Tuipulotu v Police - [2012] NZHC 1246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-139

CRI-2012-404-138 [2012] NZHC 1246

SIALE UVEA TUIPULOTU
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 5 June 2012

Counsel: G Vear for Appellant
F Nizam for Respondent

Judgment: 7 June 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 7 June 2012 at
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
G Vear, Public Defence Service, Henderson: Genevive.vear@justice.govt.nz
F Nizan, Meredith Connell, Auckland: farzana.nizam@meredithconnell.co.nz

TUIPULOTU V NEW ZEALAND POLICE HC AK CRI-2012-404-139 [7 June 2012]

[1] Siale Uvea Tuipulotu has appealed against a sentence of 12 months’ imprisonment imposed in relation to two charges of using a credit card to obtain a pecuniary advantage; a sentence of three months’ imprisonment in relation to one charge of receiving stolen property; and a sentence of one month’s imprisonment in relation to one charge of possession of methamphetamine. The sentences were imposed by Judge Gibson on 24 April 2012 and were to be served concurrently with each other and with a sentence of imprisonment being served by the appellant at the time of his sentencing.

[2] On 30 November 2011, Judge Wilson QC had sentenced the appellant to

18 months’ imprisonment on charges of unlawful possession of a pistol, possession of pipes for smoking methamphetamine, theft, and breaches of release conditions.

[3] The grounds of appeal are, first, that Judge Gibson failed to acknowledge and apply the totality principle in approaching the sentencing for offending which had occurred prior to the sentencing by Judge Wilson QC. Ms Vear argues that a total effective end sentence (for all eight charges), which she calculates to be one of two years three months’ imprisonment, was excessive bearing in mind the nature of the offending.

[4] As a second ground, it is argued that, because Judge Wilson QC and Judge Gibson both applied four month uplifts for the prior offending by the appellant, the actual uplift was some eight months’ imprisonment which was in the circumstances excessive.

[5] For the respondent, Ms Nizam argues that although Judge Gibson did not expressly refer to the totality principle in his sentencing notes, that omission may be excused bearing in mind the pressures on a District Court Judge in a busy sentencing list. She argues that the Court should infer from the Judge’s reference to the earlier, November 2011, sentencing that he in fact applied a totality approach. In any event, Ms Nizam submits that the Court should look at the result rather than the method by which it was reached. Further, she argues that the uplifts imposed were principled and appropriate in the circumstances.

Discussion

[6] I agree with counsel that the way in which the sentencing of the appellant in April this year should have been approached was for Judge Gibson to have, in a sense, put himself in the shoes of Judge Wilson QC in November 2011 as if that Judge had been sentencing the appellant for all of the offending which…

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: [2012] NZHC 1246
Decision Date: 7 June 2012

CaseChat Overview and Summary

The High Court of New Zealand recently heard an appeal from Siale Uvea Tuipulotu against a sentence imposed by Judge Gibson on 24 April 2012. The appellant was sentenced to 12 months' imprisonment for two charges of using a credit card to obtain a pecuniary advantage, three months' imprisonment for receiving stolen property, and one month's imprisonment for possession of methamphetamine. These sentences were to run concurrently with each other and with a sentence of imprisonment being served by the appellant at the time of his sentencing. The appellant had previously been sentenced by Judge Wilson QC on 30 November 2011 to 18 months' imprisonment on charges of unlawful possession of a pistol, possession of pipes for smoking methamphetamine, theft, and breaches of release conditions. The appeal was based on two grounds: first, that Judge Gibson failed to acknowledge and apply the totality principle in his sentencing approach; and second, that the uplifts applied for prior offending by the appellant were excessive. The court found that although Judge Gibson did not expressly refer to the totality principle, his sentencing approach was in line with the principles set out in previous cases. The court also found that the uplifts applied were appropriate in the circumstances. The appeal was dismissed.

Orders