R v Cecil aka Tuaeu - [2013] NZHC 1384

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-9993 [2013] NZHC 1384

THE QUEEN

v

JUNIOR CECIL (aka Ngatuakana TUAEU) BOZAMAE CECIL
NGALAM FETULEAI

Hearing: 11 June 2013

Appearances: M Galler and N R Webby for Crown
T J Darby for J Cecil
W McNicol for B Cecil
T Spencer for N Fetuleai

Sentence: 11 June 2013

SENTENCING REMARKS OF LANG J

R v JUNIOR CECIL (aka Ngatuakana TUAEU) BOZAMAE CECIL NGALAM FETUEAI [2013] NZHC 1384 [11 June 2013]

[1] Mr Junior Cecil, you have pleaded guilty to one charge of participation in an organised criminal group, seven charges of burglary, two charges of converting motor vehicles and one charge of obstructing the course of justice.

[2] Mr Bozamae Cecil, you have pleaded guilty to one charge of participation in an organised criminal group, six charges of burglary, two charges of theft of a motor vehicle, one charge of arson and one charge of obstructing the course of justice.

[3] Mr Ngalam Fetuleai, you have pleaded guilty to one charge of participation in an organised criminal group, eight charges of burglary, three charges of theft of a motor vehicle, one charge of arson and one charge of obstructing the course of justice.

[4] The burglary charges and those relating to participation in an organised criminal group each carry a maximum sentence of ten years imprisonment. The charges of theft and conversion of motor vehicles each carry maximum sentences of seven years imprisonment, as does the charge of obstructing the course of justice. The arson charge, to which Mr Bozamae Ceil and Mr Fetuleai have pleaded guilty, carries a maximum charge of 14 years imprisonment.

Background

[5] The offending to which you have pleaded guilty arises in three separate ways. Most of the burglary charges and, indeed, all of the charges other than that of obstructing the course of justice, arise out of what I consider to be a series of interconnected events that took place between June and December 2011. During that period, as your pleas make clear, you were party to an organised criminal enterprise under which motor vehicles were stolen in anticipation of being used in burglaries of commercial premises. The motor vehicles were then used in the early hours of the morning to smash into commercial premises. You then removed, or endeavoured to remove, ATM machines from those premises or, in one case, a safe. In situations where you were able to, you removed the ATMs from the scene, opened them at your leisure and removed the contents.

[6] I do not propose to set out all of the individual incidents that gave rise to these charges. My sentencing remarks will contain a schedule1 setting out the individual charges and the events to which they relate. It suffices for present purposes for me to set out two events under this head.

[7] On 21 June 2011 at 2.30 am, you drove a truck to a credit union in Papatoetoe. The truck was parked adjacent to the…

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 R v Cecil aka Tuaeu

Details

AGLC: R v Cecil aka Tuaeu [2013] NZHC 1384
Case: [2013] NZHC 1384
Decision Date: 11 June 2013

CaseChat Overview and Summary

The case of R v Cecil, aka Tuaeu, involved three defendants who had pleaded guilty to a range of charges, including participation in an organised criminal group, burglary, theft and conversion of motor vehicles, arson, and obstructing the course of justice. The defendants were sentenced by Lang J in the High Court of New Zealand Auckland Registry. The key legal issues were the appropriate starting point for the sentences, the effect of the defendants' previous convictions, and the need for any minimum term of imprisonment. The Crown argued for a starting point of seven to eight years imprisonment for the burglary charges, uplifted to reflect the remaining charges. The defence argued for a starting point of between five and six years, noting the defendants' guilty pleas.

The court selected a starting point that reflected the culpability of the overall offending, considering the significant damage caused and the premeditated nature of the crimes. The court found that Junior Cecil's previous convictions were an aggravating factor, warranting an uplift of six months. The court also considered the mitigating factor of the defendants' guilty pleas, granting allowances ranging from ten to twenty per cent. The minimum term of imprisonment was determined based on the need for denunciation, deterrence, accountability, and protection of the public, with varying minimum terms imposed on each defendant.

The final sentences were as follows: Junior Cecil received a sentence of seven years seven months for the burglary charges, three years for participating in a criminal group, twelve months for car conversion, and one year for obstructing the course of justice. Bozamae Cecil received six years four months for the burglary charges, three years for participating in a criminal group, twelve months for theft of a motor vehicle, eighteen months for arson, and one year for obstructing the course of justice. Ngalam Fetuleai received seven years for the burglary charges, three years for participating in a criminal group, twelve months for theft of a motor vehicle, eighteen months for arson, and nine months for obstructing the course of justice. All sentences were to be served concurrently except for the sentences for obstructing the course of justice, which were to be served cumulatively.

Orders