Tui v The Queen - [2021] NZHC 2168

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-483-10

[2021] NZHC 2168

BETWEEN
CORY JAMES TUI

Appellant

AND

THE QUEEN

Respondent

Hearing:
22 July 2021 [adjourned]

11 August 2021 (via AVL)

Appearances:

M McGhie for Appellant R Benic for Respondent

Judgment:

19 August 2021

JUDGMENT OF ISAC J

Introduction

[1] Mr Tui appeals against his sentence of 15 months’ imprisonment after pleading guilty to one charge of conspiracy to supply a class B drug1 (cannabis oil in the form of two pills) and one charge of possession of a Class B drug, being cannabis oil.2

[2] Counsel for Mr Tui submits an end sentence of around eight to nine months’ imprisonment would better reflect the relative seriousness of the offending and the personal circumstances of Mr Tui. The respondent’s position is that the end sentence of 15 months’ imprisonment falls squarely within range of other sentencing decisions imposed for similar offending involving the smuggling of small quantities of Class B drugs into a custodial environment.

1 Misuse of Drugs Act 1975, s 6(2A), maximum penalty 10 years’ imprisonment.
2 Section 7(1)(a) and 7(2), maximum penalty three months’ imprisonment or $500 fine.

TUI v R [2021] NZHC 2168 [19 August 2021]

[3] I have concluded that the appeal should be allowed, and the sentence imposed in the District Court substituted. The error in approach was that the starting point adopted was too high, and consequently a different sentence should have been imposed. Given the short-term nature of the sentence, the error led to a manifestly excessive sentence.

[4] I adjourned the first hearing of the appeal at Mr Tui’s request so he could consider whether he might wish to challenge his conviction for conspiracy for supply in light of relevant authority that suggested defendants could not enter into a conspiracy to supply drugs to themselves.3 Following the adjournment, Mr Tui through counsel advised the Court that he wished to proceed with the sentence appeal in light of the fact that the entry of his plea was part of an agreed resolution with the Crown that saw other serious charges withdrawn.

Background

[5] Mr Tui was an inmate at Whanganui Men’s Prison between 1 September 2020 and 3 October 2020. Between 1 September and 2 September, Mr Tui spoke with his father over the prison phone system and arranged for him to deliver two packages containing cannabis oil to the address of a Ms Jessie Edwards.

[6] Ms Edwards attempted to enter the Whanganui Men’s Prison to visit another inmate with two capsules of cannabis oil concealed in her mouth. She was intercepted by Corrections staff. This gave rise to the charge of conspiracy to supply a Class B drug.4

[7] Mr Tui then arranged for his father to supply a Ms Paris Tahau with cannabis oil to bring to prison. She and his father visited Mr Tui at prison, and Ms Tahau was observed by Corrections staff passing a concealed item to…

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 The Queen

Details

AGLC: Tui v The Queen [2021] NZHC 2168
Case: [2021] NZHC 2168
Decision Date: 19 August 2021

CaseChat Overview and Summary

In the case of Tui v The Queen, Cory James Tui appealed his sentence of 15 months’ imprisonment, which was imposed after he pleaded guilty to charges of conspiracy to supply a class B drug (cannabis oil in the form of two pills) and possession of a Class B drug, being cannabis oil. Tui argued that an end sentence of around eight to nine months’ imprisonment would better reflect the relative seriousness of the offending and his personal circumstances. The respondent maintained that the sentence fell within the range of other sentencing decisions imposed for similar offending involving the smuggling of small quantities of Class B drugs into a custodial environment. The legal issues before the court were whether the starting point was too high and whether the Judge erred in failing to consider personal mitigating factors. The court concluded that the appeal should be allowed and the sentence imposed in the District Court substituted. The error in approach was that the starting point adopted was too high, and consequently a different sentence should have been imposed. The court substituted an end sentence of 11 months’ imprisonment, to be served cumulatively on Tui’s current sentence.

Orders