Tanuvasa v Police - [2017] NZHC 939

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 Respondent

Judgment:

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.

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.

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Details

Case: [2017] NZHC 939
Decision Date: 8 May 2017

CaseChat Overview and Summary

Fred Tanuvasa, the appellant, was sentenced to nine months' imprisonment for threatening to cause grievous bodily harm and failing to answer bail. He appeals the sentencing decision, arguing that the starting point was too high and that a sentence of home detention was more appropriate. The appeal was heard by Muir J in the High Court of New Zealand. The central legal issues were whether the starting point was correctly assessed and whether home detention was the more appropriate sentence. The court considered the seriousness of the threat, the appellant's history of non-compliance with court orders, and the pre-sentence report. Muir J found that the starting point of 12 months' imprisonment was too high, and the appropriate starting point should have been eight to nine months' imprisonment. The court also found that the appellant's history of non-compliance with court orders justified the sentence of imprisonment. The appeal was allowed in part, and the sentence was reduced to six months and two weeks' imprisonment. The court did not commute the sentence to home detention.

Orders