Tuki v Police - [2020] NZHC 806

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2020-488-000006

[2020] NZHC 806

IN THE MATTER OF an appeal against sentence

BETWEEN

JAYMIE URSULLA TUKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 April 2020

Counsel:

A S Bloem and A J Gordon for the Appellant S T Patia for the Respondent

Judgment:

24 April 2020

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 24 April 2020 at 12.30 pm.

Registrar/Deputy Registrar

Solicitors: Bloem and Associates, Auckland
Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

TUKI v POLICE [2020] NZHC 806 [24 April 2020]

[1] Ms Tuki was sentenced to 16 months’ imprisonment for a raft of dishonesty offences, breaching her release conditions and failing to report.1 She appeals on the grounds that the Judge did not give her credit for time spent on EM bail, the 15 per cent discount for a guilty plea was too low, and the Judge failed to consider home detention as the least restrictive sentence in the circumstances.

Offending

[2] Ms Tuki is 34 years of age. She is of Ngāti Raukawa descent. She has four children, the eldest of whom is an adult now. None of her children reside with her permanently, but she had periodic care of her youngest children prior to her incarceration.

[3] Ms Tuki has an extensive criminal history, involving mostly dishonesty offending. She has amassed 155 convictions, with 99 prison sentences. Between 2017 and 2019, Ms Tuki accumulated 15 theft and shoplifting charges, with the only breaks being for the time she was in custody.

[4] The offending the subject of the appealed sentence arose out of events in 2019. On 30 May 2018, Ms Tuki was released from a sentence of imprisonment for burglary, shoplifting and theft. She was to report weekly. Ms Tuki failed to report and was remanded in custody from 1 December 2018 to 22 February 2019. She was released, instructed again to report, and failed to do so.

[5] On 24 April 2019, Ms Tuki went to a fashion store in Takapuna. While there, she took two shirts with a total value of $318.

[6] On 5 May 2019, a bag was stolen from the Glenfield Pool and Leisure Centre. The bag contained $600 cash, and credit and debit cards. Ms Tuki was charged with receiving those cards, and then using them to purchase cigarettes from two different petrol stations.

1 Police v Tuki [2020] NZDC 4483.

[7] On 25 June 2019, Ms Tuki stole products valued at $100 from Birkenhead Countdown.

[8]On 19 July 2019, Ms Tuki entered a store and took $11 from an honesty box.

[9] On 15 August 2019, Ms Tuki entered the Wellsford Pharmacy. She took two cosmetic items with a total value of $51.98.

[10]Ms Tuki pleaded guilty to:

(a)Three charges of shoplifting;2

(b)One charge of theft;3

(c)One charge of obtaining by deception;4

(d)One charge of dishonestly using a document;5

(e)One charge of…

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 Tuki v Police

Details

AGLC: Tuki v Police [2020] NZHC 806
Case: [2020] NZHC 806
Decision Date: 24 April 2020

CaseChat Overview and Summary

Ms Tuki appealed against her sentence of 16 months’ imprisonment for various dishonesty offences, as well as breaching her release conditions and failing to report. The primary issues for the court to decide were whether the original sentencing judge had failed to apply a discount for time spent on electronic monitoring bail, whether the discount for a guilty plea was too low, and whether the sentence should have been home detention. The court found that the original sentencing judge had indeed failed to apply a discount for the time spent on electronic monitoring bail and that the discount for a guilty plea was too low. The court considered that home detention would be the least restrictive sentence in the circumstances and allowed the appeal accordingly. The court quashed the original sentence and substituted it with a sentence of 13 months’ imprisonment, reserving leave to apply for home detention. An updated report on the proposed address was ordered, including the consent of the owner/occupiers and an assessment of any particular risks posed by the Covid-19 virus.

Ms Tuki, a 34-year-old woman of Ngāti Raukawa descent with an extensive criminal history, pleaded guilty to a raft of dishonesty offences, breach of release conditions, and failure to report. The court needed to decide whether the original sentencing judge had failed to apply a discount for time spent on electronic monitoring bail, whether the discount for a guilty plea was too low, and whether the sentence should have been home detention. The court found that the original sentencing judge had failed to apply a discount for the time spent on electronic monitoring bail and that the discount for a guilty plea was too low. The court considered that home detention would be the least restrictive sentence in the circumstances and allowed the appeal accordingly. The court quashed the original sentence and substituted it with a sentence of 13 months’ imprisonment, reserving leave to apply for home detention. An updated report on the proposed address was ordered, including the consent of the owner/occupiers and an assessment of any particular risks posed by the Covid-19 virus.

Orders