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Tuhi v The Queen

Tuhi v The Queen

Case [2021] NZHC 459 10 March 2021

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2021-441-000002

[2021] NZHC 459

BETWEEN
GARY DUDLEY TUHI

Appellant

AND

THE QUEEN

Respondent

CRI 2021-441-000007

BETWEEN

JUDAS JAMES RARERE
Appellant

AND

THE QUEEN

Respondent

Hearing: 9 March 2021

Appearances:

E J Forster for Mr Tuhi

W R Hawkins for Mr Rarere
S B Manning for the Respondent

Judgment:

10 March 2021

JUDGMENT OF VAN BOHEMEN J

Solicitors/Counsel:
E J Forster, Barrister, Hastings
Bramwell Bate Lawyers, Hastings
Crown Solicitors Napier, Elvidge & Partners

TUHI & RARERE v R [2021] NZHC 459

[1] Gary Tuhi and Judas Rarere each appeal the sentences imposed on them by Judge B M Mackintosh on 21 January 2021 when they were sentenced together in respect of the same factual circumstances.

[1]On 21 January 2021, Mr Rarere and Mr Tuhi each pleaded guilty to charges of:

(a)Aggravated robbery;1 and

(b)Failing to comply with a direction of a medical officer of health.2

[2] In addition, Mr Tuhi pleaded guilty to an additional charge of failing to comply with a direction of a medical officer of health.3

[3] Mr Tuhi was sentenced to three years, five months and two weeks’ imprisonment after having accepted a sentence indication with a starting point of five years and nine months’ imprisonment.

[4] Mr Rarere was sentenced to three years and five months’ imprisonment after having accepted a sentence indication with a starting point of five years and eight months’ imprisonment.

[5] Both appellants appeal their sentences on the basis that the starting point adopted by Judge Mackintosh was too high and led to a manifestly excessive end sentence. Mr Rarere also appeals the sentence on the basis that the discount given for cultural factors was inadequate.

[6]The Crown opposes both appeals.

Relevant offending

[7] On 23 April 2020, during the COVID-19 national Level 4 lockdown, Mr Rarere and Mr Tuhi, together with an unidentified associate, came to the back door of a property in Napier where the complainants, four flatmates aged in their twenties,

1      Crimes Act 1961, s 235(b). Maximum penalty 14 years’ imprisonment.
2      Health Act 1956, s 72(d). Maximum penalty six months’ imprisonment or a $4,000 fine.
3      Ibid.

resided. After asking for one of the occupants by name, Mr Tuhi entered the address followed by Mr Rarere and the third associate.

[8] Mr Tuhi and Mr Rarere and the four complainants were not personally known to each other but Mr Tuhi commented that someone in the house had sold cannabis to his niece.

[9] The four complainants were gathered into the lounge by the applicants and forced to lie face-down on the floor while Mr Rarere held a knife. Mr Rarere stood guard over the complainants while Mr Tuhi and the other associate collected various items valued at approximately $2,500 from around the house, including a quantity of cannabis and cell phones belonging to the complainants. While standing guard, Mr Rarere threatened to assault the complainants and kicked the ground…

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 Tuhi v The Queen

Details

AGLC: Tuhi v The Queen [2021] NZHC 459
Case: [2021] NZHC 459
Decision Date: 10 March 2021

CaseChat Overview and Summary

Gary Tuhi and Judas Rarere each appealed their sentences imposed by Judge B M Mackintosh on 21 January 2021, arguing that the starting point was too high and led to a manifestly excessive end sentence. Rarere also appealed the adequacy of the cultural discount. The Crown opposed the appeals. The appellants argued that the starting point of five years was too high, citing various cases as precedents for a lower starting point. The Crown argued that the starting point was appropriate, citing R v Mako as the guideline decision for aggravated robbery and maintaining that the circumstances of the case aligned with the scenario set out in Mako. The Court found that the starting points of five years set by Judge Mackintosh were appropriate, taking into account the differences between the current case and the circumstances described in Mako. Regarding the cultural discount, the Court found that the 15 per cent discount given to Rarere was appropriate and consistent with discounts given in comparable cases, given the seriousness of the offending and Rarere's criminal history. The uplifts of six months for previous convictions were considered excessive, and the sentences were adjusted to three years and three months' imprisonment for Tuhi and three years, two months and two weeks' imprisonment for Rarere.

The appeals against sentence on the basis the starting point of five years’ imprisonment was manifestly excessive and, in Rarere’s case, that the deduction for cultural factors was insufficient, are dismissed. However, because the uplifts of six months to the starting points were excessive, the sentences of Tuhi and Rarere are quashed and are replaced by the following sentences: (a) Tuhi: a term of three years and three months’ imprisonment; (b) Rarere: a term of three years, two months and two weeks’ imprisonment.

Orders