Tuifua v Police [2015] NZHC 2426 (6 October 2015)

Last Updated: 9 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000213 [2015] NZHC 2426

BETWEEN	ISALELI TUIFUA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 September 2015
Counsel:	P Pati for Appellant N Dobbs for Respondent
Judgment:	6 October 2015

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Tuesday, 6 October 2015 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Manukau.

Crown Solicitor, Manukau.

TUIFUA v NZ POLICE [2015] NZHC 2426 [6 October 2015]

Introduction

[1] The appellant Isaleli Tuifua is a young man who has got into a lot of trouble through repeated criminal behaviour. On 21 July 2015 having pleaded guilty he was sentenced by Judge B A Gibson to two and a half years’ imprisonment on burglary, theft and driving charges. He now appeals.

Background

[2] The charges relate to offending between 18 April 2014 and 22 January 2015. There are 12 charges in total: unlawfully taking a motor vehicle (x 2), unlawfully getting into a motor vehicle (x 4), burglary (x 2), failing to stop for red and blue flashing lights (x 2), driving a vehicle in a dangerous manner, and operating a motor vehicle recklessly.

[3] Mr Tuifua turned 17 on 18 April 2014. The first offence occurred on that date. Mr Tuifua was in a stolen vehicle in Mangere. The vehicle was chased by Police before having a head-on collision on an on-ramp to the south-western motorway with an elderly driver. One conviction of unlawfully getting into a motor vehicle, one conviction of failing to stop and one conviction for reckless driving arose. The maximum sentences available were two years’ imprisonment for unlawfully getting into a motor vehicle, a fine of $10,000 for failing to stop, and three months’ imprisonment for operating a motor vehicle recklessly.

[4] On the second occasion on 27 May 2014 he failed to answer District Court bail at the District Court. Looking at bail breaches as a whole, between 30 May

2014 and 22 January 2015 he was arrested for breaching his bail conditions five times. Two of the breaches were accepted. It is unclear whether the other breaches were accepted or proven.

[5] On the third occasion on 1 September 2014 Mr Tuifua unlawfully got into a stolen Mazda vehicle. When he was in the vehicle he was approached by the Police. He drove the vehicle away from the Police and started speeding through city streets. He was travelling on occasions at about 100 kilometres per hour and defying the red and blue flashing lights and sirens. He went through a number of red lights at speed.

He stopped the vehicle at a kerb at an intersection causing damage to the left front wheel and bumper. He was charged with unlawfully getting into a motor vehicle, failing to stop for red and blue flashing lights and reckless driving.

[6] The fourth action which led to a conviction was Mr Tuifua’s participation in a burglary on 9 September 2014. He and one other co-offender had been looking for houses to burgle. They found a house with an open window in Cape Horn Road. They reached into the house and unlatched a ranch slider door and entered the house. They took a 50 inch Panasonic and a 40 inch Samsung flat screen televisions, an HP laptop, an Acer laptop, a Samsung Mini Galaxy cellphone and a set of gold cufflinks and tie clips.

[7] The fifth and most serious group of charges related to his conduct on

22 January 2015. Mr Tuifua had participated in the stealing of a Nissan motor vehicle worth approximately $10,000. Later that day he participated in the stealing of a Mazda motor vehicle with a value of approximately $6,000. With three others he then travelled in both vehicles to the Super Liquor Hilltop store on the Hibiscus Coast. The Nissan vehicle was used to ram through the front doors of the store, damaging the doors and giving the occupants of the stolen car access to the store. The Mazda vehicle was left outside as the getaway vehicle.

[8] Mr Tuifua and his co-offenders entered the store through the smashed doors and uplifted various liquor spirit bottles and numerous packets of cigarettes and loose tobacco. These were all placed into the Mazda motor vehicle and it was then driven off. Shortly thereafter that vehicle was sighted by the Police who followed the car showing red and blue lights and siren. The car travelled away at speeds accelerating to over 100 kilometres per hour in a residential area in breach of various speed limits, ultimately reaching speeds of 130–160 kilometres per hour and overtaking a truck on the harbour bridge.

[9] After crossing the harbour bridge they then continued to speed through Auckland city, proceeding ultimately onto Fanshawe Street into the Herne Bay region. At times their speeds reached 130 kilometres per hour. They went over a tyre deflation device placed by the Police in Jervois Road, travelling at speeds of up

to 130 kilometres per hour. The rubber tyres quickly disintegrated and the aluminium rims were bare causing sparks and smoke on the road. The occupants continued to drive at excessive speeds until the Police vehicles abandoned the chase because of the offenders’ erratic driving.

[10] Ultimately, the occupants exited the vehicle in Grafton Road and decamped on foot where they were apprehended by a Police dog unit. Both stolen vehicles had their ignition barrels pulled out. Reparation was sought for the two stolen vehicles and extensive damage to the Super Liquor store.

[11] The charges arising from this fifth type of offending were unlawfully taking a motor vehicle, which carries a seven years’ imprisonment maximum sentence; failing to stop and dangerous driving.

[12] The appellant ultimately pleaded guilty to all the charges. He was sentenced on 21 July 2015.

The decision

[13] Judge B A Gibson in the Manukau District Court described the offending as serious and the burglary as very serious. He thought that the lead offence was the burglary of the dwelling house on 9 September 2014. He considered that a starting point of two and a half years was appropriate for that offending. He considered the other burglary charge and fixed an end starting point of four years noting that he could well have justified a higher starting point “... had I wished to, and the only

reason I have not taken a higher starting point is because of your relative youth...”.¹

[14] The Judge then applied what he considered a significant discount of 20 per cent for Mr Tuifua’s youth, balancing that he was old enough to know right from wrong with the fact that he may have been encouraged and was with all the offenders in a group. Following that he discounted the end sentence by what he considered a

_{very generous 20 per cent for Mr Tuifua’s guilty pleas.}

¹ Police v Tuifua [2015] NZDC 14035 at [5].

[15] The end result was a sentence of two years and six months’ imprisonment. The Judge directed that Mr Tuifua be kept apart from adult offenders.

Grounds of appeal

[16] Mr Pati for Mr Tuifua submits:

(a) The starting point was too high for the residential burglary charge. It is submitted the lead offending should have been the commercial “ram raid” burglary charge.

(b) Judge Gibson failed to discount the sentence to reflect the time spent on electronically monitored bail and restrictive bail conditions.

(c) The end sentence was manifestly excessive. It is submitted that Judge Gibson focused on punitive purposes and principles without due consideration to attempts to rehabilitate. The least restrictive outcome should have been home detention coupled with a significant amount of community work and supervision.

[17] No issue is said to be taken with the discounts given for guilty plea and youth in the written submissions, but counsel also submitted that the end sentence is manifestly excessive having regard to Mr Tuifua’s youth, so it would appear some objection is taken to this discount.

[18] In the end Mr Pati in an eloquent submission urged me to stand back and impose the least restrictive sentence, which he proposed was home detention. He pointed to the fact that the probation reports had recommended home detention, and that an approved address was available at his mother’s home. He submitted that a combination of a higher discount for youth and a discount for Mr Tuifua being on electronic bail with a 24 hour curfew for four and a half months meant the starting point of around two years could be reached, on that basis home detention was the appropriate sentence. He pointed to the grave risk that in prison Mr Tuifua would fall under undesirable influences and have little chance of rehabilitation.

Approach to the appeal

[19] Section 250 of the Criminal Procedure Act 2011 states that an appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.² The Court approaches sentence appeals in a similar manner to that taken under the Summary Proceedings Act 1957, namely:³

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[20] The Court will not intervene in circumstances where the end sentence is within the acceptable range having regard to the principles and purposes of the Sentencing Act 2002.⁴ The focus is on the total sentence and the overall criminality reflected in that sentence.⁵

The starting point

[21] There are a number of leading cases that provide guidance for sentencing offenders for burglary, including Senior v Police,⁶ and the Court of Appeal’s decision relied on by Mr Pati of Arahanga v R.⁷ The Court there observed:⁸

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due

² _{Criminal Procedure Act 2011, s 250(3).}

³ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140]; Tutakangahau v R [2014] NZCA 279.}

⁴ _{Ripia v R [2011] NZCA 101 at [15].}

⁵ _{Turner v R [2014] NZCA 454 at [7].}

⁶ _{Senior v Police (2000) 18 CRNZ 340 (HC).}

⁷ _{Arahanga v R [2012] NZCA 480.}

⁸ At [78]–[79] (footnotes omitted).

to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

There were a number of aggravating features that accentuated the gravity of the burglaries in the present case and that brought the offending within the more serious end of the scale: there were two dwelling house burglaries; the burglaries occurred in the early hours of the morning; there were two burglars, so there was a heightened risk of violence; one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; and, as the Crown points out, the burglaries involved the taking of high value items from the houses.

[22] I was referred to a considerable range of other cases involving a single residential burglary.⁹ Sentences ranged from as low as 15 months for a simple residential burglary not involving any confrontation with occupants, to as high as two years and three months.

[23] In my view the starting point of two and a half years’ imprisonment the Judge reached for what he regarded as the lead offence, the residential burglary on

1 September 2014, was too high. The appropriate starting point should have been approximately 18 months’ imprisonment. I reach this decision by reference to the authorities that I have referred to, and in particular the fact that the premeditation for the offending was limited, it was a daylight entry, there were no occupants, and there was something close to complete recovery of the stolen items. However, I do note that the element of premeditation and the presence of another offender take it above the least serious category.

[24] I consider that the more serious burglary was the ram raid on the liquor shop. That involved considerable planning, given that two vehicles appear to have been deliberately stolen and one chosen as the getaway car and the other as the ram car. The premises were presumably specifically targeted and they undoubtedly suffered considerable damage as a consequence of the ramming. Although it was closed, there was the possibility of injuring an occupant. A considerable amount of liquor was taken, although I have not been provided with an estimate of value. It is not

_{clear how much was recovered.}

⁹ Peters v R [2011] NZCA 334, R v Inia [2015] NZHC 873, Nicol v Police [2013] NZHC 3326, Potini v Police [2015] NZHC 1517, Newton v Police [2012] NZHC 2829 and Curry v R [2010] NZCA 491.

[25] The appropriate starting point for such deliberate and brazen offending would have been approximately two years and three months’ imprisonment.

[26] The Judge and Mr Pati in his submissions did not focus on the other offending. However, it cannot be ignored in assessing the starting point, and indeed must be considered.

[27] Two motor vehicles were unlawfully taken by Mr Tuifua, and he unlawfully got into four others. At least two of the cars were extensively damaged. There was at least one victim impact statement referred to by Judge Gibson showing that predictably the innocent owner suffered grave inconvenience and distress as a consequence of his uninsured vehicle being severely damaged.

[28] The maximum penalty on each occasion of unlawful taking was seven years’ imprisonment, and for unlawful getting into, two years. The taking and getting into charges were separate in time, and cannot be seen as part of a single spree. In my view an uplift to the starting point of at least nine months’ imprisonment was appropriate for these five offences in the round.

[29] There were two occasions of reckless or dangerous driving. On one occasion there was an accident which caused injury to an innocent driver. The driving was dangerous in the extreme and there was a real prospect that an innocent driver could have been severely injured or killed. An uplift of three months’ imprisonment for the dangerous driving was appropriate.

[30] Then there was conviction for the breach of bail, coupled with Mr Tuifua’s

extraordinary lack of regard for bail restrictions. All of the offending after 18 April

2014 took place while he was on bail. This was over approximate 10 month timeframe. While offending while on bail can be seen as a personal aggravating factor, given that it is linked to the conviction for breach of bail, I will take into account breach of bail at this point. In my view a three month uplift was appropriate for this.

[31] Thus before any consideration of personal mitigating factors, a starting point

of five years’ imprisonment is reached.

[32] The totality principle must be applied. Before considering mitigating factors such as youth, I consider that totality alone requires a reduction to avoid an unduly crushing sentence, to four years and three months’ imprisonment. I make this assessment on the basis that Mr Tuifua, while an active participant, has not been shown to have either been a leader or a follower in the group. There is simply not enough material in the summary of facts to make such an assessment, and I note that the Judge did not do so.

[33] I have therefore reached a starting point that is higher than that of Judge Gibson, even though I do not consider he was correct in giving such a high starting point to the residential burglary. As I have set out, I consider the Judge should have given specific weight to the other offending when assessing the starting point. The Judge also appears to have taken into account Mr Tuifua’s youth when he determined that starting point. That was a matter that should have been put to one side entirely in relation to fixing the starting point, and considered only when personal mitigating factors were assessed.

Personal factors

[34] There are no aggravating factors, save for the offending while on bail, which

I have already referred to and taken into account.

[35] The pre-sentence reports recommend home detention. He has criminal associations and is assessed in the reports as being at medium risk of re-offending and low risk of harm to others. It is noted that despite all his offending while on bail, since he has been on EM bail following his appearance in February 2015, he has not breached bail. Mr Tuifua has no income. He could benefit from the Mauri Toa Rangatahi programme, which is available both in the community and in prison. It is reported that Mr Tuifua showed no remorse. Mr Tuifua lacks insight into the potential dangers his offending could have on the community. He was confident that there was no danger to pedestrians or oncoming cars when fleeing the Police. Alcohol was not a factor in his offending.

[36] Mr Pati’s submissions focused on the appropriate discounts for Mr Tuifua’s

youth, guilty pleas, and time spent on EM bail.

[37] Mr Tuifua was on EM bail for approximately four and a half months. Although an alleged breach has been mentioned, it has not been proven and I will assume he has abided by the conditions of EM bail. Mr Pati argues for a significant discount off the end sentence to take into account that EM bail, which involved a

24-hour curfew, save for permitted excursions.

[38] Determining the discount (if any) for EM bail as a mitigating factor is discretionary and is to be exercised in accordance with the guidance set out in s 9(3A) of the Sentencing Act. There is no particular pattern in the amount of credit given for restrictive terms of bail.¹⁰ In this case, even if a discount was allowed, as Mr Pati acknowledged in his written submissions it would be no more than a two month deduction given that EM bail cannot be equated to time in prison. Even if the Judge had taken into account a deduction for EM bail, the end sentence imposed would still in my view have been within range, given the generosity of aspects of the

sentencing process in particular in relation to the starting point and the guilty pleas.

[39] It has been proven in the Youth Court in 2014 that Mr Tuifua committed an aggravated robbery, unlawfully interfered with a motor vehicle, received property and on three occasions unlawfully got into a motor vehicle, and on two occasions possessed instruments for conversion. He was sentenced to six months supervision and 100 hours community work. On a separate occasion on 14 October 2014 it was proven that he had received property, although he was discharged.

[40] Although Youth Court notations are not convictions, they can still be taken into account as an aggravating factor under s 9(4)(a) of the Sentencing Act.¹¹

Although I do not propose to uplift the sentence, Mr Tuifua’s notations disentitle him from being treated as a first time offender.¹² Certainly there was no basis for any discount for good character, and there was no evidence before the Court suggesting

_{he was remorseful or had taken steps to rehabilitate.}

¹⁰ _{O’Connor v R [2014] NZCA 328 at [43].}

¹¹ _{R v Rongonui [2009] NZCA 279 at [88].}

¹² Vaeau v Police [2015] NZHC 1972 at [55].

[41] His youth speaks for itself. He was 17 at the time of this offending and is now 18. He is entitled to a discount for this. His offending certainly shows all the symptoms of gross youthful foolishness. The Judge allowed 20 per cent. Mr Pati says this was too low, and that 30 per cent would have been more appropriate.

[42] I consider that 20 per cent was conservative and not out of the range, but for the purposes of assessing Mr Pati’s submission I will assume a 25 per cent discount for youth. Applying such a 25 per cent discount to the starting point of four years and three months that I have reached, I come to an end figure close to that reached by the Judge of three years, two months’ imprisonment. The Judge’s figure was three years and three months’ imprisonment.

[43] The Judge gave a discount of 20 per cent for guilty pleas. The position was complex in relation to those guilty pleas, with them being given at different times. It is my general assessment that the Judge was right when he described the discount he gave as generous. If that 20 per cent discount is applied, the end sentence is a little over two years and six months’ imprisonment, the same sentence reached by the Judge.

Overview

[44] Thus carrying out my own assessment, which is somewhat different from the Judge’s assessment, I reach an end figure which is much the same as his. I stand back and consider Mr Pati’s submission that the Court should impose the least restrictive outcome on Mr Tuifua.

[45] While I accept that principle, I am driven to the conclusion that Mr Pati understates the gravity of Mr Tuifua’s offending. When looked at in the round, over a period of 10 months Mr Tuifua was involved in serious and deliberate criminal acts that caused considerable damage to our community. As I have said, he and the community are fortunate that damage was not much worse. His repeated offending while on bail, and the fact that he carried out this offending within months of his earlier Youth Court convictions, require particular denunciation and deterrence.

[46] While a low sentence of imprisonment that is within the range can be chosen for the purposes of a sentencing exercise if home detention is the obvious correct outcome,¹³ that is simply not an option available in this case. A sentence of two years’ imprisonment or less would be entirely out of the range, and would be a misuse of the sentencing process.

Result

[47] The appeal is dismissed.

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

_{Asher J}

¹³ Galloway v R [2015] NZHC 1026.