Puna v The Queen - [2016] NZCA 455

IN THE COURT OF APPEAL OF NEW ZEALAND

CA223/2016
[2016] NZCA 455

BETWEEN	TUAKEU PUNA Appellant
AND	THE QUEEN Respondent

Hearing:	1 September 2016
Court:	Kós P, Mallon and Whata JJ
Counsel:	M Meyrick for the Appellant K Grau and S Graham for Respondent
Judgment:	23 September 2016 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Puna was convicted following trial before Judge McNaughton and a jury on charges of intentionally making an intimate visual recording,[1] attempting to make an intimate visual recording[2] and possessing an intimate visual recording.[3] He was sentenced to 20 months’ imprisonment.[4] He appeals against his conviction and sentence.

Background facts

[1]Crimes Act 1961, s 216I(2) (eight counts).

[2]Sections 216I and 72 (one count).

[3]Section 216H (17 counts).

[4]R v Puna [2016] NZDC 8659.

On 20 February 2015 a woman caught a man using his mobile phone to film underneath her dress at a store in Auckland. She alerted the staff who followed the man out of the store. He was seen leaving in a blue Nissan van. They obtained the registration details of the van. The police were contacted and were provided with the registration number of the van and a description of the man. The police also obtained CCTV footage from the store.
The police identified Mr Puna as a possible suspect. He matched the description the police had obtained and the van was registered to a member of his family. The complainant positively identified Mr Puna pursuant to the photomontage procedure under the Evidence Act 2006. She was 100 per cent sure that Mr Puna was the man she had caught filming up her dress in the store earlier that day.
On 9 March 2015 the police observed Mr Puna driving the identified van. He was the sole occupant of the vehicle. The police stopped the vehicle. They asked for his details, including his mobile phone number. Mr Puna provided those details. He was arrested and taken back to the police station for processing. He did not have a mobile phone on him. He said he must have left it in his vehicle. Mr Puna was taken back to his vehicle. The police carried out a warrantless search of the vehicle. The police found a laptop, SD card, digital camera, three mobile phones, three external hard drives, and two USB thumb drives. The police seized these items.
One of the mobile phones was found on the driver’s side of the vehicle. The police asked Mr Puna who the phone belonged to. He said it must belong to a work colleague. They called the mobile phone number Mr Puna had earlier provided, but this phone did not ring. When they returned to the police station they discovered the phone was set to flight mode. Once flight mode was deactivated, the police called the number Mr Puna had provided again and the phone rang.
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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Puna v The Queen

Details

AGLC: Puna v The Queen [2016] NZCA 455
Case: [2016] NZCA 455
Decision Date: 23 September 2016 at 10 am

CaseChat Overview and Summary

Tuakeu Puna appealed against his conviction and sentence for making, attempting to make, and possessing an intimate visual recording. The appeal was dismissed by the Court of Appeal. The conviction appeal was based on the assertion that evidence obtained from a warrantless search of the appellant's vehicle was unlawfully obtained and inadmissible. The District Court had ruled that the search was lawful and reasonable, a decision with which the Court of Appeal agreed. The appellant was arrested for making an intimate visual recording, and there were reasonable grounds to believe that evidential material related to that offence would be found in his vehicle. The police were entitled to seize all electronic equipment found in the vehicle, as it was relevant to the investigation.

Regarding the sentence appeal, the Court of Appeal found that the starting point of 16 months' imprisonment was appropriate, considering the aggravating features of the offence. The appellant's previous offending, which was eerily similar to the present charges, justified an uplift to 20 months' imprisonment. The Court of Appeal did not agree with the appellant's submission that the starting point was too high, as the nature of the offences in this case differed from those involving child pornography. The Court of Appeal also found no error in the District Court's decision to impose a sentence of imprisonment rather than home detention, given the appellant's denial of responsibility and the need for deterrence and public protection.

Orders