Tuffey v Police [2014] NZHC 591 (27 March 2014)

Last Updated: 2 May 2014

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-000001
CRI-2014-470-000002

CRI-2014-470-000003 [2014] NZHC 591

BETWEEN MARC TUFFEY Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 March 2014

Appearances: D McWilliam for Appellant

R Jensen for Respondent

Judgment: 27 March 2014

_{ORAL JUDGMENT OF VENNING J}

Solicitors: Crown Solicitor, Tauranga

Public Defence Service, Tauranga

TUFFEY v NZ POLICE [2014] NZHC 591 [27 March 2014]

Introduction

[1] On 16 January 2014 in the District Court at Tauranga Judge Ingram sentenced Marc Tuffey to imprisonment for three years, nine months.¹ The sentence was imposed in relation to several offences: burglary, unlawfully getting into a motor vehicle, receiving and intentional damage.

The sentence

[2] The sentence was structured in the following way. In relation to the burglary the Judge took a start point of three years, then uplifted that for Mr Tuffey’s personal aggravating factors by nine months, before applying a credit of 11 months for the guilty plea. That produced a sentence of two years, 10 months for the burglary. The Judge then imposed a concurrent sentence of nine months for the charge of unlawfully getting into a motor vehicle as the offending occurred around the same time as the burglary and the vehicle appears to have been used in the course of the burglary.

[3] The burglary and unlawfully getting into offences occurred on 4 and 5

September 2013. The Judge then addressed the sentence for the receiving offences, which occurred between 1 and 7 October 2013. Mr Tuffey had previously sought a sentence indication in relation to the three charges of receiving. On 6 November

2013 Judge Ruth in the District Court at Hamilton had given a sentence indication, taking into account guilty pleas, of 11 months’ imprisonment. Judge Ingram felt constrained to accept and apply that sentence for the receiving charges but imposed that sentence of 11 months cumulatively bearing in mind the offending was of a different nature and occurred in completely different circumstances. The end result was the sentence of three years, nine months’ imprisonment.

The appeal

[4] Mr Tuffey appeals that sentence. Mr McWilliam confirmed that the appeal is directed solely at the sentence imposed for the burglary offending and the effect that

_{it had on the ultimate end sentence. He accepts that the sentence of 11 months for}

¹ NZ Police v Tuffey DC Tauranga CRI-2013-019-005452, CRI-2013-019-5236; CRI-2013-070-

3924, 16 January 2013.

the receiving charges cannot be challenged and nor can the fact the Judge treated that offending as requiring a cumulative sentence.

[5] Mr McWilliam submits that, given the circumstances of this burglary a starting point of no more than two years was warranted and that even taking account of Mr Tuffey’s personal circumstances and previous history the uplift should have been no more than six months. He submitted the Judge effectively double counted by taking a starting point of three years and uplifting that by nine months for Mr Tuffey’s previous offending, particularly his burglary offending.

[6] Mr Jensen effectively accepted that there may have been an element of double counting in the way the Judge approached the matter but submitted that the end sentence for the burglary could be supported by reference to the decisions of R v Southon and Walker v NZ Police.²

Decision

[7] This Court and the Court of Appeal has said on a number of occasions that the application of Senior v Police³ and the imposition of sentences for recidivist burglars can create problems where the Court then goes on to uplift a starting point by reference to the offender’s previous convictions. It is sufficient to refer to the Court of Appeal decision of Ibell v The Queen in October last year where the Court stated that:⁴

We accept, as a matter of principle, that it would not be correct to adopt a starting point for burglary offending which is based on the offender being a recidivist burglar (that is, in the Senior category 2) and then to uplift the starting point to take account of those burglary convictions. ...

[8] The matter can be tested in the present case by the application of the R v Taueki⁵ approach by having regard to the sentence that would be warranted from the offending itself and then taking into account the personal circumstances of the

_offender.

² R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 and Walker v NZ Police HC New Plymouth CRI-2007-433-

_{17, 12 December 2007.}

³ _{Senior v Police (2000) 18 CRNZ 340 (HC).}

⁴ _{Ibell v The Queen [2013] NZCA 514 at [13].}

⁵ R v Taueki [2005] 3 NZLR 372.

[9] In the present case the background to the burglary offending is as follows. Mr Tuffey and his associate went to the address of the associate’s father’s property. The father was overseas at the time. They spoke to an occupier at the property and asked for some diesel from a large tank on the property. That request was refused. Sometime later Mr Tuffey and his co-accused uplifted a pair of bolt cutters and returned that evening to the address. They used the bolt cutters to break open a padlock to a shed on the property. They stole a large quantity of diesel from a truck parked near the shed. They then took a large number of tools and two motorbikes, a two wheel Husqvarna trail race bike and a four wheel Yamaha Banshee. The total value of the property stolen was about $40,000. They loaded it onto the car they had previously unlawfully got into and left.

[10] I accept the submission by Mr McWilliam that the offending lacks the particularly aggravating features that have been identified by Courts in the past of burglaries of residential properties at night. Such burglaries carry with them the risk of confrontation with the occupiers. This was a burglary of a shed with no suggestion of any confrontation with security guard or anything of that kind.

[11] Mr Jensen accepted this was not a residential burglary but referred to the decision of Walker where this Court took a starting point of four years for a burglary involving the theft of copper of a much lesser value than was taken in the present case. However, as Mr McWilliam submitted, there are a number of other authorities referred to where in relation to burglaries of commercial as opposed to residential properties the Court has adopted starting points significantly less than that. I note that in Walker the Judge was faced with a sentence imposed in the District Court

with an initial starting point of six years.⁶

[12] Each case must be determined on its own facts. In the present case, in my assessment, having regard to the circumstances of the offending, and the value of the property taken, without taking account of Mr Tuffey’s personal circumstances, would not have warranted a starting point of anything more than two years, six months.

_{There then must be an uplift however for Mr Tuffey’s personal circumstances. He}

⁶ Matika v Police [2013] NZHC 2806; Blisset v Police [2013] NZHC 156; and Arahanga v R

[2010] NZCA 480.

has eight previous convictions for burglary. Even accepting Mr McWilliams’ submissions that most of those are historical, there was one in 2012 and I note this offending occurred at a time when Mr Tuffey was subject to an existing sentence. In those circumstances an uplift of at least six months would be warranted leading to a sentence for the burglary of at least three years’ imprisonment.

[13] The Judge applied a reduction of 25 per cent for the guilty plea. It may be that might be regarded as unduly generous in the circumstances but even applying a discount of between 20 and 25 per cent leads to an end sentence for the burglary of a sentence in the region of 28 months, or two years, four months’ imprisonment. When the sentence of 11 months cumulative is added to that, that leaves an end sentence of 39 months or three years, three months’ imprisonment.

[14] When I have regard to the sentence imposed by the Judge of three years, nine months’ imprisonment the difference between that and the three years, three months that I have arrived at, is substantial enough to lead to the conclusion that the sentence of three years, nine months was in the circumstances manifestly excessive. It has come about because of the approach the Judge took in effectively double counting the personal circumstances of the appellant and his past history.

[15] For those reasons the appeal is allowed. The sentence of two years, 10 months’ imprisonment for the burglary is quashed. It is replaced with a sentence of two years, four months. The sentence of nine months concurrent for unlawfully getting into stands and the sentence of 11 months on the receiving charges, which is cumulative, also stands, so that the end result is a total sentence of three years, three

_{months’ imprisonment.}

Venning J