R v Tua - [2023] NZHC 2834

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-091-1925

[2023] NZHC 2834

THE KING

v

BO-DEAN JONATHON TUA

Hearing: 10 October 2023

Appearances:

G J Burston for the Crown L C Ord for Mr Tua

Date:

10 October 2023

SENTENCING OF COOKE J

[1] Bo-Dean Tua you are now to be sentenced as a result of your guilty plea in respect of one charge of being an accessory after the fact to attempted murder.1

The offending

[2] On 31 October 2021, you dropped a car at your sister’s house on the Kа̄ piti Coast. You had your bichon frise dog with you and arranged a lift home with your associates.

[3] You and your associates drove from the Kapiti Coast towards Wellington, and at Plimmerton turned off to go to the Camborne Jet Ski Club where you stopped. One of your associates then exited the car with a firearm and approached and shot the

1 Crimes Act 1961, ss 71(1) and 312; maximum penalty five years’ imprisonment.

R v TUA [2023] NZHC 2834 [10 October 2023]

victim, seriously wounding him. You remained in the car and witnessed the shooting. You and your associates then left the area at speed, travelling towards Whitby.

[4] You directed your associates to drive to your friend’s home when they arrived in Whitby. You spoke with your friend on arrival and asked him to allow the vehicle to be put in the garage to conceal it from detection. Your friend refused. You and your associates then removed some items from the vehicle. You also removed the vehicle’s number plates while it was stopped on the driveway at the address. You then arranged for your friend to follow you in the vehicle so it could be dumped and so you could get a lift to return home. They duly did so. The Police have not been able to recover the vehicle.

[5] In explanation you stated that you did not know your associates were going to shoot anyone on the way home. You just wanted a ride and ended up getting involved in the offending.

Approach to starting point

[6] There is no sentencing guideline or tariff judgment for charges of accessory after the fact to attempted murder. The nature of the charge is such that it may arise in a variety of circumstances. I must consider the general purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. As noted by Justice Gendall in the case of R v Boskell:2
In any case involving assistance given to a principal offender after a homicide has been committed, the purposes of deterrence and denunciation are of particular importance. In a case called Duff, Lang J said “[people] must know that if they harbour or assist fugitives they are likely to be dealt with severely if they are caught.”

…

There is no tariff for offending of this kind.…

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 Tua

Details

AGLC: R v Tua [2023] NZHC 2834
Case: [2023] NZHC 2834
Decision Date: 10 October 2023

CaseChat Overview and Summary

The case of R v Tua involves the defendant, Bo-Dean Jonathon Tua, who pleaded guilty to being an accessory after the fact to attempted murder. The incident occurred on 31 October 2021, when Tua, accompanied by his dog, travelled with his associates from the Kapiti Coast towards Wellington. At Plimmerton, they turned off to the Camborne Jet Ski Club where one of Tua's associates shot a victim, who was seriously wounded. Tua remained in the car and witnessed the shooting. Following the incident, Tua and his associates drove to Whitby, where they asked a friend to allow them to conceal the vehicle in his garage, which was refused. The group then removed items from the vehicle and its number plates before arranging for Tua's friend to follow them in the vehicle so it could be dumped and they could obtain a lift home. The police have not been able to recover the vehicle. Tua claimed that he did not know his associates intended to shoot anyone and only wanted a ride home.

The court was tasked with determining an appropriate starting point for sentencing, considering the nature and extent of Tua's assistance, the seriousness of the principal offence, and the effectiveness of the outcome of the assistance provided. The court considered that Tua's assistance was at the lower end of the scale, as he did not premeditate his involvement and his assistance was short-lived. However, Tua's actions to conceal his involvement and that of his co-defendants, including directing his associates to drive to his friend's address, requesting assistance in concealing the vehicle, removing items from the car, and removing the number plate, amounted to active assistance. Based on these factors, the court determined that a starting point of nine months' imprisonment was appropriate.

Considering Tua's personal circumstances, the court found that a 10% reduction of the sentence was appropriate due to his commitment to his family and his involvement in his mother's care, who has been diagnosed with terminal cancer. The court also considered Tua's early guilty plea, determining a 20% discount was appropriate. The court concluded that a non-custodial sentence was appropriate, opting for community detention to avoid Tua being sent to prison and to maximise his pro-social connections with his family. The court imposed a sentence of three months' community detention and six months' intensive supervision on special conditions, including judicial monitoring. Tua's Probation Officer would determine the specific conditions of his community detention and whether electronic monitoring would be required.

Tua was sentenced to three months' community detention at the address identified by the court, with a curfew from 8.00 pm to 6.00 am each night, commencing on 13 October. He was also sentenced to six months' intensive supervision on special conditions, including judicial monitoring, commencing at the same time as the community detention period. Tua was required to report to his Probation Officer within 24 hours.

Orders