Tuuta v The Queen - [2015] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-000001 [2015] NZHC 1194

BETWEEN
SHANE BERNARD TUUTA

Appellant

AND

THE QUEEN Respondent

Hearing: 29 May 2015 (By way of audio visual link)

Appearances:

D G Slater for Appellant
S N McKenzie for Respondent

Judgment:

29 May 2015

ORAL JUDGMENT OF GENDALL J

[1] This is an appeal by the appellant, Mr Shane Bernard Tuuta, against sentence for drug offending.

Introduction

[2] On 29 January 2015 following a guilty plea, the appellant, Mr Tuuta, was sentenced in the District Court at Invercargill to two years three months imprisonment on:

(a) one charge of cultivating cannabis;1

(b) three     charges    of     offering     to    supply     cannabis (represents

(c)

144 offences);2

three charges of possession of cannabis for supply;3

1      Misuse of Drugs Act 1975, s 9(1).
2      Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c).

TUUTA v R [2015] NZHC 1194 [29 May 2015]

(d) possession of non-approved psychoactive substance;4

(e) three charges of being an unlicensed person selling alcohol (and that represented 28 offences).5

[3] The appellant now appeals the sentence on the basis the starting point and end sentence here were manifestly excessive.

Facts of the offending

[4] Given what was said to be an increase in the number of people possessing and consuming home brew alcohol in the Invercargill region, the Invercargill police launched an investigation. Mr Tuuta, the appellant, was identified as a person who was responsible for distilling and selling bottles of home brew. As part of the ongoing investigation, the police intercepted his SMS message communications for specified periods of time.

[5] In relation to the alcohol offending, between the dates of 11 May and 31 July

2014, the intercepted messages showed the defendant sold home brewed alcohol on at least 28 occasions.

[6] In relation to the offering to supply offending, between the dates of 11 May and 2 August 2014, the defendant made 144 offers to supply cannabis. These offers including the following:

· 80 x $50 zip lock bags of cannabis;

· 34 x $20 - $25 “tinnies”;

· 3 x offers of sale of ½ ounce quantities;

· 8 x offers of full one ounce quantities.

3      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c).
4      Psychoactive Substances Act, s 71,
5      Sale and Supply of Alcohol Act 2012, s 233.

[7] The appellant it seems was sourcing the cannabis by growing it himself and by purchasing large quantifies, primarily by the ounce, and on-selling this in smaller quantities.

[8] On 14 August 2014, the police executed a search warrant at the appellant’s address. He co-operated with the police and assisted with the search. He showed them various locations where the cannabis was stored. This gave rise to the cultivating charge.

[9] When interviewed, the appellant admitted cultivating and selling cannabis over a three month period along with previously selling home brew alcohol. He said he was ashamed and remorseful and thanked the police for executing the search warrant as he was…

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 The Queen

Details

AGLC: Tuuta v The Queen [2015] NZHC 1194
Case: [2015] NZHC 1194
Decision Date: 29 May 2015

CaseChat Overview and Summary

In this appeal, Shane Bernard Tuuta, the appellant, contests the sentence imposed on him for drug-related offenses, arguing that it is manifestly excessive. The appellant was convicted and sentenced by Judge Saunders in the District Court at Invercargill on January 29, 2015, to two years and three months in prison. He was found guilty of cultivating cannabis, offering to supply cannabis, possessing cannabis for supply, possessing a non-approved psychoactive substance, and being an unlicensed seller of alcohol. The appellant's appeal hinges on the argument that the starting point and end sentence were manifestly excessive.

The court considered the nature and scale of the appellant's offending, which included cultivating cannabis, offering to supply it, and selling home-brewed alcohol. The appellant admitted to cultivating and selling cannabis over a three-month period and selling home-brew alcohol on at least 28 occasions. The court acknowledged the commercial aspect of the appellant's activities and the number of offers to sell, which led to the imposition of a sentence within the available range. The court found the sentence imposed by Judge Saunders to be appropriate, taking into account the commercial nature of the offending and the appellant's early guilty plea and cooperation.

The court found that the starting point of three years was within the available range and the sentence imposed was not manifestly excessive. The court noted that the level of offending in the present case was similar to that in other cases, such as Tomars, where a starting point of three years was upheld. The court also considered the appellant's self-referral to address his drug problem, which was not before the District Court. However, the court found that the sentence imposed was appropriate and dismissed the appeal.

Orders