TUSITALA v NEW ZEALAND POLICE [2017] NZHC 271

TUSITALA v NEW ZEALAND POLICE [2017] NZHC 271 [27 February 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000387[2017] NZHC 271BETWEEN ALOSIO TUSITALAAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2017Appearances: T Clee for AppellantN Dobbs for RespondentJudgment: 27 February 2017(ORAL) JUDGMENT OF LANG J[on appeal against conviction and sentence][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 offenceBurglary 18 January 2016Receiving (over $1000) Between 16 March 2014 and 9 June 20155 x Driving whilst disqualified (3rd and subsequent)9July 201522 April 20169 July 20159 June 20159 July 20152 x Possession of cannabis 9 June 20152 June 2016Cultivates cannabis 30 May 2016Common assault 25 February 20162 x Contravention of protection order24 July 20167 August 2016Giving false details as to own identity9 July 20155 x Failure to appear 10 July 201513 April 201629 October 201512 August 2015The 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 per1 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'spossession.[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 ofhis sentence. As matters currently stand, he must serve approximately eight monthsof his sentence before being eligible for parole. Mr Tusitala obviously does notfancy his chances of being released on parole at an early date.Decision[7] Following a guilty plea, this Court will only interfere in exceptionalcircumstances that demonstrate a miscarriage of justice will result if the conviction is2 Crimes Act 1962, s 247(b).not overturned. The general principle is that, where an appellant fully appreciatesthe merits of his or her position, he or she must live with the consequences of theplea.3[8] In the present case it is impossible for Mr Tusitala to contend a miscarriage ofjustice has occurred. First, even on his own view of the facts, the value of thecomputer in question was just $100 less than the amount required to reduce themaximum sentence from seven years imprisonment to 12 months imprisonment.Secondly, the sentence imposed on the receiving charge was but one of many factorsto 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 toreflect mitigating factors such as remorse. He has now acquired no fewer than 96previous convictions for offending of different types. One would have thought thatany ability to obtain a discount for remorse would have been long gone.[9] Finally, Mr Tusitala has received the benefit of the Judge's mathematicalerror. 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 JSolicitors:Kayes Fletcher Walker, Auckland3 R v Le Page [2005] 2 NZLR 845 (CA); R v Ripia [1985] 1 NZLR 122.