Tanuvasa v Police
[2017] NZHC 939
•8 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-103 [2017] NZHC 939
BETWEEN FRED TANUVASA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 May 2017 Appearances:
REV Slade for the Appellant
A D Luck for the RespondentJudgment:
8 May 2017
ORAL JUDGMENT OF MUIR J
Counsel/Solicitors:
REV Slade, Public Defence Service, Auckland
A D Luck, Meredith Connell, Auckland
TANUVASA v NEW ZEALAND POLICE [2017] NZHC 939 [8 May 2017]
Introduction
[1] On 24 February 2017 the appellant, Mr Tanuvasa, pleaded guilty to one charge of threatening to cause grievous bodily harm.1 He was sentenced to nine months’ imprisonment by Judge Collins in the District Court.2 He was, on the same day, convicted and discharged on an additional charge of failing to answer bail.3
[2] Mr Tanuvasa now appeals his sentence of imprisonment, arguing that the starting point was too high and that a sentence of home detention was the more appropriate sentence. He has been held in custody since the date of his sentencing.
Background
Agreed facts
[3] The Crown presented an agreed summary of facts for the purposes of sentencing.
[4] It described that on 30 January 2016 there had been a burglary at the premises of Keith Whitlow in Penrose. Computer equipment and tools were stolen.
[5] On 5 February 2016, Mr Tanuvasa phoned Mr Whitlow and asked him if he had lost any equipment. He explained that he had bought some tools for $400 and that Mr Whitlow’s company name was written on them. Mr Tanuvasa agreed to meet Mr Whitlow at his business premises and return the tools to him. He did so, and he received $200 for his assistance in recovering them. Mr Tanuvasa also agreed to assist in the recovery of computers that had been taken in the burglary, and Mr Whitlow offered him a sum of money in return.
[6] After some effort, Mr Tanuvasa recovered Mr Whitlow’s computers and returned them to him at his business premises. Mr Whitlow confirmed that the computers were the ones that had been taken in the recent burglary, but, on analysis,
found that the data recorded on them had been wiped making them comparatively
1 Crimes Act 1961, s 306. The maximum penalty for this offence is seven years’ imprisonment.
2 Police v Tanuvasa [2017] NZDC 4068.
3 Bail Act 2000, s 38.
worthless to him. He told Mr Tanuvasa this, and paid him $300 for his efforts. This was somewhat less than had been the agreed sum for the recovery of the computers.
[7] At that point, Mr Tanuvasa became enraged and made a number of threats to Mr Whitlow. He said that he would bring gang members to Mr Whitlow’s property to damage it. He suggested that he had a gun in his car. He threatened to put Mr Whitlow in the boot of his car and to put him in a pit with fighting dogs. He also threatened Mr Whitlow’s home and children. It was a succession of very ugly threats.
[8] Mr Whitlow believed he was going to be assaulted and he genuinely believed that Mr Tanuvasa had sufficient gang connections to be able to give effect to what he was threatening to do. He took his glasses off and put them on a table fearing that he would be imminently assaulted. At that point two police vehicles came up the driveway, and police spoke to Mr Tanuvasa. In explanation, Mr Tanuvasa said he was not serious about the threats and that he knew the tools had been stolen.
Personal circumstances
[9] Mr Tanuvasa is 33 years old. He lives with his partner and mother-in-law and three young children. He is the sole provider for the family and engages in work as a scaffolder.
[10] He has 36 previous convictions dating between 2003 and 2015. Many of these are thefts, burglaries and driving offences. However, he also has
13 convictions that can broadly be described as non-compliance with court orders, namely: breach of community work, breach of home detention conditions, breach of release conditions, breach of supervision conditions and failure to answer bail. The most recent of these occurred in February 2009, although it should be noted that Judge Collins also convicted and discharged Mr Tanuvasa on an additional charge of failing to answer bail in the present case.
[11] Since 2010 Mr Tanuvasa seems to have, at least to some extent, turned his life around. He has engaged in volunteer community work as a mentor for at-risk
Pacific Island youth, assisting them to create pathways back into the workforce. A letter of reference from that organisation was provided, saying that he was hardworking, committed and positive.
[12] Mr Tanuvasa has written a letter of remorse to Mr Whitlow, stating that he is
“embarrassed for [his] behaviour” and “truly sorry for [his] actions”.
[13] In the pre-sentence report, prepared in November 2016, a sentence of community work and/or supervision was recommended. The report stated:
Based on previous sentence compliance and engagement and the fact that he hasn’t re offended since 2009 Mr Tanuvasa is assessed as low risk of re offending and medium risk of harm.
District Court sentencing decision
[14] Judge Collins took the view that Mr Tanuvasa was looking to make money out of a victim of a crime. He considered that if Mr Tanuvasa’s intentions were innocent and genuine, it was inexplicable that he had become so enraged after receiving $300 for his assistance in returning the computers. He considered the offending serious, given the vulnerability of the victim and what he described as the “chilling” nature of the threats.
[15] Judge Collins noted that there was no tariff decision for offences of threatening to commit grievous bodily harm, and greater assistance came from the cases of demanding with menaces. He referred briefly to the decisions of R v Thomas,4 R v Shepherd,5 and Carruth v R,6 noting only that the present case was significantly less serious than in Thomas.
[16] His Honour reached a starting point of 12 months’ imprisonment. He deducted three months from the starting point in light of what he saw as the only mitigating factor, namely Mr Tanuvasa’s guilty plea. That equated to a 25 per cent
discount.
4 R v Thomas [2016] NZHC 3083.
5 R v Shepherd HC Hamilton CRI-2010-019-7285, 30 May 2011.
6 Carruth v R [2013] NZCA 296.
[17] The Judge did not consider that the sentence should be commuted to one of home detention, for two reasons. First, this was a particularly serious incident of “stand-over thuggery”; and secondly, Mr Tanuvasa had such a poor record of compliance with court orders that the Judge had no confidence he would comply with a sentence less than imprisonment. The Judge did not consider Mr Tanuvasa’s personal circumstances warranted a sentence of home detention.
[18] The final sentence therefore was one of nine months’ imprisonment, with special and standard release conditions.
Grounds of appeal
[19] Mr Tanuvasa appeals his sentence on the grounds that the Judge erred:
(a) in his assessment of the starting point by adopting a starting point that was too high;
(b)in imposing a sentence of imprisonment when home detention was the least restrictive option;
(c) by giving excessive weight to Mr Tanuvasa’s previous convictions for breaching court orders when determining whether Mr Tanuvasa would not or could not comply with a sentence of home detention;
(d)by not giving sufficient weight to the pre-sentence report which stated that Mr Tanuvasa’s ability to comply with an electronically monitored sentence was reasonable and recommended a community-based sentence; and
[20] by giving insufficient weight to Mr Tanuvasa’s personal
circumstances.
[21] Mr Tanuvasa accepts the Crown’s summary of facts. However, he adds
further detail and puts forward an explanation for his actions:
(a) He says he received the stolen goods because a family member contacted him by phone and offered him tools to purchase. Mr Tanuvasa had not viewed the tools, and it was agreed they would be left at his address. When he inspected them, he discovered Mr Whitlow’s contact details.
(b)Mr Tanuvasa then returned the tools to Mr Whitlow in good faith. He accepted the money that Mr Whitlow offered in gratitude for returning the stolen property. They engaged in further discussion about recovering the other stolen items, and Mr Tanuvasa was to make enquiries in return for an agreed sum.
(c) Mr Tanuvasa was able to purchase and return the computers to Mr Whitlow. On discovering that the data had been wiped, Mr Whitlow offered a sum less than what was agreed. Mr Tanuvasa became angry as he had used his family savings to purchase the stolen computers, and would be unable to recover his losses.
(d)After his arrest, Mr Tanuvasa attempted to assist police with details about the location of the individuals who sold him the stolen items.
Starting point
[22] Mr Slade for Mr Tanuvasa submits that a starting point of between six to nine months would have been appropriate. He refers to several cases to support his argument, which I discuss in further detail later.
Home detention
[23] Mr Slade refers to s 16 of the Sentencing Act 2002, which identifies relevant considerations for the Court’s assessment before sentencing an offender to imprisonment. In particular, imprisonment must be the only way of achieving the statutory purpose for which the offender is being sentenced. Home detention, Mr Slade submits, is a serious sentence that imposes major restrictions on liberty and carries with it the principles of deterrence and denunciation. It would also adequately protect the community from the risk of Mr Tanuvasa’s offending, particularly given that post-detention conditions can be imposed.
[24] Mr Slade further submits that the Judge gave excessive weight to Mr Tanuvasa’s previous convictions. He accepts that Mr Tanuvasa’s personal history reveals a lack of compliance with court orders. However, he contends that a review of his current personal circumstances provides a more accurate assessment of his ability to comply with a sentence of home detention. He says that the relationship which Mr Tanuvasa entered into in 2010 has allowed him to make positive lifestyle changes, and he has not been convicted for non-compliance with court orders since then. He has joined a police programme that assists with the transition to a pro- social lifestyle, and he mentors youth at risk of making similar anti-social choices. He supports his mother-in-law and partner, who both suffer from osteoarthritis.
[25] He further submits that the Judge had insufficient regard to the pre- sentencing report, which describes Mr Tanuvasa’s compliance as reasonable and places him at a low risk of re-offending. He also points out that he has served approximately half of his sentence already while awaiting the determination of his appeal, which has brought home to Mr Tanuvasa the consequences should he breach his home detention conditions.
[26] Finally, he submits that a sentence of home detention would allow Mr Tanuvasa to continue his work as a scaffolder, maintaining his life structure through pro-social employment. It would also allow him to consider the possibility of an emotional harm repayment to Mr Whitlow, which would better serve the interests of the offender, the victim and the community than a sentence of imprisonment.
Starting point
[27] For the police, Mr Luck submits that the starting point was within the proper range. He notes that the following aggravating factors were present: chilling threats directed at the victim and his family; Mr Tanuvasa’s ability to effect the threats; and the vulnerability of and danger to the victim.
[28] The police submit that of the three cases Judge Collins referred to, Carruth is the most relevant to the present offending as it involved similar facts. The Crown contends that the three cases that Mr Slade refers to are of limited assistance, given that the circumstances of the threats were somewhat different and different issues arose on appeal (such as discounts for youth and remorse).
[29] The police also submit that Judge Collins’ discount of 25 per cent for Mr Tanuvasa’s guilty plea was generous, given that it followed extensive negotiations between counsel as to the agreed summary of facts. He did not plead guilty until approximately eight months after the offending.
Home detention
[30] The police submit that a sentence of imprisonment was appropriate, given Mr Tanuvasa’s extensive history of breaching court orders. Mr Luck points out flaws in the pre-sentence report. The police also note that although Mr Tanuvasa had made positive lifestyle changes since 2010, those factors could not outweigh the need for a custodial sentence in this particular case.
Approach to appeal against sentence
[31] This appeal is governed by s 250(2) of the Criminal Procedure Act 2011 which states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[32] In any other case, the Court must dismiss the appeal.7
[33] Although the section makes no express reference to the concept of “manifestly excessive”, the Court of Appeal in Tutakangahau v R has held that that concept continues to provide a helpful means of examining the significance of any error in order to decide whether a different sentence should be imposed.8
Analysis
Starting point
[34] The maximum sentence for threatening to cause grievous bodily harm is seven years’ imprisonment. There is no tariff case for sentencing in this area; rather, the court must have regard to the particular circumstances of the threat. The courts have held that key factors in assessing the culpability of offending of this nature are:9
(a) Premeditation, namely the degree to which the threats were planned or calculated.
(b) The nature and frequency of the threats. (c) Any link to earlier actual violence.
(d) Whether the object of the threats holds public office. (e) The ability of the offender to effect the threat.
(f) Actual danger to the victim.
(g) Use of a weapon as part of the threat.
7 Criminal Procedure Act 2011, s 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]-[35].
9 Faaleaga v R [2011] NZCA 495 at [11]; McKinlay v Police HC Rotorua CRI-2011-470-28, 28
November 2011 at [19].
[35] I agree with Judge Collins that this was serious offending. Mr Tanuvasa made multiple serious, specific threats while directly confronting his victim. These included threats of immediate violence such as putting Mr Whitlow in the boot of his car, and threats of future action against his family and property. As Judge Collins observed, Mr Tanuvasa is a big and powerful man and it would have appeared that he had the ability to give effect to the threats made. He also indicated or inferred that he had sufficient connections to gangs to effect aspects of his threats. Mr Whitlow genuinely feared he would be assaulted.
[36] It is also relevant that Mr Whitlow had recently (to Mr Tanuvasa’s knowledge) been the victim of crime, although not at the hands of Mr Tanuvasa. He was in a vulnerable position, as all victims of crime are.
[37] On the other hand, I note that the threats appear to have been spontaneous, arising from Mr Tanuvasa’s anger at not receiving the sums that he thought he would receive.
[38] I now turn to the relevant case law. Judge Collins cited Carruth v R, R v
Shepherd and R v Thomas:
(a) In Carruth v R, the lead offence for which Mr Carruth was sentenced was aggravated robbery. Mr Carruth was not independently sentenced on the additional charge of demanding with menaces. The sentencing Judge adopted a starting point of two years, and applied an uplift of one year for the charge of demanding with menaces. That was upheld on appeal, but with little discussion of why that particular uplift was appropriate. Contrary to the police submissions, therefore, I do not consider that this case provides substantial assistance in relation to the appeal.
(b)In R v Thomas, Mr Thomas unlawfully entered the victim’s house with an associate and demanded some of her property in return for what he believed to have been money stolen from him. He threatened to stab the victim and used actual violence against her, choking her
until she handed over her phone. His associate held a knife and threatened to stab the victim. Mallon J adopted a starting point of two years and eight months’ imprisonment for Mr Thomas. The offending in Thomas was substantially more serious than the present case, given the use of actual, significant violence and the particular vulnerability of the victim (a female faced with two males, one of whom was armed with a knife). Judge Collins was right in accepting that this was offending in a totally different category.
(c) The lead offence in R v Shepherd was blackmail, although Mr Shepherd also pleaded guilty to a charge of threatening to cause grievous bodily harm. Mr Shepherd discovered that the victim had had an affair with his partner. Over the course of a long telephone discussion and numerous text messages, Mr Shepherd threatened to inform the victim’s wife of the affair if the victim did not pay him
$1000. He also threatened to break the victim’s kneecaps, and continued to make threats even after the money was paid. Allan J adopted a starting point of two years’ imprisonment. The offending in Shepherd was also substantially more serious than the present case, given the extent of premeditation and the sustained nature of the threats.
[39] Mr Slade refers to three further cases, arguing that each was more serious than the present offending:
(a) R v Thomas (a different judgment from the one discussed above):10
Ms Thomas was sentenced on two charges of threatening to cause grievous bodily harm. She had approached two young women believing that they had informed the police about her partner’s involvement in a burglary. She made various threats, including a threat to drag them by their hair and to burn down their homes. Fearing for their safety, the two women went with her to an address
and were made to enter the property, at which point they escaped.
10 R v Thomas CA212/04, 2 August 2004.
The Judge imposed a sentence of nine months’ imprisonment, which was upheld on appeal. No reference is made to the starting point and it is difficult to determine what it would have been, given the presence of personal mitigating factors which would have justified a discount. I therefore consider the case to be of limited assistance.
(b)Richards v Police:11 Mr Richards was sentenced to 10 months’ imprisonment on a charge of threatening to kill and three other charges. On appeal, Fogarty J substituted a sentence of six months’ supervision, in light of the need to support Mr Richards’ rehabilitation and reintegration. There was no detailed discussion of the starting point that was appropriate on the facts of the case, and the utility of the decision is further reduced by the fact that Mr Richards was being sentenced concurrently on three other charges. Again, therefore, I derive only limited assistance from this case.
(c) In Dawson v Police,12 Mr Dawson was sentenced on a single charge of threatening to cause grievous bodily harm. The threats occurred in the course of a heated argument between Mr Dawson and his partner. When a member of the public [the victim] approached, Mr Dawson picked up a hammer and threatened to “smash [the victim’s] head in”. He stood approximately one metre from the victim while saying this, and the victim feared he would carry out his threat. A starting point of seven months’ imprisonment was adopted on appeal. I consider that the present offending is slightly more serious: although Mr Tanuvasa did not wield a weapon, he made several particularly chilling threats of immediate and future retributive action. I note that the threats in both cases were unplanned outbursts in anger.
[40] I have also had regard to McKinlay v Police,13 where Mr McKinlay
unlawfully entered the victim’s home where she resided with her nine-month-old son. After smoking methamphetamine in front of her, he said in a menacing voice
11 Richards v Police [2015] NZHC 2650.
12 Dawson v Police [2012] NZHC 3298.
13 McKinlay v Police HC Rotorua CRI-2011-470-28, 28 November 2011.
“Get your son away from me or else I will kill him”. Mr McKinlay had a history of violence towards the victim, who was his former partner, and she was fearful for her safety and that of her son. On appeal, Asher J adopted a starting point between
10 and 14 months after reviewing the relevant case law. I consider that McKinlay was more serious than the present case, given the history of violence between the parties and the increased vulnerability of the victim.
[41] After referring to the extensive review of the case law in McKinlay, Brewer J observed in Dawson v Police that “[it] seems that a starting point of 12 months' imprisonment is quite high, even where the threat was to kill”.14
[42] Having reviewed these authorities, in my view, the starting point of
12 months’ imprisonment was too high on the facts of this particular offending. Mr Tanuvasa’s threats were not accompanied by violence or other criminal offending. His initial entry onto Mr Whitlow’s property was lawful. Mr Whitlow was vulnerable, but not as vulnerable as a victim who had previously experienced violence at the hands of the person threatening them. A more appropriate starting point, in my view, would have been a term of imprisonment in the range of eight to nine months. I am satisfied the Judge erred by having regard only to cases which involved substantially more serious offending than the present case.
[43] As for Mr Tanuvasa’s guilty plea discount, I note that he was given the maximum discount allowed by the Supreme Court in Hessell v R (25 per cent).15 In that case, the Supreme Court said that a discount of 25 per cent is warranted where the accused pleads guilty “at the first reasonable opportunity”, namely “when an accused pleads as soon as he or she has had the opportunity to be informed of all of the implications of the plea”.16 I consider in this case, Mr Tanuvasa pleaded guilty at what was the first reasonable opportunity, namely when a summary of facts was agreed that he could accept as accurate. There was some significant negotiation in that respect and conflict in relation to some important facts. A discount of 25 per
cent was therefore, in my view, appropriate.
14 At [20].
15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
16 At [75].
[44] Applying the discount of 25 per cent to the starting point of between eight to nine months’ imprisonment, I consider that an end sentence of six months and two weeks’ imprisonment was appropriate.
[45] In that context, I am satisfied that the sentence imposed so significantly exceeded the appropriate sentence as to engage the appellate jurisdiction.
Home detention
[46] The Court of Appeal has recognised that the statutory hierarchy of sentencing options in s 10A of the Sentencing Act 2002 is “a blunt affirmation that prison is a measure of last resort”.17 When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.18 The court must not impose a sentence of imprisonment unless:19
(a) a sentence is being imposed for all or any of the following purposes: namely, accountability, promotion in the offender of a sense of responsibility for the harm, provision for the interests of the victim, denunciation, deterrence, or protection of the community; and
(b)those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles of s 8 of the Sentencing Act to the particular case.
[47] Where the offender is sentenced to a short-term period of imprisonment, as
Mr Tanuvasa is here,20 the court must consider whether to commute that sentence to
17 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
18 Sentencing Act 2002, s 16(1).
19 Sentencing Act 2002, s 16(2).
20 A short-term sentence is defined as a sentence of less than 24 months; see Sentencing Act, s
4(1); and Parole Act 2002, s 4(1).
one of home detention.21 The Court of Appeal in R v Iosefa has stated that home
detention is a “real alternative to imprisonment”, observing:22
It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.
[48] However, as the Court of Appeal noted in Fairbrother v R:23
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[49] The choice between home detention and imprisonment must be “intelligible”:
the relevant factors must be identified and weighed.24
[50] Mr Tanuvasa submits that the Judge gave insufficient weight to the pre- sentence report. However, Mr Tanuvasa’s numerous convictions for breach of orders and court-imposed conditions speak for themselves. The Judge was entitled to place more weight on Mr Tanuvasa’s history as reflected in his criminal conviction record than the opinions of the report writer. Moreover, as Mr Luck points out, the report writer appears to have erred in assessing the number of times Mr Tanuvasa had failed
to comply with community-based sentences and home detention in the past.25 I
further note that although Mr Tanuvasa argues he has made a positive lifestyle change and has not breached any court orders since 2010, that submission is inconsistent with his conviction for failing to answer bail in the context of the
present offending.26
21 See Sentencing Act 2002, s 15A; Carson v Police [2015] NZHC 2603 at [12].
22 R v Iosefa [2008] NZCA 453 at [41].
23 Fairbrother v R [2013] NZCA 340 at [30].
24 Fairbrother v R above n 23, at [31].
25 The report writer states that Mr Tanuvasa has been “reasonably compliant” with community- based sentences in the past, and that “[legal] action was taken on one occasion”. I do not consider that an accurate description of Mr Tanuvasa’s history of compliance with court orders.
26 See Police v Tanuvasa, above n 2, at [1].
[51] Mr Slade also submits that the Judge gave insufficient weight to his personal circumstances. While it would have been preferable for the District Court Judge to explain more fully why Mr Tanuvasa’s personal circumstances did not warrant a sentence of home detention, I am satisfied that the Judge did take those circumstances into account. Further, although the possibility of Mr Tanuvasa continuing his volunteer work, employment and support of his family favoured home detention, Judge Collins was entitled to find that these factors did not outweigh the need for a custodial sentence in this case.
[52] I emphasise that in this respect, the appeal is against the exercise of a judicial discretion, and it is not for an appellate court to substitute its view as to the appropriate outcome for that of the sentencing judge.27 I consider that in this case, Judge Collins did not err in the exercise of his discretion. He made a considered and principled choice between home detention and imprisonment, resting his decision ultimately on the ground that Mr Tanuvasa would be unlikely to comply with a sentence of home detention based on a lamentable history of non-compliance. Section 17 of the Sentencing Act indicates that the court is entitled to impose a
sentence of imprisonment if satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate. This was such a case.
Result
[53] I quash the sentence of nine months’ imprisonment and substitute a sentence of six months and two weeks’ imprisonment.
[54] I do not commute the sentence to one of home detention.
Muir J
27 Roberts v Police [2013] NZHC 2706 at [2]; Adams v R [2012] NZCA 515 at [11].
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