Tuifua v Police - [2015] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000213 [2015] NZHC 2426

BETWEEN
ISALELI TUIFUA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 September 2015

Counsel:

P Pati for Appellant
N Dobbs for Respondent

Judgment:

6 October 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 6 October 2015 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Manukau.
Crown Solicitor, Manukau.

TUIFUA v NZ POLICE [2015] NZHC 2426 [6 October 2015]

Introduction

[1] The appellant Isaleli Tuifua is a young man who has got into a lot of trouble through repeated criminal behaviour. On 21 July 2015 having pleaded guilty he was sentenced by Judge B A Gibson to two and a half years’ imprisonment on burglary, theft and driving charges. He now appeals.

Background

[2] The charges relate to offending between 18 April 2014 and 22 January 2015. There are 12 charges in total: unlawfully taking a motor vehicle (x 2), unlawfully getting into a motor vehicle (x 4), burglary (x 2), failing to stop for red and blue flashing lights (x 2), driving a vehicle in a dangerous manner, and operating a motor vehicle recklessly.

[3] Mr Tuifua turned 17 on 18 April 2014. The first offence occurred on that date. Mr Tuifua was in a stolen vehicle in Mangere. The vehicle was chased by Police before having a head-on collision on an on-ramp to the south-western motorway with an elderly driver. One conviction of unlawfully getting into a motor vehicle, one conviction of failing to stop and one conviction for reckless driving arose. The maximum sentences available were two years’ imprisonment for unlawfully getting into a motor vehicle, a fine of $10,000 for failing to stop, and three months’ imprisonment for operating a motor vehicle recklessly.

[4] On the second occasion on 27 May 2014 he failed to answer District Court bail at the District Court. Looking at bail breaches as a whole, between 30 May
2014 and 22 January 2015 he was arrested for breaching his bail conditions five times. Two of the breaches were accepted. It is unclear whether the other breaches were accepted or proven.

[5] On the third occasion on 1 September 2014 Mr Tuifua unlawfully got into a stolen Mazda vehicle. When he was in the vehicle he was approached by the Police. He drove the vehicle away from the Police and started speeding through city streets. He was travelling on occasions at about 100 kilometres per hour and defying the red and blue flashing lights and sirens. He went through a number of red lights at speed.

He stopped the vehicle at a kerb at an intersection causing damage to the left front wheel and bumper. He was charged with unlawfully getting into a motor vehicle, failing to stop for red and blue flashing lights and reckless driving.

[6] The fourth action which led to a conviction was Mr Tuifua’s participation in a burglary on 9…

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: [2015] NZHC 2426
Decision Date: 6 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Isaleli Tuifua appealed against his sentence of two and a half years’ imprisonment for burglary, theft, and driving charges. The appellant argued that the starting point for the residential burglary was too high, that the time spent on electronically monitored bail and restrictive bail conditions was not adequately discounted, and that the final sentence was manifestly excessive. Counsel for the appellant also argued that home detention was the most appropriate sentence. The court considered the starting point, which should have been approximately 18 months’ imprisonment for the residential burglary. The more serious burglary was the ram raid on the liquor shop, which would have warranted a starting point of approximately two years and three months’ imprisonment. The court also considered the other offending, including unlawful taking and getting into motor vehicles, dangerous driving, and breach of bail. The court determined that a starting point of five years’ imprisonment was appropriate. The court considered personal factors such as the appellant's youth, guilty pleas, and time spent on electronically monitored bail. The court decided that a discount of 25 per cent for youth and 20 per cent for guilty pleas was appropriate, resulting in an end sentence of three years and three months’ imprisonment. The court dismissed the appeal, concluding that a low sentence of imprisonment within the range would not adequately address the gravity of the offending.

Orders