R v Tufuga

[2013] NZHC 1120

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-3571 [2013] NZHC 1120

THE QUEEN

v

HIRAM KONONA TUFUGA

Hearing:         16 May 2013

Counsel:         K Grau and B Tompkins for the Crown

J Bonifant for Hiram Tufuga

Sentence:       16 May 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1]      You  appear  for  sentencing  today  having  pleaded  guilty  to  a  charge  of blackmail.1  The maximum penalty for that offence is 14 years’ imprisonment.

Circumstances of the offending

[2]      On a date between 1 and 30 November 2012, you and two associates formed an agreement to rob a bar in Kilbirnie.  One of those associates managed the bar and was responsible for closing the premises at the end of the day, counting the takings

and securing the money in the safe.  The plan was that you and your other associate

1      Crimes Act 1961, ss 237(1) and 238.

R v TUFUGA HC WN CRI-2013-085-3571 [16 May 2013]

would confront her with a knife or a cross-bow and she would hand over the takings. The three of you planned to divide the takings at a later time.  Your associate who managed the bar was to organise the date of the robbery.  You covertly recorded the discussions between the three of you in which this plan was made on your cell phone.

[3]      Before the plan was actioned, on 3 December 2012 there was a series of text messages between you and your associate who managed the bar.  You told her that you had recorded the planning of the robbery.  You demanded that she pay $300. She expressed surprise at what you were demanding of a mate and told you that she did not have the money to pay you.  You said she should start looking for another job.  On 11 December 2012 you sent a text message to the associate asking her when she was paying as it had been a week and she was not to “fuk” you around.  The money you demanded was not paid.

[4]      After this, the exact date has not been provided to me, your associate was sent home early from work because the bar was quiet. On that day you went into the bar and played the recording to her managers.  Your associate was contacted and the keys to the bar were taken from her and she lost her job.

[5]      Your two associates have been charged with conspiracy to commit theft. You initially faced a conspiracy charge also, but that is no longer to be pursued by the Crown as it has decided that your criminality is adequately addressed by the conviction for blackmail.

[6]      You told the police that you had no intention of taking part in the robbery, and made the recording so that you could blackmail your associate.

Circumstances of the offender

[7]      Turning to your personal circumstances, you are 22 years old and of Pacific Island descent.  You have family with whom you maintain contact: your parents in Auckland, who have submitted a letter to me, and also your partner of two years in Napier, with whom you have an eight month old daughter.  You describe yourself as

being an active and founding member of the “Full Blooded Islanders” gang, which is based in the Wellington region, and say that your gang associates are your main support here in Wellington.

[8]      You have a number of previous convictions. These include:

(a)       convictions for violent offending in early 2007 for which you received

a sentence of 10 months’ imprisonment;

(b)      breaches of release conditions relating to that sentence in 2007 and

2008 for which you were sentenced to 8 months’ home detention;

(c)      six convictions for burglary, five of which were in 2010 and for which you received a sentence of five months’ home detention and a more recent conviction for which reparation was ordered; and

(d)      you have one conviction for failure to answer bail in 2010; You have no previous convictions for blackmail.

[9]      In relation to the blackmail, you told the report writer that you had not considered the  impact  of  your  offending before  doing  it  and  were  focused  on personal gain.   According to the report writer, you did not appear to show any remorse for the offending.  The report writer assesses you as at a high risk of reoffending because of your conviction history and your gang associations.

[10]     The pre-sentence report writer discussed electronically monitored sentencing options with you.  You suggested your parents’ address as a suitable address.  The writer attempted to contact your father but did not receive a response.  Your counsel has spoken with your parents recently and understands from them that they do consent to you serving a sentence of home detention at their address.

Starting point

[11]     I  turn  now  to  consider  a  starting  point  for  the  offence.    I  note  that imprisonment  has  been  usual  for  blackmail  offending.    However  since  home detention has been available as a stand-alone sentence, that sentence is now not uncommon.2    Other community based sentences have also been imposed when the circumstances have warranted it.3    A comparison with cases comparable to yours provides guidelines in setting a starting point for your sentence.  I have reviewed the

cases counsel have provided and a number of others as well.

[12]     On the basis of the cases the Crown has relied upon it submits a starting point of between 18 and 24 months’ imprisonment.4  Your counsel submits that the starting point should a short-term sentence of imprisonment.5

[13]     In   my   view,   the   appropriate   starting   point   is   around   15   months’ imprisonment.6    In setting this starting point I note that the threat was to disclose information which was likely to strike fear in the victim, because it would reveal her part in proposed criminal offending which was likely to result in the woman losing her job and being criminally charged.  The threat was made on two occasions and on the first occasion there were a number of texts reiterating the threat.   There was

premeditation in that you say that you never intended to take part in the robbery and recorded the conversation in order to blackmail the woman.  You followed through on the threat and disclosed information to her employers. Those are all factors which

aggravate the offending.

2      See for example R v Verma [2012] NZHC 3160; R v Hulme [2012] NZHC 1766.

3      See for example Currie v R [2011] NZCA 624; R v Thomas CA138/05, 6 July 2005.

4      Counsel for the Crown referred to R v Henderson HC Rotorua CRI-2006-070-7741, 20

September 2007; R v Nixon HC New Plymouth CRI-2007-043-3523, 20 February 2008; R v

Wilson HC Wellington CRI-2008-032-4282, 3 July 2009.

5      Counsel for Mr Tufuga referred to R v Le Frantz [2012] NZHC 3149; R v Taueki [2012] NZHC

3285.

6      Less serious than R v Strange HC Christchurch CRI-2009-069-671, 17 September 2009; R v Grygoruk HC Auckland CRI-2006-092-12831, 23 May 2008; R v Nixon HC New Plymouth CRI-2007-043-3523, 20 February 2008; R v Jefferys HC Rotorua CRI-2009-070-5635, 4 June

2010. More serious than R v Dyson HC Auckland CRI-2008-044-5176, 21 April 2009; R v Lynch HC Invercargill CRI-2010-025-3014, 14 December 2010. Perhaps closest to R v Matekohi HC Hamilton CRI-2007-019-1089, 9 August 2007 (but less serious than that).

[14]     On the other hand factors that make the offending less serious than others are that the threats did not involve violence, the sum of money was comparatively small (although still an amount that was too much for the victim to be able to pay), the victim was not vulnerable other than because she had something to hide because of her involvement in the robbery plan and it might be said that in disclosing the information to the victim’s employers some potential good was done in that they were alerted to something which at the very least raised serious questions about whether they could trust her in her role at the bar.

Aggravating and mitigating factors

[15]     As  noted  above,  you  have  previous  convictions  for  violent  offending, dishonesty offending and breaches of court orders. Although those convictions show a general disregard for the law, the offending here was quite different from your other offending and I will not therefore uplift the sentence because of that.

[16]     You are entitled to a discount for your guilty plea. It was made early - at your plea evaluation hearing.  There are no real other mitigating circumstances although your counsel has referred to the shame that is attendant on this sort of offending in your community, amongst your people – your family in particular - I am not going to make any discount for that.  The prosecution case was a strong one.  Overall I will allow a discount of 25 per cent, which is for your guilty plea.

Sentencing options

[17]     That would leave an end sentence of 11 months’ imprisonment.  Given the nature of your offending and your previous history, I consider that community detention or lesser sentences would not serve the purposes of sentencing including denunciation and deterrence, but a sentence of home detention would.7   There have been some previous non-compliance with court orders and some breaches of bail on the present charge which resulted in your remand in custody at the end of January

this year.   However you have successfully completed previous sentences of home

7      The Court of Appeal has held that the purposes of denunciation and deterrence can be met by a sentence of home detention: R v Iosefa [2008] NZCA 453 at [41].

detention.  Your parents are supportive of you and I am told you will respect their rules if you are granted home detention and are able to serve it at your parents’ address.   Moreover the risk of a home detention sentence being cancelled and a return to custody should give you sufficient incentive to comply with the conditions of a home detention sentence.  A sentence of home detention of around six months would be appropriate but there would then need to be an allowance for the time that you have already served in custody.

[18]     At the moment the address has not been assessed as is required, and nor has the consent of your parents been advised formally.  So I will be sentencing you to 11 months’ imprisonment but I give you leave to apply to substitute your sentence for home detention when and if your father’s address or some other alternative and

appropriate address has been assessed as suitable for electronic monitoring.8

[19]     Stand down.

Mallon J

Solicitors:

Crown Solicitor’s Office, Wellington

8      Sentencing Act 2002, s 80K.