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…

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 Tufuga

Details

AGLC: R v Tufuga [2013] NZHC 1120
Case: [2013] NZHC 1120
Decision Date: 16 May 2013

CaseChat Overview and Summary

In the case of R v Tufuga, the defendant, Hiram Konona Tufuga, appeared before the High Court of New Zealand, Wellington Registry for sentencing following a guilty plea to a charge of blackmail. The maximum penalty for blackmail under the Crimes Act 1961 is 14 years’ imprisonment. Tufuga and two associates had planned to rob a bar in Kilbirnie, with one of the associates managing the bar. The plan involved confronting the associate with a knife or crossbow and demanding she hand over the takings. Tufuga covertly recorded the planning discussions on his cell phone. However, before the plan was executed, Tufuga demanded $300 from the associate, threatening to play the recording if she did not pay. After the demand was not met, Tufuga played the recording to the bar’s management, resulting in the associate losing her job.

The court had to decide on an appropriate starting point for the sentence, taking into account both aggravating and mitigating factors. Aggravating factors included the premeditated nature of the blackmail, the threat to disclose information that would likely result in the victim losing her job and facing criminal charges, and the repeated threats made. Mitigating factors included the absence of violence in the threats, the relatively small amount of money demanded, and the fact that the victim was not particularly vulnerable aside from her involvement in the planned robbery. The court also considered Tufuga's previous convictions and his membership in a gang, which indicated a high risk of reoffending. Despite these factors, the court determined a starting point of around 15 months’ imprisonment, noting that while imprisonment has traditionally been the norm for blackmail, home detention has become a viable alternative in certain cases. After applying a 25% discount for Tufuga’s early guilty plea, the court sentenced him to 11 months’ imprisonment, with leave to apply for substitution of the sentence with home detention upon suitable arrangements being made with his parents.

Orders