Tapueluelu v Police
[2025] NZHC 566
•11 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-707
[2025] NZHC 566
BETWEEN JAMES TAPUELUELU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 March 2025 Appearances:
R Abbott for Appellant
F Ganchi for Respondent
Judgment:
11 March 2025
ORAL JUDGMENT OF BECROFT J
[Appeal against sentence]
Solicitors/Counsel:
Meredith Connell, Auckland R Abbott, Barrister, Auckland
TAPUELUELU v NEW ZEALAND POLICE [2025] NZHC 566 [11 March 2025]
What this appeal is about
[1] James Tapueluelu appeals a sentence of 40 months’ imprisonment in respect of three charges, imposed by Judge Fraser in the Waitakere District Court on 22 November 2024.1
[2] The sentence was imposed first in respect of a charge of strangulation2 and a related charge of assault on a person in a family relationship,3 to which Mr Tapueluelu pleaded guilty.
[3] Second, in respect of a charge of assault with a weapon4 in respect of the same woman, his partner, for which Mr Tapueluelu was found guilty after a defended hearing.
[4] Mr Tapueluelu challenges his sentence as being manifestly excessive. There is no dispute taken with the starting point. However, Ms Abbott who has presented the appeal responsibly and persuasively, maintains there are four errors in the component parts of the sentence that cumulatively result in a sentence that was manifestly excessive, and which justify the Court’s intervention. In particular, it is alleged:
(a)there should have been allowance for the guilty plea;
(b)Mr Tapueluelu’s time on bail with a 7 pm to 7 am curfew, for 19 months, should have been recognised with a reduction of perhaps three months;
(c)Mr Tapueluelu’s rehabilitation efforts should have been explicitly recognised with a reduction of 10 per cent; and
(d)for “good character” there should have been reduction of five per cent.
1 New Zealand Police v Tapueluelu [2024] NZDC 28731 [Judgment under appeal].
2 Crimes Act 1961, s 189A. The maximum penalty is seven years’ imprisonment.
3 Section 194A. The maximum penalty is two years’ imprisonment.
4 Section 202C. The maximum penalty is five years’ imprisonment.
[5] The police, represented by Mr Ganchi, oppose the appeal. The police emphasise that the issue for the Court is essentially whether the end sentence is manifestly excessive. Mr Ganchi’s view is that plainly it is not.
[6] I have come to a clear view that this appeal, while raising some genuinely arguable points, cannot succeed. I briefly set out my reasons.
Mr Tapueluelu’s offending
[7] The offending relates to the same victim and occurred on two days separated by a 20 month gap.
13 August 2021 offending
[8] Mr Tapueluelu had a disagreement with his partner about their three-month- old daughter. He became angry and started throwing things. He then used both hands to grab his partner around the throat, lifting her off the ground. The victim was unable to breathe for about 10 seconds. He dropped her and punched her two or three times to the head. She tried to retreat but Mr Tapueluelu followed and berated her. The victim was then dragged by the hair from the bottom of the stairs to the garage before Mr Tapueluelu left.
13 April 2023 offending
[9] Mr Tapueluelu’s partner had just arrived home after finishing her night shift. I understand this would have been around 8 am. Unaware that Mr Tapueluelu was also home and listening, she began discussing her desire to leave the relationship with her cousin. Mr Tapueluelu was not in breach of his bail at that time. He then loudly confronted his partner. She confirms that she initially ignored him, but he became louder as he verbally abused her and threatened to smash up the house. He began to throw items at her, despite the fact she was holding their baby son, whom she shielded. Mr Tapueluelu then struck his partner in the head with a steel pot while she was holding the child. The pot was dented by this force.
The timeline is relevant
[10] On 13 August 2021, Mr Tapueluelu was granted bail for the first 2021 alleged offending which had resulted in two charges being laid. There was no curfew. He was living with his mother.
[11] On 23 February 2023, he pleaded guilty to the two charges (including strangulation). I must say, somewhat surprisingly, he was granted bail. I say surprisingly because given a starting point of imprisonment that would have been taken for the strangulation charge, a remand in custody might have been expected. However, I am told by Ms Abbott that Mr Tapueluelu was then doing well on a course with job prospects, so some mercy was extended to him.
[12] On 13 April 2023, there was the second offending to which Mr Tapueluelu was eventually found guilty. He was readmitted to bail, again, perhaps surprisingly but on the basis that there were good prospects of rehabilitation. There was a curfew from 7 pm to 7 am.
[13] On 29 February 2024, Mr Tapueluelu was found guilty of the second offending against his partner. He was again granted bail, even though I would have thought a sentence of imprisonment, by that time, would have been inevitable. He was sentenced on 22 November 2024.
Approach on appeal
[14]The Court must allow Mr Tapueluelu’s appeal if satisfied that:5
(a)there was a material error in the sentence imposed on conviction;6 and
(b)a different sentence should be imposed.
[15]In any other case, the appeal must be dismissed.7
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] per Ellen France J.
7 Section 250(3).
[16] It is well established that the imposition of a “manifestly excessive” sentence constitutes a material error that would justify allowing an appeal.8 A sentence will be manifestly excessive if it is significantly more severe than it should have been, having regard to the seriousness of the offending and the culpability of the offender.9
[17] When determining whether a sentence is manifestly excessive, the focus is on the end sentence rather than the process by which it was reached.10
[18] It is not for an appellate court to “tinker” with a sentence imposed where the end sentence is within the available range and can be justified by the application of accepted sentencing principles.11 An appeal is not a second shot at sentencing.12
Analysis
[19] I made clear to Ms Abbott, after assessing her written submissions, that the only issues that I felt were “live” were whether there should have been some allowance for a guilty plea (albeit at the very last minute) and for the time Mr Tapueluelu had spent on bail. I record that no issue is taken with the starting point of 39 months’ imprisonment.13
Rehabilitation and remorse
[20] As to rehabilitation and remorse, the Judge acknowledged those factors and gave them what he said was acknowledgement in a “minimal way”, (two months’ reduction) given the limited programme work Mr Tapueluelu had completed. I am advised at the time of the second offending, he was attending the Man Alive programme but he failed to complete the programme so it was hardly a successful involvement. At the time of sentencing, Mr Tapueluelu had completed 16 out of 19
8 Tutakangahau v R, above n 6, at [35]. Cited in Noda v R [2024] NZCA 433 at [8].
9 Grey v Police [2023] NZHC 2065 at [20] per Davison J; Manning v R [2020] NZHC 626 at [18] per Wylie J; Barton v R [2015] NZHC 2643 at [14] per Brewer J; Visser v Police [2015] NZHC 3275 at [12] per Thomas J.
10 Noda v R [2024], above n 8, at [8].
11 Grey v Police, above n 9, at [20].
12 Polyanszky v R [2011] NZCA 4 at [17] per Chambers J.
13 Judgment under appeal at [22]: The starting point comprised two years’ imprisonment for the strangulation charge, six months for the assault and nine months for the assault, cumulated. The Judge thought “in terms of totality that is probably about right”.
sessions with a Pacific Island Fono course but he did not complete the remaining three sessions including his graduation which he missed. He was exited from the programme.
[21] In my view, the Judge’s approach to acknowledging rehabilitation/remorse was well within range, and while small, cannot be faulted.
Good character
[22] As regards good character, I accept that there are limited previous convictions primarily related to somewhat historical excess breath alcohol driving charges in 2013 and 2014. However, this was serious offending. It was repetitive, on the same partner, while he was on bail. His offending against his partner was not a one-off isolated fall from grace. In my view, the Judge was correct not to provide a discount for good character.
[23] I record that Ms Abbott responsibly did not pursue those two matters with vigour.
Guilty plea
[24] As to the guilty plea, it is rare for there to be no deduction provided. In this case, the Judge made clear that having been found guilty in respect of the second set of offending, and having pleaded guilty, by inference at the last minute in respect of the first, Mr Tapueluelu was to get “no credit for his guilty pleas”.
[25] I accept, in general, where pleas are very late and where a conviction seems certain—as was the case here, little or no discount need be given. That said, in the context of relationship violence, it is sometimes a big step for a defendant to publicly own his offending by indicating he is prepared to come to terms with it. This can be very significant for the victim. On any analysis, this was a very late plea. The victim had been informed and was not at court for the unnecessary defended hearing.
[26] Nevertheless, it seems to me that some allowance could have been given. Mr Tapueluelu’s guilty plea saved the victim trauma and saved court time. There are policy reasons that might favour a small recognition.
[27] In my view the most that could have been given was five per cent—which might be regarded as generous. That would only equate to about a two month reduction from the sentence the Judge imposed. That effectively constitutes “tinkering” with the sentence. Even if I accept such a deduction should have been made, it did not result in a manifestly excessive sentence.
Time spent on bail
[28] As for an allowance for time on bail, that is statutorily required when the bail is electronically monitored bail, which is not this case. Here, there was a 7 pm to 7 am curfew in place as from the time of the second offending.
[29] Mr Tapueluelu’s second offending therefore took place in the context of already having been granted bail, which was a significant indulgence by the court, in respect of offending against his partner, to which he had pleaded guilty.
[30] On reflection, I agree with Mr Ganchi that Mr Tapueluelu’s offending while on bail should be regarded as serious. The one person who should have been protected from Mr Tapueluelu, in terms of his bail conditions, would be his partner and yet it was this very partner whom he assaulted again while on bail.
[31] For those reasons, I think the Judge was correct to provide an uplift of three months in terms of that personal aggravating factors and there was every justification for not reducing the sentence because of the 19-month curfew.
Conclusion
[32] The end result of this appeal is that the most that could be said in its favour is that there could well have been some small allowance for the guilty plea. But even then, I doubt whether the Judge, in these circumstances, could have been said to be plainly or clearly in error for not doing so.
[33] The real question is always, was the sentence of three years four months’ imprisonment manifestly excessive? Ms Abbott, again responsibly, does not take issue with the structure of the sentencing, only some of its component parts. The focus must be on the end sentence rather than the process by which the sentence was reached. Here, the end sentence could not be said to be manifestly excessive.
[34] As I say, the most that could be achieved in this appeal is to reduce the sentence by a further two months. That, in my view, would constitute “tinkering” as the end sentence is already within the available range and can be justified by the application of accepted sentencing principles.
[35] I should resist any temptation to turn this appeal into a “second shot at sentencing”. In my view this appeal, while well argued, for the reasons I have outlined, must and does fail. It is dismissed.
Becroft J
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