Tito-Furze v Police - [2021] NZHC 2784

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-34

[2021] NZHC 2784

BETWEEN
KARN TITO-FURZE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 October 2021 (via AVL)

Appearances:

J C Hannam for Appellant

L A Blencowe for Respondent

Judgment:

18 October 2021

JUDGMENT OF ISAC J

Introduction

[1] The appellant, Mr Tito-Furze, was sentenced to 18 months’ imprisonment on a range of charges.1 He now appeals his sentence.

The offending

[2] Over a three-week period Mr Tito-Furze committed 15 offences. At the centre of them are his use of methamphetamine.

20 April 2021

[3] In the afternoon of 20 April 2021, Mr Tito-Furze was driving a vehicle in New Plymouth. Police had become aware of his driving as a result of an incident the day before, and subsequent traffic complaints from members of the public.

1 Police v Tito-Furze [2021] NZDC 17649.

TITO-FURZE v NEW ZEALAND POLICE [2021] NZHC 2784 [18 October 2021]

[4] Police stopped the appellant’s vehicle using road spikes after he failed to stop when signalled.

[5] After his arrest, the defendant underwent a compulsory impairment test, and a subsequent blood test was found to contain methamphetamine.

[6]Mr Tito-Furze pleaded guilty to a charge of driving while impaired.2

26 April – 3 May 2021

[7] On six separate occasions between 26 April and 3 May 2021, Mr Tito-Furze drove into service stations and stole petrol. The total value of petrol stolen was
$1289.32. Three of the offences related to stealing fuel worth $281.74, $352.91 and
$423.61 respectively. Of note, however, is that he returned to steal petrol from two of the service stations. Five of the six stations were operated by Z Energy.

[8]Mr Tito-Furze pleaded guilty to a further six charges of theft (under $500).3

15 May 2021

[9] In the early hours of 15 May 2021 the owner of a motor vehicle parked in New Plymouth had her car stolen. Later that day Mr Tito-Furze drove the car to a service station in Stratford and stole $61.01 of petrol. It was another Z Energy station.

[10] At 7.50 pm the same day Mr Tito-Furze and a co-offender went to the Z Energy service station in Rata Street, Inglewood. This was the same station he stole petrol from on 3 May 2021.

[11] When he arrived, he was wearing a hood over his head and a mask over his face. The number plates of the vehicle that had been stolen earlier that day had been removed. These steps had been undertaken to conceal Mr Tito-Furze’s identity.

2 Land Transport Act 1998, s 57(A)(1) – maximum penalty 3 months’ imprisonment or a $4,5000 fine.
3 Crimes Act 1961, ss 219 and 223(d) – maximum penalty 3 months’ imprisonment.

[12] Mr Tito-Furze and the co-offender then set about pumping petrol from two bowsers into two large 200 litre plastic drums situated in the rear of the vehicle. When a service station attendant intervened, they drove away with $709.78…

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: [2021] NZHC 2784
Decision Date: 18 October 2021

CaseChat Overview and Summary

In Tito-Furze v Police, the appellant, Mr Tito-Furze, was sentenced to 18 months’ imprisonment for a range of charges related to methamphetamine use, including driving while impaired, theft of petrol, and dangerous driving. He appeals his sentence. The legal issues in this appeal are whether the starting point adopted by the District Court was too high and whether there should have been a deduction made to reflect the appellant’s drug addiction.

The Court found that the starting point for the theft charges was appropriate given the 15 charges in total and the maximum penalties for the more serious offences. The Court also found that the starting point for the offending on 15 May 2021 was appropriate, as the appellant's dangerous driving created a serious risk of harm to the public and police. Additionally, the Court found that there was no need for a discount to reflect the role of the appellant’s addiction in the offending, as there was no realistic prospect of drug rehabilitation or willingness on the part of the defendant to address their addiction. The Court held that the protection of the community was the dominant consideration at sentencing.

The appeal is dismissed. Mr Tito-Furze’s sentence of 18 months’ imprisonment is upheld.

Orders