Tumu v Police - [2021] NZHC 1571

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…

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.

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Details

Case: [2021] NZHC 1571
Decision Date: 29 June 2021

CaseChat Overview and Summary

Ruben David Tumu appeals against the sentence of five months' home detention imposed by Judge David J Harvey in the District Court at Manukau. Mr Tumu had pleaded guilty to assaulting a person with intent to injure. Counsel for Mr Tumu argues that the sentence is manifestly excessive because the starting point of 16 months' imprisonment set by Judge Harvey was too high, the Judge did not give enough weight to Mr Tumu's personal circumstances, and a sentence of home detention was not the least restrictive outcome appropriate in the circumstances. The Police oppose the appeal. The court considers the starting point adopted by Judge Harvey, whether the Judge erred by failing to take into account Mr Tumu's personal circumstances, and whether the sentence imposed was manifestly excessive. The court finds that the starting point was wrong in principle and should have been 12 months' imprisonment. However, the court does not consider that a sentence of five months' home detention is manifestly excessive and dismisses the appeal. The court finds that the sentence imposed by Judge Harvey was not manifestly excessive and was not the least restrictive option. The appeal is dismissed.

Orders