Tui v Police - [2020] NZHC 635

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-42

CRI-2019-488-43 [2020] NZHC 635

BETWEEN
EUGENE JAMES TUI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 March 2020

Counsel:

D J Watkins for Appellant M B Smith for Respondent

Judgment:

24 March 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 March 2020 at 4:00 pm

Registrar/Deputy Registrar

Solicitors:
Watkins Law (Kaikohe) for Appellant
Marsden Woods Inskip & Smith (Whangarei) for Respondent

TUI v POLICE [2020] NZHC 635 [24 March 2020]

Introduction

[1] Mr Tui appeals his sentence of 15 months’ imprisonment imposed on him by Judge DG Harvey on 21 November 2019.1 Mr Tui submits the sentence is manifestly excessive.

[2] I will examine the circumstances relevant to Mr Tui’s sentence to see whether Judge Harvey was in error such that a different sentence should be substituted.

Background

[3] Mr Tui has a bad record of driving under the influence of alcohol and driving while disqualified. He is a man of mature years having been born on 28 April 1976. He came before Judge GL Davis on 5 July 2019 for sentencing on his seventh drink driving conviction. He was also before Judge Davis for sentencing on his seventh and eighth charges of driving whilst disqualified.2 The eighth such charge arose from driving while he was on bail for the seventh such charge.

[4] Judge Davis recognised that with this record of persistent offending, and with the failure of previous sentences of imprisonment or electronic monitoring to deter or rehabilitate, he had few options available to him. The Judge said:

[19] The thing that is going to save you today is that there is available to you the alcohol interlock device. I am hopeful that a combination of a sentence that locks you down and has conditions there about non-consumption of alcohol, coupled with the alcohol interlock device on the car is going to provide the appropriate public safety to the Court’s satisfaction.

[5] The Judge adopted a starting point of 28 months’ imprisonment, being 12 months’ on the drink driving charge plus 16 months’ imprisonment for the two driving whilst disqualified charges. The Judge gave Mr Tui a reduction of 25 percent for his pleas of guilty, making an end sentence of 21 months’ imprisonment. The Judge then commuted that sentence to one of 10 months’ home detention. Conditions attached to that sentence included a prohibition on possessing or consuming alcohol.

1 Department of Corrections v Tui [2019] NZDC 23471.
2 Police v Tui [2019] NZDC 13064.

[6] Mr Tui lasted on home detention until 24 September 2019. On that date he removed his bracelet and absconded. He surrendered to police some two days later. Alcohol featured in the absconding from home detention. All that Judge Harvey did was take Mr Tui’s sentence back to the sentence of imprisonment that would have been imposed by Judge Davis and then rounded downwards (and in Mr Tui’s favour)…

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 Tui v Police

Details

AGLC: Tui v Police [2020] NZHC 635
Case: [2020] NZHC 635
Decision Date: 24 March 2020

CaseChat Overview and Summary

The appeal heard by the High Court was brought by Eugene James Tui against the New Zealand Police, contesting the 15-month imprisonment sentence imposed on him by Judge DG Harvey on November 21, 2019. Tui argued that the sentence was manifestly excessive. The court was tasked with determining whether the sentence imposed by Judge Harvey was in error and warranted a different sentence.

The legal issues before the court were whether Judge Davis's calculation of a 21-month imprisonment period was manifestly excessive and whether the Judge erred by not ordering a Section 27 cultural report. The court considered if the starting point of 28 months' imprisonment was too high, given the significant aggravating factor of Tui's eighth driving while disqualified charge being committed while on bail for the seventh such charge. Additionally, the court examined whether the absence of a Section 27 report would have mitigated culpability to an extent that would render the sentence manifestly excessive.

The court found that the end sentence of 10 months' home detention was not manifestly excessive and was merciful. It was imposed by an experienced Judge in conjunction with a direction as to the use of an alcohol interlock device, in an attempt to give Tui the best chance of breaking the cycle of his offending. The court concluded that Judge Harvey could not be faulted for simply resentencing to the term of imprisonment, making allowance for the period already served on home detention, which would have been imposed by Judge Davis had he not commuted it to a sentence of home detention. The appeal was dismissed.

The court emphasised that it is the end sentence that determines whether it is manifestly excessive, and in this case, the end sentence was not. The court also dismissed the argument regarding the Section 27 cultural report, stating that there is no entitlement to such a report and that its absence would only be relevant to the appeal if it could be established that the contents of the report would have mitigated culpability to an extent making the end sentence manifestly excessive. In this case, the report did not establish such a nexus.

Orders