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ROBERT TUIMAUGA AND THE KING

ROBERT TUIMAUGA AND THE KING

Case [2024] NZHC 3121 25 October 2024

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-486

[2024] NZHC 3121

BETWEEN
ROBERT TUIMAUGA

Appellant

AND

THE KING

Respondent

Hearing: 15 October 2024

Appearances:

P D Wilks for Appellant A A Kefu for Respondent

Judgment:

25 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 25 October 2024 at 11 am

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
Emma Priest, Barrister, Auckland Kayes Fletcher Walker, Auckland

TUIMAUGA v R [2024] NZHC 3121 [25 October 2024]

[1] This is an appeal against the sentence of Judge G A Andrée Wiltens on 15 August 2024.1 Mr Tuimauga pleaded guilty to supplying methamphetamine (representative), offering to supply methamphetamine (representative), and possession of methamphetamine for supply. On 15 August 2024, Mr Tuimauga was sentenced to two years and three months’ imprisonment in the Manukau District Court.

[2] The appellant contends that the end sentence was manifestly excessive because a discrete discount should have been given for the impact of imprisonment on his dependent children. If a discount of five per cent is given to reflect that factor, then the end sentence would be within range for home detention. The appellant contends that an end sentence of home detention is the least restrictive outcome appropriate in the circumstances.

Legal principles

[3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

[4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

[5] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

1      R v Tuimauga [2024] NZDC 19310.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
5 At [32].
6      R v Boyd (2004) 21 CRNZ 169 at [38].

Offending

[6]The quantity of methamphetamine involved in this case is 195.2 grams:

(a)Between 1 April and 19 September 2022 Mr Tuimauga supplied in total 113 grams of methamphetamine over at least 87 occasions.

(b)Over that same period, Mr Tuimauga offered to supply a total amount of 48.5 grams of methamphetamine over 83 occasions.

(c)During a search warrant in December 2022, police located a total amount of 33.7 grams of methamphetamine at his home.

District Court sentencing

[7] The District Court followed the two step methodology for sentencing as set out in Moses v R.7

[8] The…

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 ROBERT TUIMAUGA AND THE KING

Details

AGLC: ROBERT TUIMAUGA AND THE KING [2024] NZHC 3121
Case: [2024] NZHC 3121
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case involves an appeal by Robert Tuimauga against his sentence, which was handed down by Judge G A Andrée Wiltens on 15 August 2024. Tuimauga had pleaded guilty to supplying, offering to supply, and possessing methamphetamine for supply. The District Court sentenced him to two years and three months' imprisonment. Tuimauga argues that the sentence is manifestly excessive, particularly because the sentencing judge did not consider the impact of his imprisonment on his dependent children. He contends that a five per cent discount for this factor would render the appropriate sentence to be home detention, rather than imprisonment.

The central legal issues were whether the District Court erred in not applying a discount for the impact of imprisonment on Tuimauga's children and, if so, whether the end sentence should be home detention instead of imprisonment. The appeal hinged on whether the sentencing judge’s failure to consider this mitigating factor constituted an error that warranted a different sentence.

The High Court found that the sentencing judge erred in not addressing the impact of imprisonment on Tuimauga’s children, a factor that should have warranted a discount. The Court considered the significant adverse effects on Tuimauga’s young daughter and nine-year-old son, even though they remained in the care of their mother. A discount of five per cent was deemed appropriate. However, the Court held that the statutory presumption of imprisonment under s 6(4) of the Misuse of Drugs Act should not be displaced in this case. The offending was at a commercial level, and principles of deterrence, denunciation, and accountability required the imposition of imprisonment.

In conclusion, the appeal was allowed, and the sentence of two years and three months’ imprisonment was quashed. A new sentence of 23 months and two weeks’ imprisonment was substituted, to be served concurrently.

Orders