Tupou v Police
[2025] NZHC 99
•10 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000551
[2025] NZHC 99
BETWEEN REEGAN TUPOU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2024 Counsel:
E J Butler for Appellant A Lin for Respondent
Judgment:
10 February 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 10 February 2025 at 11.45 am
Registrar/Deputy Registrar
Solicitors:
Public Defence Service (Manukau) for Appellant Kayes Fletcher Walker (Manukau) for Respondent
REEGAN TUPOU v NEW ZEALAND POLICE [2025] NZHC 99 [10 February 2025]
Introduction
[1] Mr Tupou appeals his sentence of three years and four months’ imprisonment imposed by Judge J C Moses on 2 September 2024.1 He argues that the sentence is manifestly excessive for two reasons:
(a)the overall starting point assessed by the Judge was too high; and
(b)there should have been a discount in the 10 per cent to 15 per cent range for Mr Tupou’s personal factors.2
[2] I must allow Mr Tupou’s appeal if I find that the Judge made an error and that a different sentence should be imposed.3
The Judge’s sentence
[3] Mr Tupou pleaded guilty to 11 charges, 10 of which arose from three unrelated episodes of offending. The Judge described the offending sparely:
[1] Mr Tupou, you are for sentence today before me on a large number of charges. The first is a charge of breaching release conditions from parole. That occurred on 25 May last year when you failed to report to your probation officer.
[2] On 5 August, you were involved in the burglary of a residence along with a theft of some $480 and the brief facts of that offending are that you and your then partner went to an address in Sunnyhills on 5 August. You gained entry into the property through a rear bedroom window. You took several items from the address. You were observed by the neighbours of that address loading up their BMW vehicle with the stolen items. You were confronted by the neighbours. You told them you were related and then drove off in your vehicle.
[3] A short time later, you had gone to a Countdown supermarket in Mangere, you loaded up $480 worth of items into a trolley and then left the store without making any attempt to pay for those items.
[4] On 14 August, just over a week later, there was an incident involving five charges, those of dangerous driving, driving whilst disqualified,
1 Police v Tupou [2024] NZDC 21067.
2 Mr Tupou obtained a report on his background for the purposes of his sentencing on other charges on 2 December 2021. This was not before Judge Moses. I gave leave for the report to be evidence in this appeal, a course which was not opposed by the Crown.
3 Criminal Procedure Act 2011, s 250(2).
assaulting a police officer with a vehicle using that vehicle as a weapon, failing to remain stopped and failing to ascertain any injury after an accident.
[5] The very brief facts of those charges are that you had been disqualified in December 2021 for two years and one day ending on 1 August 2025. On 14 November, you had driven a vehicle into a petrol station on Kerrs Road in Wiri. Police conducted a traffic stop with you by activating their red and blue flashing lights and they parked up behind you. You then reversed into the police vehicle where Constable Wagstaff was sitting causing damage to the front of the patrol vehicle. You then accelerated forward and drove out of the petrol station. You travelled north at excessive speed driving on the wrong side of the road for approximately 150 metres to overtake vehicles. Police lost sight of your vehicle. You were later seen walking along Weymouth Road in Manurewa. You had not stopped to see if anyone had been injured after causing that accident.
[6] On 1 March this year, you did not turn up to court. On 14 March, there are three charges namely unlawfully using a motor vehicle, driving in a dangerous manner and driving whilst disqualified for a third or subsequent occasion.
[7] A car was stolen on 5 April this year from the Highbrook Drive carpark. At 2.30 pm on 14 April, you were driving that stolen vehicle. Police tried to block the vehicle at a petrol station in Cavendish Drive. You evaded police driving on the grass verge and footpath before crossing the four live lanes of Cavendish Drive causing other road users to take evasive action.
[8] You were located a short time later after abandoning the vehicle and running into Puhinui Park. Checks showed that you were a disqualified driver.
[4] The Judge took the burglary as the lead charge and assessed a starting point of 24 months’ imprisonment. He did not mention the shoplifting charge.
[5] The Judge then turned to the offending which took place on 14 November 2023, which included the ramming of the police vehicle. The Judge uplifted the starting point by 12 months, commenting that a standalone starting point might have been 20 months.
[6] On the third set of offending (which occurred on 14 March 2024), the Judge imposed an uplift of eight months and commented that, on a standalone basis, the offending easily warranted a starting point of 12–15 months’ imprisonment.
[7]The overall starting point was, therefore, 44 months’ imprisonment.
[8] The Judge reduced the starting point by 20 per cent to take account of Mr Tupou’s pleas of guilty and he allowed a further reduction of one month because of minor rehabilitation work completed by Mr Tupou while in custody.
[9] Finally, the Judge imposed an uplift of six months to take account of Mr Tupou’s criminal history and the fact that the offending took place while he was on bail.
The appeal
[10] Mr Butler for Mr Tupou submits that although the starting point of two years’ imprisonment for the burglary charge is within range, the uplifts totalling 20 months’ imprisonment for the subsequent two sets of offending are excessive. In his submission, the Judge failed to give proper recognition to the principle that the final sentence must reflect the overall totality of the offending. Mr Butler submits that an overall uplift of 15 months’ imprisonment is appropriate:
27It is submitted the offending before the Court was of a low-moderate or moderate level.
28The 14 November 2023 charges involved Mr Tupou reversing into a police vehicle containing a Constable, being the assault with a weapon, and proceeding to engage in a brief period of dangerous driving [subsequently being] located by the police. The offending appears to be short in duration and the assault with a weapon of a lower level, no injuries were sustained as a result of the offending.
29Similarly, the offending from 14 April 2024 is of a low moderate level. It involved Mr Tupou driving a stolen vehicle and driving across a grass verge and footpath in order to evade police.
30It is acknowledged there are inherent dangers to the public and other road users for this type of offending, however, in counsel’s submission the offending overall can be categorised as of a low moderate or moderately serious level. The 18 months disqualification from driving also addressed the public safety component of this offending.
[11] As to the weight which should be given, on appeal, to the report on Mr Tupou’s background (the s 27 report), Mr Butler points out that the Judge at the 2021 sentencing gave Mr Tupou a 15 per cent reduction for his background and for his addiction problems. Mr Butler summarises:
47In brief the section 27 report outlines the following regarding Mr Tupou:
•Mr Tupou had a difficult [upbringing] commencing in his childhood years when there was CYFS involvement through being abandoned.
•Mr Tupou’s home life was marred with violence and abuse.
•Mr Tupou was subjected to severe “beatings” from his step-father leaving him with bruises and not attending school.
•From a young age Mr Tupou associated with non-prosocial peers and negative influences commencing cannabis use.
•Mr Tupou began using cannabis and alcohol from eleven years of age followed by methamphetamine use from around 13 or 14 years of age.
•Mr Tupou was involved with gangs, eventuating in to becoming a patched member of the Killer Beez, although he now maintains he has “retired” from the gang.
•Addiction caused Mr Tupou to detach and isolate himself from his family.
•Mr Tupou throughout most of his life had a significant disconnect from his family, heritage and cultural lineage.
48Mr Tupou did not engage with the pre-sentence report process, however, the report writer noted:
Records provide that Mr Tupou has completed the following interventions: CADS completed 2019. The Drug Treatment programme at Auckland Prison completed in 2022 and the Departmental Medium Intensity Rehabilitation Programme in 2022.
Analysis
[12]I have assessed for myself the seriousness of Mr Tupou’s offending.
[13] First, the charge of breaching his release conditions should not be treated as irrelevant. It sets the scene for the offending which followed.
[14] Mr Tupou is 40 years of age. He has a very lengthy record of offending. He has served three terms of imprisonment. On 2 December 2021, he was sentenced to two years and three months’ imprisonment on 30 charges which included nine charges of driving while disqualified (third or subsequent offence), one charge of breaching a
prison release condition and three charges of failing to answer his bail. He was released from prison on 5 December 2022 and failed to report to his probation officer. He was arrested, charged and on 6 June 2023, was granted bail.
[15] On 5 August 2023, the first set of further offending occurred. I note that the Judge did not record that an aggravating factor of the burglary was that household items with an estimated worth of $18,930 were stolen and nothing has been recovered. There is no possibility of reparation.
[16] Further, later in the same day, far from being deterred by the confrontation with the neighbour, Mr Tupou stole $480 of goods from the Countdown supermarket in Māngere.
[17] Mr Tupou was arrested for this offending on 14 August 2023. On 3 November 2023, he was granted electronically monitored bail and promptly absconded.
[18] The next set of offending occurred on 14 November 2023. I accept that the charge of assaulting the police officer by ramming their car was the most serious of the offences. But he also committed his 10th offence of driving while disqualified (third or subsequent) and drove dangerously. The offences for which he was sentenced on 2 December 2021 included a charge of dangerous driving. The 14 November 2023 charges included also a charge of failing to stop or ascertain injury after an accident. On 18 February 2019, Mr Tupou was sentenced to three months’ imprisonment for failing to stop or ascertain injury after an accident.
[19] On 21 February 2024, Mr Tupou was re-admitted to electronically monitored bail, this time to the Grace Foundation. However, he absconded the same day. He did not appear for his case review hearing on 1 March 2024 and a warrant for his arrest was issued.
[20] Mr Tupou’s final set of offending occurred on 14 March 2024. There are further charges of dangerous driving and driving whilst disqualified (third or subsequent), his 11th iteration of the latter offence.
[21] I note that a charge of driving while disqualified (third or subsequent) carries a maximum penalty of two years’ imprisonment.4
[22] By my count, Mr Tupou has offended while on bail on 11 separate occasions, committing a total of 40 offences.
[23] In my view, the charges of driving while disqualified (third or subsequent) which Mr Tupou incurred for his offending on 14 November 2023 and 14 March 2024 would, on a standalone basis, attract starting points of over 12 months’ imprisonment.
[24] It follows that I think Judge Moses was light in his assessment of the starting points for the two sets of offending and generous in his reductions for totality.
[25] I consider, also, that the uplift of six months to take into account both Mr Tupou’s criminal history and the fact that the offending took place while he was on bail is generous to Mr Tupou. The history I have set out above speaks for itself.
[26] The first ground of appeal does not succeed. The Judge’s overall starting point, on my assessment, was well within the range available to him.
[27] The second ground of appeal, that Mr Tupou is entitled to rely on the s 27 report for a further discount, is made out. The issue is the extent of the discount.
[28] I accept that Mr Tupou’s background continues to contribute to his offending. But he is now 40 years of age and he poses a high risk of re-offending. He pays no regard to court orders which are aimed at regulating or reducing his offending. He poses a clear and continuing danger to the public.
[29] In my view, the principles that mandate regard to the reduction in moral culpability resulting from a deprived background must largely give way, in Mr Tupou’s case, to the principles of denunciation and deterrence in the context of protecting the community from a recidivist offender. I would allow a discount of five per cent for the matters set out in the s 27 report; around two months.
4 Land Transport Act 1998, s 32(1)(a) and (4).
[30] Given my view that the overall starting point was well within the range available to the Judge, I do not find the end sentence of three years and four months’ imprisonment to be manifestly excessive. Even if I am wrong in this, I would decline to impose a sentence which would be different by two months. That would be tinkering.
Decision
[31]The appeal is dismissed.
Brewer J
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