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.

Approach to sentencing

[9]      In sentencing  you today,  I am required to follow the standard approach, which requires first setting a starting point by looking at the nature and extent of your offending compared to similar cases.3   I then consider whether there is anything in your personal circumstances that justifies adjustments to that starting point – either mitigating factors that might reduce the sentence, or aggravating factors that might increase it.  I must also bear in mind the principles and purposes of sentencing set out in the Sentencing Act 2002.4

Crown’s submissions

[10]     The Crown  says  that  your receiving  charge should  be taken  as  the lead offence.  It submits that a proper starting point for that is between 12 and 18 months’ imprisonment.  It says the commerciality of your offending is an aggravating factor.

It notes, however, that most of the property was returned to the owner but that does not, in my view, greatly reduce the seriousness of your offending.   That is just because the Police were on to you.

[11]     The   Crown   further   submits   that   an   uplift   of   about   three   months’ imprisonment for the drugs charge is appropriate, and then acknowledges you are entitled to a 25 per cent discount for your guilty plea.

Defence submissions

[12]     Ms Pecotic has submitted on your behalf that the lead offence should be that of supplying methamphetamine, because its maximum penalty is life imprisonment. She says she accepts, as she must, that your drug offending warrants imprisonment but that your offending falls within the lowest band of the guideline judgment for

dealing in methamphetamine.5    She submits that there was no commercial gain for

you from the offending and that this was simply sharing a “smoke” of methamphetamine with your co-offender.  She submits that an appropriate sentence for this charge, looking at comparable cases, would be about nine months’ imprisonment, with an uplift of six months to take account of your receiving charge, giving a total of 15 months’ imprisonment.

[13]     An end sentence of that kind would allow me to consider something less than imprisonment, and Ms Pecotic submits that a sentence of intensive supervision and community work would be appropriate for you.  However, I have made it clear to her, as you have heard, that I consider an electronically monitored sentence is the least that should be imposed, bearing in mind the obligation to impose the least restrictive sentence that is appropriate in the circumstances.6

Starting point

[14]     I have to decide what the lead charge should be and I agree with the Crown that your receiving the stolen property is the more serious offending in this case.

That is because you supplied only a small quantity methamphetamine.   So I am going to discuss first the proper sentence to be applied for the receiving.

Receiving

[15]     There are no Court of Appeal tariff decisions on receiving stolen property because the circumstances vary so much.  But sentencing decisions for that type of offending show that in assessing blameworthiness or culpability, regard has to be had to the value of the goods, the duration of the offending, the number of charges, the existence or otherwise of a commercial element and the closeness of the relationship between the burglar and the receiver.7

[16]     The value of the goods stolen in the burglary was substantial – in excess of

$50,000 – and I acknowledge at once that you are not charged in relation to property other than the Holden motor vehicle.  There was clearly a commercial element in this offending, in that you were on-selling the goods for profit and I am satisfied that you were no stranger to those responsible for the burglary; so that you were, in a way, closely involved in the entire enterprise in my view.  However, I acknowledge that your offending related to only one burglary.

[17]     I  have  considered  a  number  of  comparable  cases  in  determining  the appropriate starting point for your offending.8

[18]     Like yours, they were cases involving an element of commerciality.   The starting points adopted by the courts ranged from around two and a half years to three years three months’ imprisonment, depending on the number of burglaries leading to the charges.  Only limited guidance can be taken from other cases,9 but I consider the starting point proposed by the Crown to be generous to you and that

may be the result of discussions which led to your guilty plea.

7      Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [21] and [22].

8      R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006; Police v Som HC Wellington

CRI 2005-485-141, 4 November 2005; R v Taiepa [2009] NZCA 120; R v Aldersley CA158/05,
17  October  2005;  Latham  v  Police  HC  Christchurch CRI-2011-409-96, 20  October  2011;
Sinclair v Police [2014] NZHC 1332; Cribb v Police HC Hamilton CRI-2010-419-46, 8 July

2010; Ellis v R [2012] NZCA 513.

9      Sinclair v Police, above n 8, at [17].

[19]     If not for the position taken by the prosecutor, I would have started at two years’ imprisonment but I am prepared to begin at 18 months’ imprisonment which is the upper limit of the range adopted by the Crown.

Drug offending

[20]     In terms of the drug offending, you have pleaded guilty to supplying a “point bag” or 0.1-0.2 grams of methamphetamine.

[21]     Again, I have considered sentencing cases in which a similar amount of that evil drug was involved.10

[22]     Your offending involved an actual supply rather than a mere offer, but there is no evidence of commerciality and had I been looking at this offence on its own I would have taken a starting point of 12 months’ imprisonment.

Cumulative sentences and totality principle

[23]     The drug offending and the receiving were separate offences and cumulative that  is,  two  sentences  added  together  are  appropriate.11   That  would  take  the combined starting point to two years six months’ imprisonment.  But I need to look at the totality of your offending and impose a sentence which reflects your overall blameworthiness.  So I would reduce the combined total by three months to make it

27 months’ imprisonment.

[24]     Next I turn to your personal circumstances, to see whether there is anything that would justify an increase or decrease in that sentence.

Personal circumstances

[25]     Mr Tua,  you  are 38  years old  and  of Samoan heritage.   You  have nine brothers and sisters and describe your upbringing as good but strict.  You appear to

10R v Fournier HC New Plymouth CRI-2011-443-14, 25 October 2011; R v Morrissey HC Rotorua CRI-2008-070-8612, 25 March 2009; R v Gibbons HC Auckland CRI-2009-090-9224,

27 July 2010; R v McRae HC Hamilton CRI-2006-019-3830, 20 June 2007.

11       Sentencing Act 2002, s 84.

have strong family support, and while on bail you have been residing with your brother, and working at his gym as a trainer.  That appears to have been a very good thing for you.

[26]     You were married with five children, but you have since separated from your wife and she has taken your children to Australia.  The writer of your pre-sentence report says that the absence of your family has been painful for you, particularly as your oldest son passed away two years ago in Australia due to a heart condition. You seem to be still grieving your son’s death and the separation from your family. Despite your close family ties you have found it difficult in the past to ask your relatives to help due to a sense of shame.  And you are right to feel that you have let down not only yourself but also your family in the way you have behaved through much of your life to this point.

[27]     You say that after your separation, you began using alcohol more; and after your son’s death you stopped caring about yourself and started using drugs.   You attribute this offending to those personal problems as well.  Ms Pecotic submits that at the time of your offending you were suffering from drug addiction.

[28]     It is commendable that you say you have now been clean from drugs and alcohol for a year.  But the report writer considers that you tend to minimise your offending and blame it on your associates, saying that you were just helping a friend to sell cars, and that the charge of methamphetamine supply has arisen from what was just a phone call rather than an actual sale of the drug.   I cannot accept that because of the nature of your plea.  You need to take a more realistic view of your own responsibility for your actions and the associations which led to your being here.

[29]     You have more than 30 previous convictions going back to 1995, relating to dishonesty, failure to comply with court orders and appearances, drugs and violence. Your risk of further offending is assessed as medium as you do not show much insight into your offending; and your risk of harm to others is assessed as high due to your record of violent offending and possible impulsiveness.

[30]     But the most serious of your convictions were some time ago.  In recent years your offending has mostly been confined to breaches of court orders and some minor dishonesty offending – and the Crown does not seek an uplift in sentence for these earlier convictions.  I propose to disregard them for the purposes of sentencing you today.

[31]     Ms Pecotic tells me you are deeply ashamed of your latest behaviour.  And you say that since you started working at your brother’s gym you have met positive people who have shown you different ways to deal with life’s challenges.  You say you are motivated to change.

[32]     You spent two months in custody (which would be time served if you were sentenced to imprisonment) and it is appropriate also to take into account the time you   have   spent   after   that   on   restrictive   bail   conditions.     That   was   from

27 November 2013 until 7 April 2014 when you were on bail subject to a 24-hour curfew.12   Since then you have been subject to a 7pm-7am curfew.  I do not think the period spent subject to a 12-hour curfew was sufficiently restrictive to warrant a discount but I will reduce your sentence by four months to take account of the period in custody and the time you were subject to the round-the-clock curfew.  This would take the sentence down to 23 months’ imprisonment.

[33]     You also entered an early guilty plea and it is agreed that you should be entitled to the full 25 per cent discount for that.   That is generous because the arrangements between the Crown and you resulted in a number of charges being withdrawn but I am prepared to agree to it.  That takes your total end sentence if you were to be sentenced to imprisonment to one of just under 18 months’ imprisonment.

Consideration of home detention

[34]     Because this is regarded as a short-term sentence of imprisonment, I can consider the option of home detention.13     The writer of your pre-sentence report

recommends  such  a  sentence,  although  acknowledging  the  seriousness  of  your

12     Sentencing Act 2002, s 9(2)(h); also R v Aram [2007] NZCA 328 and R v Potoru HC Auckland

CRI-2006-092-3877, 14 September 2007.

13     Sentencing Act 2002, s 15A(1)(a); Parole Act 2002, s 4(1).

offending,  and  you  have  a  suitable  home  address  and  a  work  address  for  that sentence.

[35]     A sentence  of  home  detention,  being  less  restrictive  than  a  sentence  of imprisonment, requires co-operation on the part of the offender and a degree of trust on the part of the sentencing court.   Unfortunately, your history is littered with instances where you have not complied with court orders and I would not ordinarily have confidence in the ability of a man with your record to successfully see out a lengthy period of home detention.

[36]     I am satisfied, however, that I can take something of a punt with you Mr Tua. You are 38 years old and it is time you grew up and changed your life.  You have complied with bail conditions which allowed you to spend time in the positive environment of your brother’s gym.  His influence and that of the other members of your family has been good for you and I agree with the probation officer that you have better prospects of reform if you do not go back into an environment which will necessarily put you into contact with the associates with whom you have offended.

[37]     In the circumstances, I accept that home detention is an appropriate sentence for you but it needs to be combined with conditions which will apply after your release.  It also needs to be for a period which not only reflects the seriousness of your offending but keeps you engaged with support from the probation service.

[38]     A sentence of 18 months’ imprisonment would normally translate to one of nine months’ home detention but you have been treated leniently, and I expect you to be granted leave to spend some of your time in detention at your brother’s gym.  I consider a period of 10 months to be more appropriate in your case.

Final sentence

[39]     Mr Tua  please stand up.

[40]     On each charge you are sentenced to 10 months’ home detention, the terms to be served concurrently; that is, at the same time, which means the total period in home detention will be 10 months.

[41]     After  you  are  released  from  Court  you  will  travel  directly  to  the  home detention address at 67 Robertson Road, Mangere, and there you will wait for the probation officer and security company personnel and cooperate with the fitting of a monitoring device.  You will remain at that address and not move from it without the prior approval of the probation officer.

[42]     You may apply for work release to your brother’s gym at 201 Onehunga Mall, Onehunga, so that you can continue employment there; and you may apply for any other work release the probation officer considers to be appropriate.

[43]     You are not to associate with any of your co-offenders, whose names will be given  to  you  by  the  probation  officer,  or  with  any  other  person  listed  by  the probation officer, without the probation officer’s prior approval.

[44]     You are not to consume, possess, purchase, sell or manufacture alcohol or any other illicit drug for the duration of your home detention.

[45]     You are to be assessed for the Medium Intensity Rehabilitation Programme and to complete the programme to the satisfaction of the probation  officer and programme provider.

[46]     You will attend any other counselling, treatment and/or other programme as instructed by, and to the satisfaction of, the probation officer.

[47]     I formally dismiss you on the remaining charges.  I wish you luck, Mr Tua;

please stand down.

……………………………….

Toogood J