Tukiwaho v Police - [2023] NZHC 2395

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-41

[2023] NZHC 2395

BETWEEN
REGGIE TUKIWAHO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 August 2023

Appearances:

L S Collins for Appellant

C E R Power for Respondent

Judgment:

30 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 August 2023 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

TUKIWAHO v NEW ZEALAND POLICE [2023] NZHC 2395 [30 August 2023]

Introduction

[1]Reggie Tukiwaho pleaded guilty to the following charges:

(a)possession of cannabis for the purpose of sale;1

(b)possession of methamphetamine;2

(c)possession of methamphetamine utensils;3

(d)possession of ammunition for an unlawful purpose;4

(e)possession of a modified firearm without lawful purpose;5 and

(f)possession of an offensive weapon (hammer) in a public space.6

[2] Mr Tukiwaho was sentenced to two years and one month’s imprisonment by Judge Turner.7 He appeals that sentence on the ground it is manifestly excessive. He also says sentencing should have been adjourned to allow him to engage in rehabilitation.

Facts

[3] On 8 February 2023, around 2:10 am, Police observed Mr Tukiwaho stationary at a stop sign intersection for an unusually long period. Police initiated a traffic stop, during which Mr Tukiwaho admitted to smoking cannabis in the vehicle earlier. Police then conducted a warrantless search.

1      Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty eight years’ imprisonment.
2      Section 7(1)(a), (2); maximum penalty six months’ imprisonment.
3      Section 13(1)(a), (3); maximum penalty one year’s imprisonment.
4      Arms Act 1983, s 51; maximum penalty three years’ imprisonment.
5      Section 45(1); maximum penalty four years’ imprisonment.
6      Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
7      Police v Tukiwaho [2023] NZDC 8518.

[4] Mr Tukiwaho had to be forcibly restrained during this search. Police subsequently located a cut down .22 calibre bolt action rifle, 26 rounds of ammunition, a hammer, 0.69g of methamphetamine, 24.4g of cannabis, scales, a “tick book”, unused zip lock bags and a methamphetamine pipe.

[5] When Mr Tukiwaho was arrested, he said he had slipped back into old habits and was dealing cannabis and that the weapons were for protection. Mr Tukiwaho has never held a firearms licence.

District Court Decision

[6] The Judge noted Mr Tukiwaho had convictions for possession of an offensive weapon, assault and aggravated robbery from 2012, 2015 and 2017 respectively. Mr Tukiwaho was assessed as someone that presented a high risk of reoffending. This risk was aggravated by Mr Tukiwaho’s methamphetamine habit motivating much of his offending.

[7] The Judge noted Mr Tukiwaho’s lack of insight into the dangers of carrying weapons while under the influence of methamphetamine. Mr Tukiwaho was also known to be gang associated, having purchased his rifle from a gang-member. Mr Tukiwaho had failed an earlier attempt at rehabilitation at Moana House but wanted another chance. Judge Turner declined to postpone sentencing for this purpose, noting Moana House would not take someone on…

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: [2023] NZHC 2395
Decision Date: 30 August 2023

CaseChat Overview and Summary

Reggie Tukiwaho pleaded guilty to various charges including possession of cannabis for sale, possession of methamphetamine, possession of methamphetamine utensils, possession of ammunition for an unlawful purpose, possession of a modified firearm without lawful purpose, and possession of an offensive weapon in a public space. He was sentenced to two years and one month’s imprisonment by Judge Turner. Tukiwaho appeals his sentence on the grounds that it is manifestly excessive and that sentencing should have been adjourned to allow him to engage in rehabilitation. The court was required to decide whether the sentence was manifestly excessive and whether the refusal to adjourn sentencing for rehabilitation was an error.

The court examined the facts and the sentencing principles relevant to the case. It considered the appellant's submissions that the sentence was excessive, especially when compared to similar cases with larger quantities of drugs where lower sentences were imposed. However, the court found that the starting point of 18 months for the cannabis charge and 20 months for the firearm charges were within the range of appropriate sentences. The court also noted that the presence of firearms in drug-related offences is a serious aggravating factor and that Tukiwaho's weapons were readily accessible. The court found that the sentence, while not lenient, was not manifestly excessive. Regarding the refusal to adjourn sentencing for rehabilitation, the court found no error as Moana House, the rehabilitation facility, does not admit people on bail or awaiting sentence.

The appeal was dismissed. The court concluded that the sentence imposed was not manifestly excessive and that there was no error in the Judge's decision not to adjourn sentencing for rehabilitation.

Orders