R v Tua - [2014] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-9711 [2014] NZHC 3049

THE QUEEN

v

FOMAI TUA

Hearing: 2 December 2014

Appearances:

DJ Dufty for Crown
MN Pecotic for Prisoner

Sentence:

2 December 2014

SENTENCING NOTES OF TOOGOOD J

R v TUA [2014] NZHC 3049 [2 December 2014]

Introduction

[1] Fomai Tua, you appear for sentence having pleaded guilty to one charge of receiving stolen property and one charge of supplying the class A controlled drug methamphetamine. The maximum penalty for the receiving offence is seven years’ imprisonment;1 and for the drug offence involving methamphetamine, life imprisonment.2

[2] I tell you now, because I do not think you should be kept waiting, that I am not going to send you back to prison. But you can consider yourself very fortunate that that is the case and you can consider yourself to have been well served by your family, because it is on account of them and the support that they have given you, and which I believe they will continue to give you, that I am not going to send you back to jail. Had it been otherwise, that is where you would be going.

Background facts

[3] You are here because, in July and August 2013, the Police carried out an investigation into the activities of the Maungakaha Auckland chapter of the Black Power gang. The operation involved the interception of phone calls and text messages sent and received by gang members and associates, including you.

Receiving stolen property

[4] The receiving charge against you arose out of a burglary that was committed in Manurewa. On 23 July 2013, between midday and 1 pm, a property in David Avenue was burgled. The offenders stole various items of property and tools, including a 50-inch Samsung television, a 54-inch Panasonic television, a drop saw, three car models and a nail gun, as well as two motor vehicles – a VK Holden Commodore valued at $20,000, and a Holden Torana valued at $30,000.

[5] In the days following the burglary, intercepted communications showed that you and your associates were trying to sell the motor vehicles and other property

taken in the burglary. On 31 July 2013, you spoke to an associate and told him that you had a buyer for the Commodore.

[6] On 1 August 2013, your associate sold that vehicle to a man in Waihi. The car was later stopped by Police and recovered.

[7] On 8 August 2013, you and your associate discussed having found a buyer for the stolen Torana. That day, at about 4.30 pm, the Police executed a search warrant at a residence in Manurewa. In the garage they found the Torana as well as a large number of the other personal items and tools taken from the David Avenue property.

Supplying methamphetamine

[8] The methamphetamine charge arose because, on or about 24 July 2013, you were at home and an associate came to visit. You then supplied him with approximately 0.1-0.2 grams of methamphetamine.

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 [2014] NZHC 3049
Case: [2014] NZHC 3049
Decision Date: 2 December 2014

CaseChat Overview and Summary

Fomai Tua was sentenced by the High Court of New Zealand for receiving stolen property and supplying methamphetamine. The receiving charge arose from a burglary in Manurewa where various items including two motor vehicles were stolen. Tua was found to be involved in the sale of the stolen vehicles. The methamphetamine charge involved Tua supplying a small quantity of the drug to an associate. The court had to determine the appropriate sentence considering the nature and extent of the offending, personal circumstances of the offender, and principles of sentencing.

The Crown argued that the receiving charge should be the lead offence with a starting point of 12-18 months’ imprisonment, noting the commercial aspect of the offending. They also suggested an uplift of three months for the drug charge and acknowledged a 25 per cent discount for the guilty plea. The defence argued that the drug charge should be the lead offence due to its higher maximum penalty, suggesting a starting point of nine months’ imprisonment with an uplift for the receiving charge. The defence proposed a sentence of intensive supervision and community work.

The court decided that the receiving charge was more serious and set a starting point of 18 months’ imprisonment for this charge, considering the commercial element and Tua’s involvement in the entire enterprise. For the drug charge, a starting point of 12 months was proposed. The court decided to impose cumulative sentences, resulting in a combined starting point of two years and six months’ imprisonment, reduced by three months to reflect the totality of the offending. Tua’s personal circumstances, including his family support and motivation to change, were considered, leading to a final sentence of 10 months’ home detention with specific conditions to ensure engagement with support services and prevent reoffending.

The final orders included a sentence of 10 months’ home detention to be served concurrently on both charges. Tua was to reside at a specified address, apply for work release at his brother’s gym, and refrain from associating with co-offenders or consuming alcohol and drugs. He was also required to participate in rehabilitation and other programmes as instructed by the probation officer.

Orders