Tukuafu v The Queen
[2013] NZCA 103
•15 April 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA535/2012 [2013] NZCA 103 |
| BETWEEN PHILLIP WAYNE TUKUAFU |
| AND THE QUEEN |
| Hearing: 14 March 2013 |
| Court: French, MacKenzie and Mallon JJ |
| Counsel: H B Leabourn for Appellant |
| Judgment: 15 April 2013at 10.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is allowed to the extent that the minimum period of imprisonment of two years is quashed. The sentence of four years’ imprisonment is confirmed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Tukuafu was found guilty by a District Court jury of two counts of burglary and one of unlawfully getting into a motor vehicle. He was sentenced on 16 August 2012 to a term of imprisonment of four years with a two year minimum period of imprisonment.[1]
[1] R v Tukuafu DC Tauranga CRI-2009-092-10344, 16 August 2012.
He now appeals that sentence on the grounds that the sentence was manifestly excessive when combined with the minimum period of imprisonment.
The key issues raised by the appeal are:
(a)Was the four year prison sentence cumulative on, or concurrent with, an existing 13 and a half year prison sentence for previous offending imposed on Mr Tukuafu in 2002?
(b)Should a minimum period of imprisonment have been imposed?
Background
Mr Tukuafu is a recidivist burglar.
On 1 February 2002 he was sentenced to 13 and a half years’ imprisonment on 63 counts of burglary, one count of attempted burglary, 25 counts of conversion of a motor vehicle and one count of attempted conversion. The offences had been committed between March 1999 and June 2000. The sentence was upheld on appeal to this Court.[2]
[2] R v Tukuafu [2003] 1 NZLR 659 (CA).
The offending at issue in this appeal occurred in July 2008 while Mr Tukuafu was on parole. He and two associates broke into two supermarkets and made off with tobacco, cigarettes and food. The combined value of the stolen goods and damage was approximately $33,790. Their getaway car was a plumber’s van, which they had stolen. They also took the plumber’s wallet and tools worth between $5,000 and $6,000. The van was recovered, but none of the other stolen items belonging to the plumber and the supermarkets were found.
Upon his arrest in June 2009, Mr Tukuafu was initially declined bail and subsequently recalled by the Parole Board to resume serving his 13 and a half year sentence. He pleaded not guilty to the supermarket burglaries. The first jury trial resulted in a hung jury, but Mr Tukuafu was convicted after a second jury trial in May 2012. He was sentenced by Judge Weir on 16 August 2012.
At the time of the sentencing, Mr Tukuafu was still in custody serving his 13 and a half year sentence, which does not expire until 30 November 2013.
Sentencing in the District Court
The information before the District Court included a pre-sentence report. It told the Judge that over the past 40 years Mr Tukuafu has amassed some 230 convictions, most of which are for burglary and unlawfully taking a vehicle. His motivation to change was assessed as low and his risk of reoffending as high.
In his sentencing notes, the Judge described the supermarket burglaries as a very slick, professional operation. He identified the aggravating factors of the offending as being the value of the property taken and the sophistication and planning involved. Personal aggravating factors were the fact the offending occurred while Mr Tukuafu was on parole, his “truly staggering and appalling history of prior dishonesty offending” and the fact that he has received lengthy periods of imprisonment for burglary before.[3]
[3] At [11]-[12].
The Judge then discussed the methodology to be used in sentencing recidivist burglars, citing the decision of this Court in R v Columbus.[4] He said he agreed with the Crown submission that an appropriate starting point was a sentence of between seven and eight years’ imprisonment, subject to the totality principle. The Judge went on to say that having regard to the offending and all the aggravating factors, both in relation to the offending itself and Mr Tukuafu’s own personal circumstances, he considered an appropriate end sentence was one of four years’ imprisonment.
[4] R v Columbus [2008] NZCA 192.
That left the issue of a minimum period of imprisonment, which had been sought by the Crown. The Judge said he considered a minimum period should be imposed having regard to:
(a)the criteria in s 86(2) of the Sentencing Act 2002;
(b)the fact that this offending had occurred while Mr Tukuafu was on parole;
(c)the fact that it involved a similar modus operandi to his previous offending; and
(d)the fact that previous sentences had not deterred him.
The Judge fixed the minimum term at 50 per cent of the four year sentence (two years).
Grounds of appeal
On appeal, counsel Mr Leabourn accepted that a sentence of four years’ imprisonment on its own would not have been manifestly excessive, but submitted that it did take on that characteristic when coupled with a minimum period of imprisonment of two years.
That position was taken on Mr Leabourn’s understanding that Judge Weir’s sentence was a concurrent sentence (concurrent with the existing 13 and a half year sentence) and therefore only commenced on the date of the sentencing, 16 August 2012. On that basis, the two year minimum period will not end until 16 August 2014, which in turn means that Mr Tukuafu will be required to serve almost all of the original 13 and a half year sentence plus 50 per cent of the second sentence. He will not receive any credit or recognition on his second sentence for the three year period spent in custody as a recalled prisoner.
Mr Leabourn submitted that as a result of all the above, the minimum period of imprisonment has, in the special circumstances of this case, rendered the sentence unduly harsh and unfair.
For its part, the Crown said that those concerns were unfounded. In Ms Bicknell’s submission, the sentence was not a concurrent sentence but a cumulative one, and the two year minimum period of imprisonment has no practical effect.
Discussion
The first issue is whether the sentence imposed was a concurrent sentence as understood by the appellant or a cumulative sentence as claimed by the Crown.
The distinction has important practical consequences.
Mr Leabourn represented Mr Tukuafu at the sentencing and told us he came away with the distinct impression that the four year prison sentence was concurrent. That impression was gained because the Judge did not expressly state, when deciding upon the term of imprisonment, that the sentence was a cumulative one. Mr Leabourn was therefore somewhat surprised to learn only recently that the warrant signed by the Judge immediately after the sentencing says that the sentence is cumulative.
The general principle is that if a Judge imposing sentence in open Court does not expressly impose a second sentence on a cumulative basis, then the second sentence is, by dint of s 76 of the Parole Act 2002, a concurrent one.[5] In the event of there being any conflict between what is said in open Court and what is stated in a warrant, then for obvious reasons what was said in open Court must prevail.[6]
[5] Harvey v General Manager of Rimutaka Prison HC Wellington CIV-2009-485-1748, 4 September 2009 at [10].
[6] R v Love CA353/02, 25 November 2002 at [6].
However, in this case we are satisfied there is no conflict. Although the Judge did not expressly state that the sentence was cumulative when announcing his decision as to its length, reading the sentencing notes as a whole shows that the Judge intended the sentence to be a cumulative one.
As mentioned, the Judge said he accepted the Crown’s submission that a starting point of seven or eight years would in the normal course of events have been appropriate, but the totality principle applied. The Judge also recorded that both the Crown and defence counsel were advocating for a cumulative sentence in the order of three to four years, describing their submissions as being that a cumulative sentence was “the only appropriate way”. The Judge went on to state that a cumulative sentence would cause less difficulties as far as the Parole Board was concerned and that it would make calculation of Mr Tukuafu’s eventual release date by the Parole Board a more simple equation and would be more advantageous to him. The overall tenor of the comments is that the Judge accepted counsel’s submission.
This interpretation of the sentencing notes is reinforced by the concluding paragraph, where the Judge described the four year sentence as a “further” period of imprisonment, a description which would only be apt for a cumulative sentence. The signing of the warrant is accordingly consistent with what was said and with what was intended.
We therefore accept the Crown’s submission that the sentence imposed was cumulative on the existing 13 and a half year sentence. That means for the purposes of the Parole Act, Mr Tukuafu is deemed to be serving a notional single sentence of 17 and a half years (13 and a half plus four).[7] We add that in our view the Judge was correct to impose a cumulative sentence and that the sentence of four years’ imprisonment was within range.
[7]A notional single sentence is defined in s 4 of the Parole Act 2002 as meaning the notional single sentence of imprisonment that is created when one determinate sentence is directed to be served cumulatively on another determinate sentence.
In coming to the conclusion that the sentence was cumulative, we have not overlooked the fact the Judge chose to impose a minimum period of imprisonment in circumstances where a minimum period of imprisonment would only have been meaningful if the sentence were concurrent. If the sentence was cumulative, as the Judge appears to have intended, a minimum period of imprisonment was of no practical effect. That is because of s 84(4) of the Parole Act, which states that the non-parole period of a long-term notional sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence.[8]
[8]Long-term sentence is defined in s 4 of the Parole Act as including a notional single sentence of more than 24 months.
Applying that formula to the facts of this case, Mr Tukuafu’s parole eligibility date is calculated as follows. Under his 13 and a half year sentence, his parole eligibility date was 1 December 2004. Adding the two year minimum period imposed by Judge Weir (less 11 pre-sentence detention days) takes the parole eligibility date to 20 November 2006, which is almost two years before the supermarket burglaries were committed. It would therefore expire before the sentence was passed.[9]
[9]At first blush that may seem a rather extraordinary result, but as pointed out in R v Griffiths CA77/06, 29 August 2006 at [31], for offenders in this situation sentence release and expiry dates are likely to be of more relevance that the parole eligibility date.
The imposition of a minimum period of imprisonment could thus arguably be seen as undermining our interpretation of the sentencing notes as involving the imposition of a cumulative sentence. The Judge would not have intended to impose an order that had no practical effect. However, Ms Bicknell explained that it is a very common mistake for sentencing judges to overlook the existence of s 84(4) when imposing cumulative sentences and minimum periods of imprisonment. We are satisfied that this is the most likely explanation for what has happened in this case. The mistake appears to have been made not only by the Judge, but also by prosecuting counsel, who sought the minimum period of imprisonment in the first place.
That then leaves the question of what to do with the minimum period of imprisonment. Mr Leabourn submitted that even if it does not have any practical impact on Mr Tukuafu’s eligibility for parole, Mr Tukuafu wants it to be quashed. That is because he claims its existence is influencing the Parole Board in denying him parole. We have no evidence to suggest that is the case, but in any event it would not in our view be a proper matter for this Court to take into account when deciding an appeal against sentence. It is for the Parole Board to make its decision in accordance with the relevant statutory considerations. We do, however, consider that as a matter of principle a sentence which is of no practical effect and the result of a mistake should not be allowed to stand. We therefore order that the minimum period of imprisonment of two years should be quashed.
Outcome
The appeal against sentence is allowed to the extent that the minimum period of imprisonment of two years is quashed. The sentence of four years’ imprisonment is confirmed.
Solicitors:
Crown Law Office, Wellington for Respondent