2011] NZCA 197.

^[4] Sentencing Act 2002, s 82.

^[5] Oliver v R [2014] NZCA 285; Vernon v R [2010] NZCA 308.

^[6] Oliver, above n 5, at [7] and [9]; Vernon, above n 5, at [14]–[15].