| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA15/2015 [2015] NZCA 251 |
| BETWEEN | REX BARTHOLOMEW TUKUAFU |
| AND | THE QUEEN |
| Hearing: | 11 June 2015 |
Court: | Winkelmann, Andrews and Gilbert JJ |
Counsel: | J Moroney for Appellant |
Judgment: | 17 June 2015 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the notice of appeal is granted.
BThe appeal is allowed.
CThe concurrent sentences of three years’ imprisonment on each of the three charges are quashed and replaced with concurrent sentences of two years and seven months’ imprisonment.
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REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Following a trial before a Judge and jury in the Auckland District Court, Mr Tukuafu was found guilty on one count each of possessing equipment, materials and precursor substances with the intention of using these to manufacture methamphetamine. Mr Tukuafu was sentenced by Judge Ronayne, the trial judge, to three years’ imprisonment on each of these charges, to be served concurrently.[1]
[1]R v Tukuafu DC Auckland CRI-2012-090-4685, 23 October 2014.
Mr Tukuafu applies for an extension of time to file the notice of appeal against his sentence. He has explained why his appeal was filed late. The application is not opposed and is granted.
The appeal against sentence is advanced on two grounds:
(a)The starting point adopted by the Judge of three years’ imprisonment was too high.
(b)Credit ought to have been given for time spent in custody under a recall order.
Was the starting point too high?
Mr Tukuafu and an associate fled the flat Mr Tukuafu was renting because of a fire in the kitchen. The police subsequently located materials, equipment and precursor substances used for the manufacture of methamphetamine:
(a)Filter papers, a glass baking dish and a 500 millilitre Büchner flask.
(b)Approximately 2.3 kilograms of caustic soda.
(c)A 10 kilogram bucket half full of liquid containing iodine and a full 2.5 litre bottle of liquid containing iodine.
(d)Approximately 500 millilitres of fuel lite.
(e)Approximately 15 litres of liquid containing pseudoephedrine and other substances.
(f)Approximately one litre of liquid containing hydrochloric acid.
(g)Approximately 200 millilitres of acetone.
The Judge found that these substances, materials and equipment were closely associated with an attempt to manufacture methamphetamine. At the time of sentencing, counsel for Mr Tukuafu accepted the Crown’s submission that a starting point of three years’ imprisonment was appropriate for this offending. Nevertheless, Mr Moroney submits that the starting point should have been in the region of two years’ imprisonment.
We reject this submission. This was serious offending, towards the upper end of the scale. Having regard to the authorities to which we have been referred, including the decisions of this Court in R v Johnston[2] and Wilson v R,[3] we consider that the starting point was appropriate and within the range of the Judge’s sentencing discretion.
Should credit have been given for time spent in custody?
[2]R v Johnston CA 448/05, 16 May 2006.
[3]
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- AGLC
- Tukuafu v R [2015] NZCA 251
- Case
- [2015] NZCA 251
- Decision Date
CaseChat Overview and Summary
The Court of Appeal rejected Tukuafu's argument that the starting point of three years' imprisonment was too high. The court considered the seriousness of the offence and the authorities, including decisions from this Court, to conclude that the starting point was appropriate. The Court of Appeal also found that credit should have been given for the time Tukuafu spent in custody under a recall order. Although the time Tukuafu spent in custody from the date of the recall application and his sentence release date counted as time served under his previous sentences of imprisonment, the time he spent in custody between the date of the recall application and the date of his release from his previous sentence of imprisonment did not. The Court of Appeal considered that the appropriate allowance for this period was five months, resulting in an end sentence of two years and seven months' imprisonment.
The Court of Appeal granted Tukuafu's application for an extension of time to file the notice of appeal. The appeal was allowed, and the concurrent sentences of three years' imprisonment on each of the three charges were quashed and replaced with concurrent sentences of two years and seven months' imprisonment.
Orders
Orders of the court
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Background
Background to the litigation
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Decision
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