Tusitala v Police

[2017] NZHC 271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000387 [2017] NZHC 271

BETWEEN

ALOSIO TUSITALA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 February 2017
Appearances:	T Clee for Appellant N Dobbs for Respondent
Judgment:	27 February 2017

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

TUSITALA v NEW ZEALAND POLICE [2017] NZHC 271 [27 February 2017]

[1]      Mr Tusitala pleaded guilty in the District Court to a raft of charges relating to different types of offending.  On 27 October 2016, Judge Lovell-Smith sentenced Mr Tusitala to 25 months imprisonment, or two years one month imprisonment.1    He now appeals against sentence on the basis that an error in the sentencing process occurred to the extent that the end sentence was manifestly excessive.

The charges

[2]      The charges to which Mr Tusitala pleaded guilty were as follows:

Charge

Date of offence

Burglary

18 January 2016

Receiving (over $1000)

Between 16 March 2014 and 9 June 2015

5 x Driving whilst disqualified

(3rd and subsequent)

9July 2015

22 April 2016
9 July 2015
9 June 2015
9 July 2015

2 x Possession of cannabis

9 June 2015

2 June 2016

Cultivates cannabis

30 May 2016

Common assault

25 February 2016

2 x Contravention of protection

order

24 July 2016

7 August 2016

Giving  false  details  as  to  own

identity

9 July 2015

5 x Failure to appear

10 July 2015

13 April 2016
29 October 2015
12 August 2015

The Judge’s decision

[3]      The Judge selected the burglary charge as the lead charge.   She selected a starting point of 18 months imprisonment to reflect Mr Tusitala’s culpability on that charge alone.  She then increased the sentence by 14 months to reflect the remaining offences to which Mr Tusitala had pleaded guilty.  She added an uplift of six months in respect of Mr Tusitala’s previous convictions to reach an end starting point of 38

months imprisonment.  The Judge then allowed a discount of four months, or ten per

1      New Zealand Police v Tusitala [2016] NZDC 21409.

cent, to reflect mitigating factors such as remorse.  Finally, she applied a discount of seven months, or 20 per cent, to reflect Mr Tusitala’s guilty pleas.

[4]      On my calculations this ought to have resulted in an end sentence of two years four months imprisonment.  It appears that the Judge erred mathematically in imposing a sentence of just two years one month imprisonment.

The ground of appeal

[5]      The sole ground of appeal relates to the receiving charge.  This charge relates to a desktop computer that Mr Tusitala admitted receiving at some stage between

16 March 2014 and the date of his arrest.  The charge was laid on the basis that the computer had a value of more than $1,000 at the time it was found in Mr Tusitala’s possession.

[6]      Mr Clee contends on Mr Tusitala’s behalf that the computer would have been worth less than $1,000 by the time it was found on 9 June 2015.   He bases this submission on the depreciation rate for desktop computers published by the Inland Revenue  Department  for  tax  deduction  purposes.    He  submits  that  Mr Tusitala should therefore have been charged on the basis that the computer had a value of approximately  $900.    The  maximum  penalty  that  Mr  Tusitala  could  receive  in respect  of  that  offence  would  therefore  have  been  reduced  from  seven  years

imprisonment to 12 months imprisonment.2   Mr Clee submits that this Court should

intervene to reduce the end sentence by one month to reflect this error.  This would bring the end sentence down to two years imprisonment, which in turn would mean that Mr Tusitala will be automatically eligible for release after serving 12 months of his sentence.  As matters currently stand, he must serve approximately eight months of his sentence before being eligible for parole.   Mr Tusitala obviously does not fancy his chances of being released on parole at an early date.

Decision

[7]     Following a guilty plea, this Court will only interfere in exceptional circumstances that demonstrate a miscarriage of justice will result if the conviction is

2      Crimes Act 1962, s 247(b).

not overturned.  The general principle is that, where an appellant fully appreciates the merits of his or her position, he or she must live with the consequences of the plea.3

[8]      In the present case it is impossible for Mr Tusitala to contend a miscarriage of justice has occurred.   First, even on his own view of the facts, the value of the computer in question was just $100 less than the amount required to reduce the maximum sentence from seven years imprisonment to 12 months imprisonment. Secondly, the sentence imposed on the receiving charge was but one of many factors to be taken into account by the Judge in setting the effective end starting point. Thirdly, Mr Tusitala was extremely fortunate to receive a discount of ten per cent to reflect mitigating factors such as remorse.  He has now acquired no fewer than 96 previous convictions for offending of different types.  One would have thought that any ability to obtain a discount for remorse would have been long gone.

[9]      Finally, Mr Tusitala has received the benefit of the Judge’s mathematical error.  He should now be serving a sentence of two years three months imprisonment rather than the existing sentence of two years one month imprisonment.   He can consider himself fortunate that this Court has not exercised its power to increase the sentence to that which the Judge undoubtedly intended.

Result

[10]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Auckland

3      R v Le Page [2005] 2 NZLR 845 (CA); R v Ripia [1985] 1 NZLR 122.