Tukiwaho v Police
[2023] NZHC 2395
•30 August 2023
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 bail or awaiting sentence.
[8] With reference to R v Terewi,8 the Judge found the offending fell within category 2 and adopted a starting point of 18 months’ imprisonment for the lead offence of selling cannabis. This accounted for the fact that Mr Tukiwaho was dealing to feed an addiction.
8 R v Terewi [1999] 3 NZLR 62 (CA).
[9] Having regard to the decisions in Police v Hatsell,9 Olsen v Police10 and Taranaki v Police11 a starting point of 20 months’ imprisonment was adopted for the possession of two weapons and ammunition, noting that although the rifle was not loaded, it could easily have been. The Judge found that Mr Tukiwaho plainly intended to resort to the weapon if need be. A one-month uplift was applied for the methamphetamine and pipe charges, leading to a total of 39 months’ imprisonment, adjusted to 34 for totality.
[10] Mr Tukiwaho’s previous firearm convictions led the Judge to increase the sentence by ten per cent. An early guilty plea justified a 25 per cent credit and Mr Tukiwaho’s addiction issues and motivation to change led the Judge to grant an additional credit of ten per cent.
[11] Granting a net 25 per cent credit, the Judge rounded the sentence down to a total of 25 months’ imprisonment.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.13 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14
9 Police v Hatsell [2021] NZDC 21626.
10 Olsen v Police [2019] NZHC 1259.
11 Taranaki v Police [2021] NZHC 2746.
12 Criminal Procedure Act 2011, ss 250(2) and 250(3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[13] Mr Collins, appearing for Mr Tukiwaho, refers to several drug-related cases where far greater amounts of cannabis were found, leading to starting points of 18 months’ imprisonment.15 Mr Collins also refers to several firearms cases that took lower starting points for possession offences.16 In McMillan v Police, the defendant was involved in two methamphetamine use incidents where a stolen rifle was also found, alongside a semi-automatic shotgun, cannabis and pipes. The defendant there was sentenced to six months’ home detention.
[14] Mr Collins notes that the defendant in Smith v R was found in possession of 4852g of cannabis compared to Mr Tukiwaho’s 24.4g.17 In Smith, the defendant received seven months’ home detention. Mr Tukiwaho was in possession of considerably less cannabis than in the cases cited in Smith v R, the majority of which were viewed as low-level offending, attracting starting points of 15-18 months’ imprisonment.18 Mr Collins submits 15 months would be an appropriate starting point on the cannabis charge.
[15] In respect of the second issue raised on appeal, Mr Collins cites Williams J in Berkland v R to submit the Judge was in error when refusing to adjourn the sentencing for Mr Tukiwaho.19 While acknowledging that adjournments are undesirable, Mr Collins says Mr Tukiwaho’s crime had no identifiable victim and, furthermore, an adjournment and subsequent period at Moana House would have given the Court insight as to whether Mr Tukiwaho could demonstrate actual compliance in a rehabilitative programme. Mr Collins submits a period at Moana House would help Mr Tukiwaho get his life back on track, noting he was enrolled in study and had been appointed the head of the Maori Student Association at the Otago Polytechnic.
15 Smith v R [2022] NZCA 606; Devereux v Police [2017] NZHC 167; Mowberry v Police [2012] NZHC 969; R v McGlip (2006) 23 CRNZ 526 (CA); R v Maats HC Gisborne CRI-2010-016-1863, 14 December 2010.
16 Moore v Police [2015] NZHC 3113, McMillan v Police [2019] NZHC 3323; Bidios v Police
[2017] NZHC 589.
17 Smith v R, above n 15 at [3].
18 There are six cases cited at [16].
19 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [132].
Respondent’s submissions
[16] Mr Power, appearing for the respondent, accepts that the cases cited by Mr Collins may be considered more serious than Mr Tukiwaho’s offending if one considers just the amounts of cannabis involved. However, Mr Power contends the amount of cannabis found on offenders is only one relevant factor. For example, in Smith, there was no evidence of commerciality. The Judge accepted it was for pain relief and granted a 30 per cent credit to reflect health issues.20 In contrast with Mr Tukiwaho’s offending there was some degree of commerciality evidenced by the other items he was found with. Mr Tukiwaho also admitted to selling cannabis to fuel his methamphetamine habit.
[17] Whilst noting care must be taken to avoid double counting, Mr Power submits the possession of a firearm, ammunition and hammer for protection “must indicate some frequency of sales and accordingly a degree of commerciality”. Mr Power notes the cases cited in Smith, involved starting points of 18 months’ imprisonment but also involved cannabis operations at the lower end of the commercial scale, if any commerciality was found at all. Mr Power submits the 18-month starting point was therefore within range.
[18] Mr Power submits the 20-month uplift for firearm possession was within the available range. Even if it was high, the Judge’s adjustment for totality cured any error. Mr Power distinguishes Moore v Police on the grounds that case involved one firearm and ammunition that was subsequently found in various locations on the defendant’s property.21 Mr Tukiwaho was in possession of two weapons, with both the weapons and the ammunition readily accessible. Mr Power submits that, in light of McMillan, the 20-month uplift cannot be considered excessive, especially in light of the totality adjustment.
[19] Referring to Berkland, Mr Power submits the 10% discount given for Mr Tukiwaho’s background matters was generous, noting it was based solely on a pre-sentence report and information provided by counsel at sentencing.
20 Smith, above n 15, at [6].
21 Moore v Police, above n 16.
[20] Finally, Mr Power notes that Moana House does not admit people on bail or awaiting sentence. It was not an option for Mr Tukiwaho to demonstrate his compliance through completion of the programme prior to sentencing and the Judge could not have ordered this. In any event, Mr Power notes there are rehabilitation options open to Mr Tukiwaho in prison and he may attend Moana House when he is released.
Analysis
[21] On a strict application of R v Terewi, a starting point of two years was available to the Judge.22 Mr Tukiwaho was clearly undertaking a commercial venture, evidenced by the zip-lock bags, a “tick book”, scales, and his own admission. I accept the weapons found in his possession supported commercial intention. With that in mind, the Judge’s 18 month starting point, which accounted for the fact Mr Tukiwaho was dealing to feed his own methamphetamine addiction, cannot be considered manifestly excessive.
[22] However, noting the age of Terewi, it is relevant to consider recent cases, including Smith v R which provides recent Court of Appeal guidance on sentencing for supply of cannabis. Mr Collins correctly points out that in Smith, the defendant was found in possession of a substantial amount of cannabis head. However, I accept the respondent’s submission that the Court in that case accepted it was for the appellant’s chronic back pain, with no commercial intention proven.23 A starting point of 21 months’ imprisonment was adopted before being discounted by 30 per cent for Mr Smith’s medical issues. The Judge also noted that cannabis “is not seen to be the drug it once was” before commuting the sentence to one of seven months’ home detention.24
[23] I also note Mowberry v R, where a defendant undertook a “very minor” and “basic” commercial operation, in which the police seized 57 cannabis plants.25 Gendall J adopted a starting point of 18 months’ imprisonment. Mowberry is one of
22 R v Terewi, above n 8, at [4].
23 Smith, above n 15, at [4].
24 At [7].
25 Mowberry, above n 15 at [10].
the several cases cited in Smith that deal with offending of this nature, with starting points ranging from 15 to 27 months’ imprisonment.26 In Devereux, “low level” offending in which there was “no question of the commerciality” resulted in Mander J adopting an 18 month starting point.27
[24] With those cases in mind, the Judge’s 18 month starting point was within the available range. Though Mr Tukiwaho was not found with a particularly large amount of cannabis, his intentions were clearly commercial. Commercial intention is the clear divider between category one and category two classes of offending in Terewi. While I acknowledge that case’s age, the general principle of separating classes of offending remains appropriate. Terewi indicates a starting point of 24 – 48 months. The Judge’s 18 month starting point fairly reflects a more merciful approach to the application of the Terewi guidelines as well as the small amount of cannabis Mr Tukiwaho was found with.
[25] In respect of the firearms charges, the case of McMillan v Police bears significant similarities. Mr McMillan was convicted of a total of eight charges over two separate incidents, one in Christchurch involving the possession of drugs and utensils in 2018 and one in Invercargill, involving possession of utensils, a .22 rifle and a sawn-off shotgun. Mr McMillan was also found with small quantities of methamphetamine and cannabis. The District Court Judge adopted a starting point of 20 months for the Invercargill offending and uplifted that by a further two months for the Christchurch offending, to reflect previous convictions and the fact Mr McMillan was on bail at the time of the Invercargill offending.28
[26] This Court on appeal placed weight on the fact the weapons concerned were immediately available in the defendant’s car. I do not accept the submission that because Mr Tukiwaho’s weapons were in a bag, they were not readily accessible as in McMillan. It has long been recognised that the presence of firearms in controlled drug offending cases is a serious aggravating factor.29 As Judge Turner noted, while the
26 Smith, above n 15, at [16].
27 Devereux, above n 15, at [33].
28 McMillan, above n 16, at [9].
29 Bidois, above n 16, at [7].
cut-down firearm weapon was not loaded, it easily could have been.30 Furthermore, Mr Tukiwaho admitted he retained the weapons in his car for self-protection.
[27] While the starting point of 20 months included the possession of small quantities of drugs as well, it must be noted there was no commercial element in his drug possession. In short, the starting point of 20 months for the firearm offending was within range. No issue is taken with the discrete one-month uplifts for the methamphetamine and pipe charges.
[28] The reduction for totality from 39 to 34 was appropriate. However, the 10 per cent uplift for previous offending could be viewed as stern. Mr Tukiwaho’s most recent offence was aggravated robbery in 2016 which, while serious, was 7 years ago. I acknowledge some of the time since then was spent in prison. Mr Tukiwaho’s last firearm offence was a possession charge in 2012 and there is no formal record of prior drug-related offending. As Mr Collins submits, Mr Tukiwaho has attempted to turn a corner in his life, returning to study and taking on the role of head of the Māori Students’ Association at the Otago Polytechnic. Unfortunately, he slipped back into “old habits” when he could not get extra shifts at the Port, lost his student allowance due to the summer break and suffered the emotional effects of a sudden break up. An uplift of, say, five per cent may have more fairly reflected the extent to which these past offences reflected on Mr Tukiwaho’s culpability and the need for an uplift for deterrence purposes. However, Mr Tukiwaho has already had the benefit of full credits for other mitigating factors and has had the benefit of the rounding down of the end sentence. I cannot say the end sentence is manifestly excessive. Any adjustment would be tinkering.
[29] The last issue raised on behalf of Mr Tukiwaho is the Judge’s decision not to adjourn sentencing to allow Mr Tukiwaho to undertake a rehabilitation programme at Moana House. However, the only evidence before me is that such a programme was not available to someone awaiting sentence and that is the reason the Judge denied this request. There can be no error in him doing so in those circumstances. Furthermore,
30 Tukiwaho, above n 7, at [14].
even if there had been such an error, it is difficult to see how it could be rectified on appeal when the option of adjourning sentencing is no longer open.
Conclusion
[30]The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin
Copy to:
L S Collins, Barrister, Dunedin
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