Tuipulotu v Police [2012] NZHC 1246 (7 June 2012)

Last Updated: 22 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-139
CRI-2012-404-138 [2012] NZHC 1246

SIALE UVEA TUIPULOTU

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 5 June 2012

Counsel: G Vear for Appellant

F Nizam for Respondent

Judgment: 7 June 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 7 June 2012 at

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

G Vear, Public Defence Service, Henderson: [e-mail]

F Nizan, Meredith Connell, Auckland: [e-mail]

TUIPULOTU V NEW ZEALAND POLICE HC AK CRI-2012-404-139 [7 June 2012]

[1] Siale Uvea Tuipulotu has appealed against a sentence of 12 months’ imprisonment imposed in relation to two charges of using a credit card to obtain a pecuniary advantage; a sentence of three months’ imprisonment in relation to one charge of receiving stolen property; and a sentence of one month’s imprisonment in relation to one charge of possession of methamphetamine. The sentences were imposed by Judge Gibson on 24 April 2012 and were to be served concurrently with each other and with a sentence of imprisonment being served by the appellant at the time of his sentencing.

[2] On 30 November 2011, Judge Wilson QC had sentenced the appellant to

18 months’ imprisonment on charges of unlawful possession of a pistol, possession of pipes for smoking methamphetamine, theft, and breaches of release conditions.

[3] The grounds of appeal are, first, that Judge Gibson failed to acknowledge and apply the totality principle in approaching the sentencing for offending which had occurred prior to the sentencing by Judge Wilson QC. Ms Vear argues that a total effective end sentence (for all eight charges), which she calculates to be one of two years three months’ imprisonment, was excessive bearing in mind the nature of the offending.

[4] As a second ground, it is argued that, because Judge Wilson QC and Judge Gibson both applied four month uplifts for the prior offending by the appellant, the actual uplift was some eight months’ imprisonment which was in the circumstances excessive.

[5] For the respondent, Ms Nizam argues that although Judge Gibson did not expressly refer to the totality principle in his sentencing notes, that omission may be excused bearing in mind the pressures on a District Court Judge in a busy sentencing list. She argues that the Court should infer from the Judge’s reference to the earlier, November 2011, sentencing that he in fact applied a totality approach. In any event, Ms Nizam submits that the Court should look at the result rather than the method by which it was reached. Further, she argues that the uplifts imposed were principled and appropriate in the circumstances.

Discussion

[6] I agree with counsel that the way in which the sentencing of the appellant in April this year should have been approached was for Judge Gibson to have, in a sense, put himself in the shoes of Judge Wilson QC in November 2011 as if that Judge had been sentencing the appellant for all of the offending which had occurred to that date.

[7] I take that approach in assessing whether the overall period of imprisonment which resulted from the sentences imposed in November 2011 and April 2012 respectively was manifestly excessive in all the circumstances.

[8] At the time he was sentenced by Judge Wilson QC, the appellant was

30 years eight months old and he had a lengthy history of previous convictions beginning, apart from Transport Act offending, in 2001. The frequency of the offending and the seriousness of the charges increased in late 2009/early 2010. In September 2010, the appellant was sentenced to eight months’ imprisonment on charges which included unlawfully carrying an imitation firearm and dishonesty offences. Then, in April 2011, he was sentenced to nine months’ imprisonment for further dishonesty offences, procuring or possessing methamphetamine, unlawfully taking a motor vehicle, failing to stop for the Police, and resisting Police. The appellant had only just been released from that sentence when he re-offended in July 2011 and again in August 2011 on the charges for which he was sentenced by Judge Wilson QC on 30 November last year.

[9] The offending for which he was sentenced by Judge Gibson in April this year also occurred in July 2011, but included one offence in September 2011 (possession of methamphetamine) for which he was remanded in custody and on which he was remanded when sentenced by Judge Wilson QC.

[10] Applying a totality approach, a judge sentencing the appellant in November 2011 would have been bound to take into account not only the lengthy history of previous offending of a similar kind, but also the fact that the appellant

had failed to respond positively to sentences of eight months’ imprisonment and nine months’ imprisonment imposed respectively in September 2010 and April 2011.

[11] A judge would also have taken into account the seriousness of the offending charged, as reflected by the maximum penalties to which the appellant was liable. The aggregate maximum penalty, in this case, was in excess of 20 years’ imprisonment. Bearing that in mind, the July 2011 and September 2011 offending was sufficiently serious in its nature and totality to have justified a starting point of two years’ imprisonment.

[12] An uplift of at least six months’ imprisonment would also have been appropriate to reflect the appellant’s previous convictions. The following observations of the Court of Appeal in R v Casey,[1] though of some vintage, are apposite and remain applicable:

It is necessary to take ... [previous convictions] into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character. Further, the previous convictions may indicate a prediliction [sic] to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[13] A similar approach was taken by the Court of Appeal in R v Howe.[2] That approach is now mandated in s 9(1)(j) of the Sentencing Act 2002. The Court of Appeal in R v Rautahi[3] explained that s 9(1)(j) reflects the longstanding principle articulated in Casey and that the Court was required to balance the need for deterrence and prevention against the risk of punishing the offender again for earlier offending.

[14] From a starting point of around 30 months’ imprisonment it would have been appropriate to then apply a discount of approximately eight months’ imprisonment to reflect the appellant’s guilty pleas (although not all of the pleas were entered at the

_{earliest opportunity) and his additional remorse. That would produce an end}

sentence of 22 months’ imprisonment which was at the top end of the range

suggested by Ms Vear.

[15] In estimating that the total effective end sentence imposed on the appellant was one of two years three months’ imprisonment, Ms Vear looked at the effect of the Parole Act 2002 in producing what would have been the appellant’s release date. She points out that the effect of the sentence imposed by Judge Gibson on

24 April 2012 is that the appellant’s release date will be 24 October 2012, applying s 86(1) of the Parole Act 2002, less time served on the methamphetamine offence committed on 9 September 2011. If the appellant had been sentenced to 22 months’ imprisonment on 30 November 2011, however, his release date, applying s 86(1), would have been 30 October 2012, less time served.

[16] Looking at the matter in that way, I do not think it can be said that the approach taken by Judge Gibson, in light of the sentences imposed by Judge Wilson QC, produced an outcome which was manifestly excessive.

[17] The appeal is dismissed.

...............................................

Toogood J

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[1] _{R v Casey [1931] NZLR 594, 597.}
[2] _{R v Howe [1982] 1 NZLR 618.}
[3] R v Rautahi [2011] NZCA 351 at [28].