Tuffey v Police - [2014] NZHC 591

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-000001
CRI-2014-470-000002

CRI-2014-470-000003 [2014] NZHC 591

BETWEEN MARC TUFFEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 March 2014

Appearances: D McWilliam for Appellant
R Jensen for Respondent

Judgment: 27 March 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Tauranga
Public Defence Service, Tauranga

TUFFEY v NZ POLICE [2014] NZHC 591 [27 March 2014]

Introduction

[1] On 16 January 2014 in the District Court at Tauranga Judge Ingram sentenced Marc Tuffey to imprisonment for three years, nine months.1 The sentence was imposed in relation to several offences: burglary, unlawfully getting into a motor vehicle, receiving and intentional damage.

The sentence

[2] The sentence was structured in the following way. In relation to the burglary the Judge took a start point of three years, then uplifted that for Mr Tuffey’s personal aggravating factors by nine months, before applying a credit of 11 months for the guilty plea. That produced a sentence of two years, 10 months for the burglary. The Judge then imposed a concurrent sentence of nine months for the charge of unlawfully getting into a motor vehicle as the offending occurred around the same time as the burglary and the vehicle appears to have been used in the course of the burglary.

[3] The burglary and unlawfully getting into offences occurred on 4 and 5

September 2013. The Judge then addressed the sentence for the receiving offences, which occurred between 1 and 7 October 2013. Mr Tuffey had previously sought a sentence indication in relation to the three charges of receiving. On 6 November
2013 Judge Ruth in the District Court at Hamilton had given a sentence indication, taking into account guilty pleas, of 11 months’ imprisonment. Judge Ingram felt constrained to accept and apply that sentence for the receiving charges but imposed that sentence of 11 months cumulatively bearing in mind the offending was of a different nature and occurred in completely different circumstances. The end result was the sentence of three years, nine months’ imprisonment.

The appeal

[4] Mr Tuffey appeals that sentence. Mr McWilliam confirmed that the appeal is directed solely at the sentence imposed for the burglary offending and the effect that
it had on the ultimate end sentence. He accepts that the sentence of 11 months for

1 NZ Police v Tuffey DC Tauranga CRI-2013-019-005452, CRI-2013-019-5236; CRI-2013-070-
3924, 16 January 2013.

the receiving charges cannot be challenged and nor can the fact the Judge treated that offending as requiring a cumulative sentence.

[5] Mr McWilliam submits that, given the circumstances of this burglary a starting point of no more than two years was warranted and that even taking account of Mr Tuffey’s personal circumstances and previous history the uplift should have been no more than six months. He submitted the Judge effectively double counted by taking a starting point of three years and uplifting that by nine months for Mr Tuffey’s previous offending, particularly his burglary offending.

[6] Mr Jensen effectively accepted that there may…

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 Tuffey v Police

Details

AGLC: Tuffey v Police [2014] NZHC 591
Case: [2014] NZHC 591
Decision Date: 27 March 2014

CaseChat Overview and Summary

In Tuffey v Police, Marc Tuffey appealed the sentence imposed by Judge Ingram in the Tauranga District Court. The sentence was three years, nine months imprisonment for burglary, unlawfully getting into a motor vehicle, and receiving charges. The appeal focused on the sentence for the burglary, arguing that the starting point was excessive and that there was double counting of personal aggravating factors. Counsel for the appellant argued that the starting point should not exceed two years, six months, and the uplift for personal circumstances should not exceed six months. The Crown accepted that there might have been some double counting but argued that the sentence was supported by relevant case law.

The High Court examined the nature of the burglary and concluded that it did not have the particularly aggravating features of residential burglaries at night. The Court noted that the starting point for similar commercial burglaries was significantly less. The Court accepted that some uplift was warranted due to the appellant's personal circumstances and previous convictions, but it concluded that the starting point should be no more than two years, six months, and the uplift should not exceed six months. The Court found that the Judge's approach effectively amounted to double counting, leading to a manifestly excessive sentence.

The Court quashed the sentence for the burglary and replaced it with two years, four months imprisonment, while maintaining the concurrent nine-month sentence for unlawfully getting into a motor vehicle and the cumulative 11-month sentence for receiving charges. The total sentence was adjusted to three years, three months imprisonment. The appeal was allowed, and the sentence was reduced accordingly.

Orders