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Tukuafu v R

Tukuafu v R

Case [2015] NZCA 251 17 June 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/2015
[2015] NZCA 251

BETWEEN	REX BARTHOLOMEW TUKUAFU Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2015
Court:	Winkelmann, Andrews and Gilbert JJ
Counsel:	J Moroney for Appellant J E L Carruthers for Respondent
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.

____________________________________________________________________

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]

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 Tukuafu v R

Details

AGLC: Tukuafu v R [2015] NZCA 251
Case: [2015] NZCA 251
Decision Date: 17 June 2015 at 10.30 am

CaseChat Overview and Summary

Rex Bartholomew Tukuafu appealed against his sentences of three years' imprisonment on three charges related to possessing equipment, materials, and precursor substances for manufacturing methamphetamine. Tukuafu argued that the starting point of three years' imprisonment was too high and that credit should have been given for the time he spent in custody under a recall order. The Court of Appeal considered the arguments and decided whether the starting point was appropriate and if credit should have been given for time spent in custody.

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