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Tuuta v R

Tuuta v R

Case [2019] NZHC 2788 31 October 2019

Appeal

Sentencing

Role in Offending

Personal Mitigating Factors

Remorse

Guilty Plea Discount

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-417

[2019] NZHC 2788

BETWEEN
ISAAC MATOA TUUTA

Appellant

AND

THE QUEEN, NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 29 October 2019

Appearances:

P Heaslip for the Appellant Y Wang for the Respondents

Judgment:

31 October 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 October 2019 at 9:15 a.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr P Heaslip, Barrister, Auckland
Ms Y Wang, Meredith Connell, Office of the Crown Solicitor, Auckland

TUUTA v R [2019] NZHC 2788 [31 October 2019]

[1] Mr Tuuta appeals against sentence following guilty pleas to the following charges:

(a)one charge of possession of methamphetamine for supply;1

(b)one charge of unlawful possession of firearm;2

(c)one charge of unlawful possession of ammunition;3

(d)three charges of driving whilst licence suspended or revoked;4

(e)one charge failing to carry out an obligation in relation to a computer search;5 and

(f)one charge of breach of supervision.6

[2] On 26 August 2019, Judge B A Gibson in the Auckland District Court sentenced Mr Tuuta to two years and six months’ imprisonment, and a driving disqualification period of six months.7

Facts

[3] On 11 February 2019 and 7 March 2019 Mr Tuuta drove while suspended from driving. On 14 March 2019 Mr Tuuta failed to report to a probation officer when required to do so.

[4] The primary offending occurred on 22 March 2019. Police stopped Mr Tuuta’s vehicle and undertook a search. They located 16.3 grams of methamphetamine,
$4,230 cash and a sawn-off shotgun with 11 rounds of ammunition. Mr Tuuta also

1      Misuse of Drugs Act 1975, s 6(1)(f) & (2). Maximum penalty life imprisonment.
2      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment, $5,000 fine.
3      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment, $5,000 fine.
4      Land Transport Act 1998, s 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment,
$4,500 fine.
5      Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
6      Sentencing Act 2002, s 70(b). Maximum penalty three months’ imprisonment, $1,000 fine.
7      R v Tuuta [2019] NZDC 16694.

refused to provide the password of his phone to the Police. As his driver licence was suspended, Mr Tuuta was also charged with driving while disqualified.

District Court decision

[5] The Judge noted that Mr Tuuta is 35 years of age and was deported from Australia, after having lived there for approximately 20 years, as a result of criminal offending. Since arriving in New Zealand he has been generally in employment and has been a good employee. He has an offer of employment when he is able to take it up.

[6] The Judge said that counsel were agreed that Mr Tuuta fell towards the bottom end of band two of Fatu and that a starting point of three years’ imprisonment was appropriate.8 The Judge accepted that suggestion.…

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 Tuuta v R

Details

AGLC: Tuuta v R [2019] NZHC 2788
Case: [2019] NZHC 2788
Decision Date: 31 October 2019

CaseChat Overview and Summary

The appeal concerns the sentence imposed on Isaac Matoa Tuuta following his guilty pleas to possession of methamphetamine for supply, unlawful possession of a firearm and ammunition, driving while his licence was suspended or revoked, failing to carry out an obligation in relation to a computer search, and breach of supervision. The District Court Judge sentenced Tuuta to two years and six months’ imprisonment, and a driving disqualification period of six months. Tuuta appeals the sentence, arguing the starting point for the methamphetamine charge was too high, the uplift for the firearms charges was too harsh, and insufficient credit was given for personal mitigating factors. The Crown submits no material error has occurred, and the sentence imposed by Judge Gibson was well within range. The appeal court focuses on the final sentence imposed rather than its component parts or how the ultimate sentence was reached. The appeal court finds that the starting point should come down in light of Zhang v R. The starting point imposed by the Judge is too high. The appeal court considers that a starting point of two years and a half years’ imprisonment would have been within range for the drug offending. The appeal court also considers the end sentence was too high. The guilty plea discount and the three month discount does not offset the high starting point. The appeal court finds the sentence on the possession for supply of methamphetamine charge is manifestly excessive and imposes a sentence of one year and nine months’ imprisonment.

The appeal is allowed. The sentence on the possession for supply of methamphetamine charge of two years and six months’ imprisonment is quashed and I impose a sentence of one year and nine months’ imprisonment. I impose a post-release condition that Tuuta is to attend such assessment, treatment or other programme as directed by a probation officer. I order forfeiture to the Crown of the shotgun and ammunition seized. I order forfeiture to the Crown of the $4,230 in cash seized.

Orders