R v Tumata - [2012] NZHC 805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-016134 [2012] NZHC 805

THE QUEEN

v

DANIEL BOBBY TUMATA

Hearing: 27 April 2012

Counsel: K Raftery for Crown
P Broad for Prisoner

Judgment: 27 April 2012

SENTENCING REMARKS OF LANG J

R V DANIEL BOBBY TUMATA HC AK CRI-2011-092-016134 [27 April 2012]

[1] Mr Tumata appears for sentence today having just pleaded guilty to a charge under s 117(e) of the Crimes Act 1961 of wilfully attempting to pervert the course of justice. The maximum sentence for that charge is seven years imprisonment.

[2] I record that Mr Tumata entered his guilty plea following a sentence indication hearing that I conducted in accordance with s 61(3) of the Criminal Procedure Act 2011 earlier this morning. At the conclusion of that hearing, I gave a sentence indication of 12 months imprisonment to be served cumulatively on an existing sentence of nine years nine months imprisonment Mr Tumata is serving on a charge of manslaughter. I now set out the reasoning process by which I arrived at that sentence.

[3] Before undertaking the sentence indication, I had received a copy of the indictment together with an agreed summary of facts. I had also received detailed written submissions from both the Crown and counsel for Mr Tumata. In addition, I had obtained a copy of a pre-sentence report prepared on 16 April 2010 in anticipation of the sentencing hearing at which Mr Tumata was sentenced on the charge of manslaughter.

Factual background

[4] The facts that give rise to the offending flow from an incident that occurred on 12 August 2008. On that evening a 14 year old boy was killed at his home address in Manurewa. Mr Tumata and his co-accused, Mr Williams, were arrested and charged with assault with intent to rob and murder. Both accused were found guilty of assault with intent to rob. Mr Tumata was also found guilty of manslaughter and Mr Williams was found guilty of murder. Mr Tumata was subsequently sentenced to nine years nine months imprisonment on the charge of manslaughter, and Mr Williams was sentenced to life imprisonment. Mr Williams appealed against his conviction, and on May 2011 the Court of Appeal allowed his
appeal and directed a new trial.[1]

[1] Williams v R [2011] NZCA 245 (CA).

[5] The offending for which Mr Tumata appears for sentence today occurred whilst he was serving his sentence of imprisonment and Mr Williams was on bail on the charge of murder awaiting his re-trial.

[6] On 28 August 2011, Mr Tumata was in Rimutaka Prison. During that day he rang a third party, who is a cousin of Mr Williams. As is always the case, the telephone call was recorded by the prison authorities and for that reason would have been available as evidence at Mr Tumata’s trial. Mr Tumata told Mr Williams’ cousin that he intended to “blackmail” Mr Williams. The two men then discussed an arrangement that entailed Mr Williams paying the sum of…

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 Tumata

Details

AGLC: R v Tumata [2012] NZHC 805
Case: [2012] NZHC 805
Decision Date: 27 April 2012

CaseChat Overview and Summary

The defendant, Daniel Bobby Tumata, was convicted for wilfully attempting to pervert the course of justice by offering to withhold his testimony in exchange for money. The maximum sentence for this offence under section 117(e) of the Crimes Act 1961 is seven years imprisonment. The court was required to decide on an appropriate sentence, taking into account various legal principles and factors.

The court first established a starting point for the sentence by considering the relevant legal authorities and the facts of the case. While the defendant's plan was not carried to fruition, as his associate did not approach the co-accused, the court determined that the offence was premeditated and determined, and occurred within a prison environment. The court then selected a starting point of two years imprisonment, reflecting the defendant's culpability.

The court further considered aggravating and mitigating factors. The defendant's extensive criminal history, which included violent offences and numerous breaches of court orders, was taken into account. However, the court decided not to apply an uplift in this case as the defendant's previous convictions were not for offences of the same type. The court did, however, consider the defendant's cooperation with the authorities and his willingness to give evidence at the co-accused's retrial, awarding an eight-month discount for this factor. The court also gave a three-month discount for the defendant's guilty plea, albeit tempered due to the inevitability of his conviction.

Finally, the court considered the principles of totality when imposing a cumulative sentence. The court decided to reduce the sentence by one month to reflect totality principles, leaving a cumulative end sentence of 12 months imprisonment, to be served in addition to the existing sentence of nine years nine months for manslaughter.

In summary, the court sentenced Daniel Bobby Tumata to 12 months imprisonment for wilfully attempting to pervert the course of justice, to be served cumulatively on the existing sentence of nine years nine months imprisonment for manslaughter.

Orders