Tuwairua v Police - [2020] NZHC 3376

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000040

[2020] NZHC 3376

BETWEEN
LIONEL JAMES APANUI TUWAIRUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 December 2020

Appearances:

D C McCaskill for Appellant C J Bernhardt for Respondent

Judgment:

17 December 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 December 2020 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date 17 December 2020

Introduction

[1] Lionel Tuwairua pleaded guilty to one charge of breaching a protection order. He was sentenced by Judge Turner to nine months’ imprisonment on 3 November 2020.1 Mr Tuwairua appeals that sentence on the basis it was manifestly excessive.

1 Police v Tuwairua [2020] NZDC 22867.

TUWAIRUA v NEW ZEALAND POLICE [2020] NZHC 3376 [17 December 2020]

Facts

[2] Mr Tuwairua and the victim were previously in a relationship, and have one child together. In February 2013 a final protection order was issued against Mr Tuwairua in favour of the victim.

[3] On 1 October 2020, Mr Tuwairua contacted the victim on Facebook Messenger about their child. The victim told him to stop messaging her. Mr Tuwairua continued to message the victim frequently over the next two days in increasingly derogatory terms, despite her repeatedly telling him to stop.

District Court decision

[4] Judge Turner considered the communications were unwarranted, abusive and distressing to the victim and her family. He noted this was Mr Tuwairua’s 13th breach of the protection order since it was issued in 2013. Mr Tuwairua was sentenced to intensive supervision for the most recent breach in September 2019, then a very short time later was sentenced to imprisonment for behaving threateningly towards his mother. He had numerous other convictions for violence between 2004 and 2020, including family harm violence against the same victim.

[5] The Judge disagreed with the assessment in the pre-sentence report that Mr Tuwairua posed a moderate risk of re-offending and a moderate risk of harming others. He considered Mr Tuwairua acts out of a sense of entitlement, and becomes abusive when he does not get his way. He found it was necessary to impose a deterrent sentence.

[6] Judge Turner adopted a starting point of six months for the breach of protection order. He uplifted that by six months for the previous breaches of the order, noting such was necessary for deterrence purposes. For Mr Tuwairua’s guilty plea, the Judge allowed a full 25 per cent discount. He then noted:2

2 At [12].

You have expressed some remorse and insight into your behaviour. It is difficult to know whether that it is [sic] genuine, difficult because over a period of seven years you have continued to breach the sentence. I take that into account.

[7] The end sentence imposed was nine months’ imprisonment. The Judge did not allow leave to apply for a substituted sentence because he considered such a sentence would not meet the relevant purposes and…

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: [2020] NZHC 3376
Decision Date: 17 December 2020

CaseChat Overview and Summary

Lionel James Apanui Tuwairua has appealed the nine-month sentence imposed by Judge Turner on 3 November 2020 for breaching a protection order. The appeal was heard by Dunningham J on 15 December 2020, and judgment was delivered on 17 December 2020. The primary legal issue before the Court was whether the sentence imposed was manifestly excessive. The Court found that it was not.

The Court agreed with the submissions of the Police that the starting point of six months was generous. The Court considered that Mr Tuwairua sent a high volume of abusive messages over two days, despite the victim’s consistent refusal to communicate with him. The starting point could well be seen as lenient. The Court considered the uplift of six months was warranted given Mr Tuwairua’s history of breaches of the protection order and family violence. The Court was not satisfied that the uplift led to a manifestly excessive result. The Court also considered the sentence was not manifestly excessive when regard was had to the strong need for deterrence, denunciation, accountability and protection of the victim in this case. The Court further considered that the Judge was not wrong to decline a sentence of intensive supervision given Mr Tuwairua’s repeated breaches of the protection order.

The appeal was dismissed. The sentence of nine months’ imprisonment remains in place.

Orders