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Tuese v Police [2015] NZHC 2329 (24 September 2015)

Last Updated: 30 September 2015


IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY




CRI 2015-454-19 [2015] NZHC 2329

BETWEEN
ELISE TUESE
Appellant
AND
NEW ZEALAND POLICE Respondent


Hearing:
24 September 2015
Counsel:
D J Flinn for Appellant
M J Blaschke for Respondent
Judgment:
24 September 2015




JUDGMENT OF SIMON FRANCE J (Appeal against sentence)



[1] Mr Tuese pleaded guilty to charges of burglary and assault arising from the same incident. He was sentenced to a total term of two years and one month’s imprisonment.1 Mr Tuese appeals on the basis that the sentence is manifestly excessive. If successful in that, home detention is sought.

Facts

[2] This was a somewhat inexplicable incident, fuelled no doubt by Mr Tuese’s intoxicated state. In November 2014, Mr Tuese was walking along a main residential street in Wellington at 12.30 am. Over a fence he saw a man sitting in his back yard smoking. Mr Tuese jumped the fence and immediately assaulted the man.

He punched him and then walked on into the dwelling. The victim followed him.







1 NZ Police v Tuese [2015] NZDC 15356.

TUESE v NZ POLICE [2015] NZHC 2329 [24 September 2015]

[3] Once inside Mr Tuese took two cell phones that were lying on the table. He carried on into the house, entering a bedroom. There the other occupant of the house, the first man’s father, was lying in bed. The first victim intervened but was thrown onto the bed and held down. Mr Tuese then moved to the bed and somewhat bizarrely accused the men of being “the cops”. A conversation of sorts ensued before Mr Tuese broke down, apologised and left, taking one of the phones.

[4] Mr Tuese is 22 years of age. He has numerous previous convictions. In March 2012 he was sentenced to six months’ imprisonment for burglary, and in 2011 had been sentenced to 16 months’ imprisonment for aggravated robbery. Otherwise he has seven convictions for interfering with cars, two for assault and various driving convictions.

[5] The first report after this offending was an alcohol and drug assessment in March 2015. Mr Tuese missed the first appointment, giving “various excuses why he did not attend or answer phone calls and texts”. When the interview ultimately occurred, Mr Tuese said he had no recollection of the incident. The report writer noted:

Mr Tuese presented as a healthy and quite confident young Samoan man. There were some inconsistencies in Mr Tuese’s reporting, yet he confidently gave explanations and excuses in spite of these being at times implausible.

[6] The report writer concluded Mr Tuese wanted to present a sanitised version of the offending, minimise his drinking issues and avoid responsibility for his actions while drinking. Attendance at a further alcohol and drug addiction course was recommended.

[7] A first effort at a pre-sentence report was unsuccessful. Attempts by phone and letter did not elicit a response. A home visit was successful but Mr Tuese said work commitments prevented him being interviewed. Sentencing was deferred. Subsequently a report was obtained. In it Mr Tuese accepts he has an alcohol and drug issue. He attributed this incident to unknowingly smoking cannabis “laced with another drug”, having previously been drinking.

[8] When Mr Tuese appeared in court for sentencing, a further report addressing his suitability for an electronically monitored sentence was ordered. There were again various mis-steps in this process as well. These events seem to have caused the report writer understandably not to view Mr Tuese with favour. The writer felt Mr Tuese’s alcohol issue was worsening and the proposed home detention address unsuitable. The occupant appeared to the inspector to herself be under the influence. Apparently inconsistent information from Mr Tuese was also documented.

[9] The sentencing Judge took a starting point of two years for the burglary. It was then uplifted by six months’ for two assault charges and a further three months for past offending. The Judge declined any credit for remorse and commitment to change. Eight months’ credit for the guilty plea was the only deduction, leaving a final sentence of two years and one month’s imprisonment.

Appeal

[10] Mr Flinn submits the sentence is manifestly excessive, an outcome that has been influenced by factual errors. In particular there was only one assault charge, not two as the Judge believed.2 He also submits the Judge erred in imposing a cumulative sentence for the assault, having earlier indicated it would be concurrent.3

Finally it is submitted the starting point for burglary already captures the prior offending and so that uplift is double counting.

[11] In relation to the starting point itself, it is submitted the two year figure is at least stern for a second burglary, and that the nine months’ imprisonment added on top takes the figure outside the available range. It is also submitted the Judge erred in declining to give Mr Tuese credit for his remorse and willingness to engage in

restorative justice.








  1. The Judge does incorrectly refer to two charges. However, the summary of facts clearly discloses two separate assaults, albeit resulting in one charge. It is not an error of significance.
  2. This is, in my view, just mis-statement of the type that arises in oral decisions. The issue remains the correctness of the overall outcome.

Decision

[12] One must put aside that this offending was undoubtedly the product, in part, of Mr Tuese’s intoxicated drug affected state.4 When that is done, this can only be assessed, as the Judge did, as a serious burglary. It commenced with a gratuitous assault on a man sitting in his back yard, and then discloses an alarming sense of entitlement and disregard for people’s sense of safety in their own homes. It risked escalating conflict, and even when apparently remorseful, Mr Tuese still took the

phone. These events represent a quite different type of burglary from the norm, and one which required being assessed on its own facts.

[13] The serious features are the entry into a private residence at night, the fact that the entry was facilitated by an initial assault, the confrontation with the two victims and the willingness of Mr Tuese to just stroll through the house and into the bedroom without any regard to the privacy and security of the homeowners whom he knew to be present. I do not consider a two year starting point, whilst firm, to be

outside the available range.5

[14] I do accept, however, that a further nine months’ on top of the two years’ is excessive. In assessing what uplift there should be, one needs to put aside the features that have already informed the starting point for burglary. That done, what is left of the incident itself is a relatively minor assault. Other than that there is the issue of Mr Tuese’s previous offending. This did not inform the two year starting point for burglary, so was a matter that could be factored in at this uplift stage without representing double counting. However, the past offending record does not merit a significant increase. In my assessment anything more than a further three months’ imprisonment produces a starting point that is excessive for the total offending.

[15] Like the Judge, I do not accept any discount for remorse or an improved attitude was required. Mr Tuese needs to understand that one displays these things

by action not words. The history I described earlier of his interactions with the

4 Sentencing Act 2002, s 9(3).

5 Mr Flinn referred me to Taylor v Police HC Auckland CRI-2009-416-22, 14 September 2009.

Whilst also involving burglary and assault, the underlying burglary was of commercial premises. I do not consider it assists in this context.

various agencies seeking to provide the Court with information is evidence of a defendant who lacks insight and commitment to rehabilitation. The Judge was correct to discount the sentence only by reference to the guilty plea.

[16] Applying the same discount as the District Court, the final overall sentence will be 20 months’ imprisonment.

[17] I do not consider home detention is appropriate. There is presently no suitable address but more importantly it would run counter to a strong need for individual deterrence. Mr Tuese does not display by his actions that he is committed to change or to addressing his alcohol problem. His attitude generally suggests a lack of concern about his actions and a sentence of home detention would just reinforce that lack of realisation.

[18] The appeal is allowed. The sentence on burglary (CRN 14085005124) is reduced to 20 months’ imprisonment. The sentence on assault (CRN 14085005125) is reduced to three months’ imprisonment. The sentences are to be served

concurrently.











Simon France J

Solicitors:

D Flinn, Barrister, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North


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