Tukuafu v The Queen - [2013] NZCA 103

IN THE COURT OF APPEAL OF NEW ZEALAND

CA535/2012
[2013] NZCA 103

BETWEEN PHILLIP WAYNE TUKUAFU
Appellant

AND THE QUEEN
Respondent

Hearing: 14 March 2013

Court: French, MacKenzie and Mallon JJ

Counsel: H B Leabourn for Appellant
K A L Bicknell and Z R Hamill for Respondent

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.

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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…

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 The Queen

Details

AGLC: Tukuafu v The Queen [2013] NZCA 103
Case: [2013] NZCA 103
Decision Date: 15 April 2013

CaseChat Overview and Summary

Phillip Wayne Tukuafu, a repeat offender with a history of burglary, was convicted of two counts of burglary and one of unlawfully getting into a motor vehicle. He appealed against his sentence of four years' imprisonment with a two-year minimum period of imprisonment, arguing that the sentence was manifestly excessive. The primary legal issues were whether the sentence was cumulative on or concurrent with an existing 13 and a half year prison sentence for previous offending and whether a minimum period of imprisonment should have been imposed. The Court found that the sentence was cumulative, meaning that the four-year sentence was added to the existing 13 and a half-year sentence, resulting in a notional single sentence of 17 and a half years. The imposition of a minimum period of imprisonment was deemed to be a mistake and had no practical effect. Therefore, the appeal against sentence was allowed to the extent that the minimum period of imprisonment of two years was quashed. The sentence of four years' imprisonment was confirmed.

The Court held that the sentence was cumulative, not concurrent, as the Judge intended. The cumulative sentence was deemed appropriate and within range. The imposition of a minimum period of imprisonment was a common mistake and had no practical effect due to the cumulative nature of the sentence. The Court quashed the minimum period of imprisonment of two years as a matter of principle, as it was of no practical effect and the result of a mistake. The sentence of four years' imprisonment was confirmed, and the appeal against sentence was allowed to the extent that the minimum period of imprisonment was quashed.

Orders