Tuikolovatu v R
[2012] NZCA 203
•21 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA255/2012 [2012] NZCA 203 |
| BETWEEN MAKA TUIKOLOVATU |
| AND THE QUEEN |
| Hearing: 15 May 2012 |
| Court: O'Regan P, White and Miller JJ |
| Counsel: M B Meyrick for Appellant |
| Judgment: 21 May 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by Miller J)
The appellant brings this appeal against a sentence of 11 months imprisonment for burglary,[1] contending that the District Court Judge failed to give him credit for time spent on restrictive bail conditions.
[1] R v Tuikolovatu DC Manukau CRI-2011-092-10698, 27 April 2012.
The offence was a brazen daylight burglary in which the appellant and his associates forced entry to a house, placed electronic equipment outside, then left swiftly with more portable items when they saw that they were being observed by a witness. They returned some time later for the electronic equipment, but were seen by the victim of the burglary, who had by now returned home. When apprehended the appellant denied all involvement.
The appellant was arrested on 6 July 2011, and was remanded in custody for breaches of bail on 10 January 2012. Between those dates he was subject to a 24 hour curfew on the burglary, but the position is complicated because in the intervening period he had been arrested on another matter, which is still pending, and also bailed on a 24 hour curfew. Some 12 weeks spent on the 24 hour curfew are attributable to the present charge.
Judge Johns took a starting point of 12 months imprisonment, referring to Curry v R.[2] She added nothing for personal aggravating factors, although the appellant offends very regularly. His convictions include several for dishonesty but none for burglary. Nor did she add anything for his relationship with the Killer Beez gang, although she recognised that so long as he retains that association he will present a risk to the public. She noted that the appellant had now spent some time on remand for this matter, but did not give specific credit for restrictive bail conditions.
[2] Curry v R [2010] NZCA 491.
The appeal confronts two insurmountable obstacles. The first is that, as Mr Boldt submitted, an offender who wants credit for restrictive bail conditions should be able to show that he complied with them. This appellant did not. Although well aware that he remained on a 24 hour curfew throughout, he was found to be absent from the address on at least three occasions, on one of which he had forged a doctor’s certificate to evidence his claim that he left to attend a medical centre.
Second, the ultimate question is whether the sentence is manifestly excessive. Mr Meyrick could not seriously contend that it was. As Mr Boldt submitted, a starting point of 15 months imprisonment might have been adopted[3] and the appellant might have faced an uplift for previous convictions.
[3] Bennett v R [2012] NZCA 173.
It appears that this appeal was motivated by the appellant’s desire to be present at the imminent birth of his child, but that desire, laudable though it may be, cannot justify interfering with an otherwise appropriate sentence.
The appeal is dismissed.
Solicitors:
Berman & Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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