Tumu v Police
[2021] NZHC 1571
•29 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-404-000237
[2021] NZHC 1571
BETWEEN RUBEN DAVID TUMU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 June 2021 Appearances:
A J Te Koha for the Appellant J M Xulue for the Respondent
Judgment:
29 June 2021
ORAL JUDGMENT OF VAN BOHEMEN J
Solicitors/Counsel:
Te Koha Law, Manukau
Crown Solicitor, Kayes Fletcher Walker Limited, Manukau
TUMU v NEW ZEALAND POLICE [2021] NZHC 1571 [29 June 2021]
Introduction
[1] Ruben Tumu appeals the sentence of five month’s home detention imposed by Judge David J Harvey in the District Court at Manukau1 after Mr Tumu had pleaded guilty to assaulting a person with intent to injure.2
[2] Mr Te Koha, counsel for Mr Tumu, submits that the sentence is manifestly excessive because:
(a)The starting point of 16 months’ imprisonment set by Judge Harvey was too high, having regard to comparable cases;
(b)Judge Harvey did not give enough weight to Mr Tumu’s personal circumstances, age and the general gravity of the offending; and
(c)A sentence of home detention was not the least restrictive outcome appropriate in the circumstances.
[3]The Police oppose the application.
Background
[4] According to the Police Summary of Facts, which Mr Tumu accepts, on the afternoon of 19 November 2020 a vehicle containing Mr Tumu and three others parked behind the vehicle containing the victim and his partner, thereby blocking the exit of the victim’s vehicle, which was parked on Bairds Road in Otara.
[5] Mr Tumu and two others exited their vehicle, opened the driver’s side door and attempted, unsuccessfully, to drag the victim out of the vehicle. Mr Tumu and his two associates then punched and kicked the victim’s head, arms, legs and back as the victim was sitting in the driver’s seat. When the victim’s partner pulled the victim over to her side of the car, the attackers ran to the passenger side of the vehicle and continued to kick and punch the victim.
1 Police v Tumu [2021] NZDC 8569.
2 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
[6] The attack stopped when the victim’s partner began beeping the horn of the car to get the attention of members of the public. Mr Tumu and his two associates walked back to their car and drove off.
[7]The victim suffered minor bruises and grazes to his head.
[8] Mr Te Koha acknowledges in his submissions that Mr Tumu’s actions were in retaliation for a burglary the victim had committed some time previously at Mr Tumu’s house when items belonging to Mr Tumu’s young children had been taken.
The District Court decision
[9] In setting Mr Tumu’s sentence, Judge Harvey adopted a starting point of 16 months’ imprisonment, based on his view that Mr Tumu’s offending fell at the higher end of band 2 of Nuku v R.3 Judge Harvey added two months based on Mr Tumu’s prior convictions, resulting in a combined starting point of 18 months’ imprisonment. The Judge then applied a discount of four and a half months for Mr Tumu’s guilty plea, and a further discount of one and a half month because Mr Tumu had been on curfew for some time. This brought the total sentence to 12 months’ imprisonment.
[10] Having reached that point, Judge Harvey said he wanted to make it clear that he would not tolerate vigilantism, which he considered Mr Tumu’s offending to be, that it was a vicious assault where the victim had had his escape route closed off. For these reasons, the Judge considered a restrictive sentence was warranted. The Judge said he did not consider a sentence of community detention or “anything of that nature” would have properly reflected the seriousness of this type of offending.
[11] The Judge then imposed a sentence of five months’ home detention, having modified his original intention of imposing a sentence of six months’ home detention after having heard from Mr Te Koha. The Judge also directed Mr Tumu to attend an anti-violence programme to the satisfaction of a probation officer.
3 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
Approach on appeal
[12] Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that there is an error in the sentence and a different sentence should be imposed. In any other case, it must dismiss the appeal.
[13] Section 251(1) of the CPA provides that if a Court allows an appeal against sentence it must set aside the sentence and impose another sentence that it considers appropriate.
[14] The Court of Appeal has confirmed that, in applying s 250(2) of the CPA, the Court should continue to apply the long-established approach to reviewing sentences.4 An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.5 Unless there is a material error in the end sentence, the Court will not intervene.6 There will be a material error if the end sentence is manifestly excessive or wrong in principle.7 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.8 However, there may be cases where there has been error that requires correction, even if the sentence imposed is within range.9
Appellant’s submissions
[15] On the starting point, Mr Te Koha refers to several authorities which, he submits, support a starting point of 10 to 12 months where there is a single instance of assault with intent to injure.10 He accepts that the element of vigilantism in this case, which was not present in those cases, is an aggravating factor but submits that this
4 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; Tamihana v R [2015] NZCA 169, at [14].
5 Tamihana v R [2015], above n 4, at [29] – [30]; Tamihana v R, above n 4, at [14].
6 Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 4, at [14].
7 Tamihana v R, above n 4, at [14].
8 Tutakangahau v R, above n 4, at [36]; Tamihana v R, above n 4, at [14].
9 Tutakangahau v R, above n 4, at [36].
10 Tamihana v R, above n 4; Taingahue v Police HC Wellington CRI-2009-485-75 (17 August 2009); and Zheng v NZ Police [2021] NZHC 1057.
factor did not justify a starting point of more than 12 months. Mr Te Koha also submits that in setting the starting point, Judge Harvey should have taken into account the fact that the victim suffered only minor bruising and grazes to his head.
[16] Mr Te Koha says that Mr Tumu is a young, not traditionally violent offender, who has demonstrated an understanding that violence is unacceptable, and should be given a 12 per cent discount for personal circumstances.11
[17] Mr Te Koha also submits that in the case of a young person such as Mr Tumu with his personal circumstances, rehabilitation and reintegration should hold equal weighting to deterrence, accountability, denunciation and protection of the community. Mr Te Koha submits that Mr Tumu demonstrates a propensity for rehabilitation and that the public interest is served by reintegrating young offenders like him back into society. In addition, a punitive response could have been satisfactorily achieved by community detention and intensive supervision for a prolonged period.
Respondent’s submissions
[18] The Police submit that the end sentence of five months’ home detention is not manifestly excessive and that none of the grounds advanced in support of the appeal are made out.
[19] Mr Xulue, counsel for the Police, submits that Judge Harvey did not err in adopting a starting point of 16 months’ imprisonment given the aggravating factors of the offending. Mr Xulue says these were: multiple attackers; sustained violence; premeditation; vigilante action and injuries. Mr Xulue submits that the cases referred to by Mr Te Koha are of limited assistance because two occurred in the context of family violence offending12 and the third was an opportunistic attack with no vigilantism and fewer offenders.13 Mr Xulue submits that Harris v R, where a starting point of 16 months’ imprisonment was adopted, is a more analogous case.14
11 Citing Hammond v R [2021] NZHC 1064 in support.
12 Taingahue v Police and Zheng v NZ Police, above n 10.
13 Tamihana v R, above n 4.
14 Harris v R [2017] NZHC 1404.
[20] Mr Xulue submits that Judge Harvey was correct to impose a sentence of home detention, having regard to the seriousness of the offending, Mr Tumu’s poor compliance with Court-imposed sanctions, namely, three breaches of community work, and the fact Mr Tumu has continued to offend despite a previous community detention sentence. Mr Xulue notes that the pre-sentence report had also recommended a sentence of home detention.
Discussion
[21] In considering whether the sentence imposed by Judge Harvey was manifestly excessive, I have regard first to the starting point adopted by Judge Harvey, then to the alleged failure by Judge Harvey to have regard to Mr Tumu’s personal circumstances, and then to the overall sentence, bearing in mind that the Court of Appeal has held that it is appropriate to have regard to alleged error as well as to the end point of the sentence.15 I consider that an assessment of whether the sentence was the least restrictive outcome appropriate in the circumstances can be undertaken only after an assessment of whether the sentence otherwise involved error and was manifestly excessive.
Was the starting point wrong in principle?
[22] In Nuku v R,16 the Court of Appeal provided guidance on the application of its tariff decision in R v Taueki17 to sentencing where the offending involves intent to injure. The Court said that a starting point of up to three years’ imprisonment is appropriate where three or fewer of the aggravating factors in Taueki are present.18
[23] As Mr Te Koha accepts, there were three Taueki factors present in Mr Tumu’s offending: multiple attackers, attacks to the head and vigilantism. I do not accept that premeditation has been established just because Mr Tumu’s vehicle blocked the victim’s vehicle.
15 Tutakangahau v R, above n 4, at [39].
16 Nuku v R, above n 3, at [38] – [43].
17 R v Taueki [2005] 3 NZLR 372 (CA).
18 Nuku v R, above n 3, at [38].
[24] Because of those three factors, a starting point of up to three years’ imprisonment was available under the guidance in Nuku. Even so, Mr Te Koha submits that a starting point of 16 months was too high, having regard to starting points adopted in equivalent cases.
[25] Of the authorities put forward by counsel, I consider the most analogous to be Tamihana v R, in which the Court of Appeal held there were three Taueki factors present: multiple offenders, an attack to the head and a vulnerable victim who was kicked as he lay defenceless on the ground.19 The victim suffered bruising and grazes to the face. The Court of Appeal did not consider that the offending was at or towards the higher end of such offending. No extreme violence was used; there was no premeditation and no serious injury resulted; weapons were not involved; and there was nothing to suggest that the offending was to facilitate the commission of another crime.20
[26] In Tamihana v R, the Court of Appeal considered that the starting point of 18 months’ imprisonment adopted by the sentencing judge was wrong in principle because it was too high when consideration was given to sentences imposed for similar offending.21 The Court considered that the starting point should have been 12 months’ imprisonment.22 The Court also considered that the uplift of 6 months’ imprisonment imposed by the sentencing judge to take account of previous offending was disproportionate and should have been three months.23 The Court reduced the sentence of imprisonment imposed on Mr Tamihana, having regard to this analysis.24
[27] I consider that Mr Tumu’s offending to be similar to that in Tamihana v R. In one respect, it is less serious than Tamihana because it did not involve a kick to the victim’s head as he lay vulnerable on the ground. On the other hand, the vigilantism factor was not present in Tamihana. Accordingly, I consider the two cases are broadly comparable in terms of seriousness and culpability.
19 Tamihana v R, above n 4, at [19].
20 Ibid.
21 Tamihana v R, above n 4, at [25].
22 At [33].
23 At [28].
24 At [33].
[28] Given the Court of Appeal’s analysis and the similarities between Tamihana and the present case, I am satisfied that the starting point of 16 months’ imprisonment adopted by Judge Harvey was wrong in principle and too high, and should have been 12 months’ imprisonment.
Did the Judge err by failing to take into account Mr Tumu’s youth and personal circumstances?
[29] There is no reference in Judge Harvey’s sentencing to Mr Tumu’s personal circumstances. Nor is there substantial evidence of those circumstances before the Court other than the facts disclosed in Mr Tumu’s Criminal and Traffic History, what is stated in the pre-sentence report and what Mr Te Koha says on behalf of Mr Tumu from the bar.
[30] The bare facts are that Mr Tumu is 24 years old and was that age when the offending occurred. His criminal history dates back to August 2014 when Mr Tumu would have been 17 years’ old. Mr Tumu has appeared before the Court nine times before the offending that led to Judge Harvey’s sentence, and has been convicted on two charges of unlawful possession of a firearm, four minor drugs related offences, two charges of driving with excessive breath alcohol, a number of other driving offences, a number of breaches of community work sentences and one failure to answer bail.
[31] These offences have resulted, variously, in Mr Tumu being convicted and discharged, fined, disqualified from driving, and given sentences of community work, supervision and community detention. A number of these offences were committed while Mr Tumu was on bail.
[32] While Mr Tumu was not charged with any offending between January 2019 and November 2020, it is difficult to infer from this hiatus that Mr Tumu’s offending has tapered off or that Mr Tumu has a propensity for rehabilitation as submitted by Mr Te Koha.
[33] The pre-sentence report states that the key contributing factors identified in Mr Tumu’s offending are his offending supportive attitude, and a propensity for
violence and a lack of consequential thinking. I accept, however, that the propensity for violence may have been over-stated by the report writer. In any event, the report states that Mr Tumu is willing to engage in appropriate programmes and to write a letter of apology to the victim. There is no evidence of such a letter having been written.
[34] Given this history, and the lack of evidence of a real commitment to rehabilitation other than that offered from the bar, I do not consider that there was any error in Judge Harvey not giving a separate discount for Mr Tumu’s personal circumstances.
Was the sentence imposed by Judge Harvey manifestly excessive having regard to the error in the starting point?
[35] As already discussed, I am satisfied that the starting point of 16 months’ imprisonment set by Judge Harvey was wrong in principle and that the starting point should have been 12 months’ imprisonment. However, that error does not, of itself, establish that the end sentence was manifestly excessive, having regard to the fact that the end sentence imposed in the present case was five months’ home detention.
[36] Mr Te Koha does not challenge the uplift of two months’ imprisonment imposed by Judge Harvey to take account of Mr Tumu’s previous offending. Nor, understandably, does he take issue with the discounts made by Judge Harvey to take account of Mr Tumu’s guilty plea and time spent on curfew.
[37] If the same uplift and discounts are applied to a starting point of 12 months’ imprisonment, the net result is a sentence of nine months’ imprisonment, as compared with the 12 months arrived at by Judge Harvey.
[38] While it is common practice to calculate the period of home detention by halving the period of imprisonment arrived at, that is not a requirement of the Sentencing Act 2002. Judge Harvey set the period at five months, after having originally intended to set it at six months. If he had adopted a starting point of 12 months’ imprisonment, it is possible that Judge Harvey might have set the period lower again, for example at four months. On the other hand, he might not have.
[39] In any event, I consider that a period of between four and five months’ home detention would have been appropriate, having reached a notional end sentence of nine months’ imprisonment. In these circumstances, I do not accept a sentence of five months’ home detention to be manifestly excessive and to warrant the intervention of the Court, notwithstanding the error in setting the starting point.
Was the sentence manifestly excessive because it was not the least restrictive option?
[40] Mr Te Koha submits that for various reasons, in particular Mr Tumu’s age, his lack of previous history of violent offending, the alleged tapering off in Mr Tumu’s pattern of offending, and his alleged break with the Killer Beez gang, a community based sentence should have been imposed.
[41] While s 8(g) of the Sentencing Act provides that the Court must impose the least restrictive sentence that is appropriate in the circumstances, that it just one of the principles set out on s 8. The sentence that is imposed must also take into account the purposes of sentencing in s 7 and the other principles in s 8. It is the assessment of all of those considerations that establishes the circumstances to which the principle of the least restrictive outcome is to be applied.
[42] Just because a community-based sentence could have been imposed does not make it the least restrictive option available in the circumstances. Judge Harvey clearly concluded that a community-based sentence was not appropriate and that a restrictive sentence was required. That was also the recommendation of the pre- sentence report writer. Judge Harvey’s conclusion was certainly open to him, even if another judge might have reached a different conclusion.
[43] In these circumstances, I do not consider that Judge Harvey was in error or that the sentence he imposed was manifestly excessive.
Result
[44]The appeal is dismissed.
G J van Bohemen J
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