Tuhiwai v R [2018] NZHC 2328 (5 September 2018)

Last Updated: 12 September 2019

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2018-488-25 [2018] NZHC 2328

BETWEEN	HORONO TUHIWAI Appellant
AND	THE QUEEN Respondent

Hearing:	3 September 2018
Counsel:	T Spencer for Appellant M Smith for Respondent
Judgment:	5 September 2018

JUDGMENT OF SIMON FRANCE J

[1] Mr Tuhiwai was sentenced on a raft of charges.¹ The process followed was:

(a) a starting point of four and a half years’ imprisonment on a charge of aggravated robbery;

(b) a six month’ uplift for a charge of supplying cannabis;

(c) a further six month uplift for possession of a cut-down pistol and ammunition; and also a dangerous driving offence;

(d) a reduction of nine months for mitigating factors;

(e) a reduction of 25 per cent for the guilty plea.

¹ R v Tuhiwai [2018] NZDC 12872.

TUHIWAI v R [2018] NZHC 2328 [5 September 2018]

[2] The Judge assessed the outcome as being three years and 11 months’ imprisonment. The appellant submits this reflects an arithmetical error at step (c). The Judge considered he had reached a total of six years’ from which deductions were then made. The correct total was five and a half years. The appellant seeks an adjustment on appeal.

[3] The Crown queries whether there has been an error but otherwise submits the sentence has not been shown to be manifestly excessive. Essentially it is argued that Mr Tuhiwai has done quite well with his existing sentence which is not manifestly excessive.

[4] I am not generally attracted to the idea of revisiting each link to assess whether more could or could not have been given. The correct approach is to focus on the sentencing as the Judge intended it.

[5] It is arguable that no mistake has been made. The relevant paragraph reads:

[27] In my view, there has to be a further uplift for the serious charge of possession of that cut-down pistol and the ammunition, but also the seriously dangerous driving that you embarked on when you were trying to escape the police that day. Again, a modest uplift in respect of those two factors would be one of six months’ imprisonment, taking you to an end sentence of six years’ imprisonment.

[6] This is capable of being read as being a 6 month uplift for each set of offending and the Judge’s total of six years’ suggest that is so. Each set of offences certainly merited an uplift as it was a very dangerous occasion of driving. However, it can also be observed that the offences are connected as the gun was found in the vehicle after Mr Tuhiwai ran off. A single uplift for both was available, so either interpretation is possible.

[7] The resolution of the appeal lies in other aspects of the Judge’s sentencing remarks. The first six month uplift for supplying cannabis was kept “to the absolute minimum” because of totality concerns. The second uplift was considered by the Judge to be “modest”. The Judge then continued:

[28] You have an appalling record of previous offending. You have offended pretty much every year since you first started appearing in the Youth Court back in 2010, and in fact in most years you have offended on multiple occasions and also you have offended in a similar way in terms of dishonesty offending, including burglary. I would have been entitled to impose a further uplift to reflect that history, but in my view, again, having reached an end sentence of six years on the aggravated robbery charge, that again would result in an end sentence which would be out of all proportion and would offend the totality principle, and therefore I fix upon a start point of six years for the aggravated robbery charge.

[8] It is plain that but for the arithmetical error (if it is one) there would have been an uplift for previous offending. In addition, the six year total the Judge thought he had reached was the product of a series of decisions, each deliberately favourable to Mr Tuhiwai to keep the total starting point to six years.

[9] In these circumstances, I agree with the Crown that any arithmetical error has not led to a miscarriage. It is apparent the Judge would have adjusted other factors that merit recognition, but did not do so in order to limit the totality to six years. The sentence imposed is the one the Judge intended.

[10] The appeal is dismissed.







Simon France J