TUTUKI v POLICE [2021] NZHC 2808

TUTUKI v POLICE [2021] NZHC 2808 [20 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-404[2021] NZHC 2808BETWEEN ANDREW JOHN TUTUKIAppellantAND NEW ZEALAND POLICERespondentHearing: 19 October 2021 (via AVL)Counsel: C S Fredric for Appellant J A E Tausi for RespondentJudgment: 20 October 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 20 October 2021 at 2.30 pmRegistrar/Deputy RegistrarSolicitors:Fredric Law (Auckland) for AppellantKayes Fletcher Walker (Manukau) for RespondentIntroduction[1] On 20 July 2021, Judge JH Lovell-Smith sentenced Mr Tutuki to 18 months' imprisonment.1 Mr Tutuki contends that the Judge should have either commuted that sentence to one of home detention or granted leave for him to apply for home detention.2[2] An appeal against a refusal, or failure, to commute a sentence of imprisonment to one of home detention proceeds by way of rehearing. I have to make my own decision, although before disturbing the Judge's decision I would have to be satisfied she made a material error.Background[3] Mr Tutuki came before Judge Lovell-Smith with an extensive history of criminal offending. The Judge had earlier (29 March 2021) given him a sentence indication on some of the charges for which he was to be sentenced. Mr Tutuki had accepted the sentence indication. But, while on bail awaiting sentence, he went on to commit further offences. Therefore, Judge Lovell-Smith had to start again and had to consider the appropriate sentence for 12 charges:(a) using a document for pecuniary advantage (x7); 3(b) driving whilst suspended (x2); 4(c) unlawfully takes motor vehicle; 5(d) unlawfully interferes with motor vehicle; 6 and(e) obtains by deception (over $1000). 7[4] Judge Lovell-Smith also had to re-sentence Mr Tutuki in relation to the following four charges (because he had breached the sentence of community work):1 Police v Tutuki [2021] NZDC 14623.2 Sentencing Act 2002, s 80I.3 Crimes Act 1961, s 228(1)(b): maximum penalty seven years' imprisonment.4 Land Transport Act 1998, ss 32(1)(c) and 32(3): maximum penalty three months' imprisonment, a fine not exceeding $4,500, and a mandatory minimum disqualification of six months.5 Crimes Act 1961, s 226(1): maximum penalty seven years' imprisonment.6 Crimes Act 1961, s 225(2): maximum penalty two years' imprisonment.7 Crimes Act 1961, ss 240(1)(a) and 241(a): maximum penalty three years' imprisonment.(a) receiving over $1000; 8(b) speaks threateningly; 9(c) wilful trespass; 10 and(d) theft under $500. 11[5] The Judge adopted an overall starting point of 22 months' imprisonment for the 12 charges. The Judge added two months for the re-sentencing on the other four charges, making a total starting point of 24 months' imprisonment. The Judge gave a full discount of 25 per cent for guilty pleas, resulting in the end sentence of 18 months' imprisonment.[6] No issue is taken with the end sentence. I do not have to consider it.Appellant's submissions[7] The first ground of appeal is that the Judge should have sentenced Mr Tutuki to home detention at his proposed bail address. The Judge did not address this issue in her sentencing notes because, during earlier submissions, the Judge had ruled that the address was unsuitable.[8] The PAC report dated 15 July 2021 assessed the occupant of the address, Mr Tutuki's partner, as being unsuitable due to concerns around firearms-related incidents.[9] Mr Tutuki's partner was not a prosocial individual. She was subject to a sentence of intensive supervision as well as community detention. In addition, the police advised that the partner was known to use or carry firearms without holding a licence. Further, she was facing active drugs charges, including possession of methamphetamine for supply and possession of cannabis for supply.8 Crimes Act 1961, ss 246 and 247(a): maximum penalty seven years' imprisonment.9 Summary Offences Act 1981, s 21(1)(a) and (3): maximum penalty three months' imprisonment or a fine not exceeding $2,000.10 Trespass Act 1980, ss 3 and 11(2)(a): maximum penalty three months' imprisonment or a fine not exceeding $1,000.11 Crimes Act 1961, ss 219 and 223(d): maximum penalty three months' imprisonment.[10] Judge Lovell-Smith provided Mr Tutuki with an opportunity to seek an adjournment in order to respond to the criticisms of his partner, and in particular her involvement with firearms. Mr Tutuki declined that opportunity.[11] Mr Fredric for Mr Tutuki tells me that he has now been provided with information to the effect that the partner's active charge of possession of ammunition was withdrawn shortly after Mr Tutuki was sentenced. The partner does not face any active firearms charges, nor does she have any convictions for firearms offending. However, the partner still faces the charges of possession of methamphetamine for supply and possession of cannabis for supply. Mr Fredric submits:45. In terms of the "firearms incidents at the proposed address", [Mr Tutuki's partner] has advised that no firearms incidents of any kind have occurred since she began living at the address in 2019. It is submitted that the comments in the PAC report regarding "firearms incidents" are vague and there is no evidence to demonstrate that [Mr Tutuki's partner] has any proven involvement with firearms.[12] Mr Fredric submits that the restrictions of home detention would make it difficult or impossible for Mr Tutuki to commit further dishonesty offences. Further, Mr Tutuki has never previously been subject to electronic monitoring and accordingly there is nothing before the Court to suggest he would abscond.[13] Alternatively, Mr Fredric submits that if Mr Tutuki is assessed as being an appropriate candidate for home detention, but the proposed address is considered unsuitable, then leave to apply for home detention in the future should be granted.Discussion[14] Mr Tutuki is 31 years old. He has numerous previous convictions, many of which are similar to the convictions on which he was sentenced by Judge Lovell- Smith. He has previously served sentences of imprisonment in respect of similar charges.[15] Further, Mr Tutuki has a significant record of non-compliance with court orders and breaches of sentences.[16] Judge Lovell-Smith took these matters into account and considered the purposes and principles of the Sentencing Act:[9] I have to have regard to the purposes and principles of the Sentencing Act 2002, and in particular to hold you accountable for the significant number of victims that have been seriously affected by your offending and the community at large. In terms of outcomes I have to have regard to the consistency of sentencing and the maximum penalties that each charge is subject to, and impose the least restrictive outcome. As I have said before the significant aggravating feature is that no previous interventions have prevented you from offending. It is fair to say your offending just continues unabated, and you have not taken advantage of the various rehabilitative sentences that have been offered to you.[17] It is clear that the Judge did not consider Mr Tutuki to be a suitable person for home detention.[18] It is clear also that the Judge did not consider the proposed bail address to be suitable. That was an available conclusion. It is one I agree with. Mr Tutuki's partner was clearly not a prosocial person. He would not be under any constraint from her as to criminal activity. His partner was facing drugs-related charges and Mr Tutuki has drugs-related convictions. Home detention does not prevent a person from being involved in the criminal underworld, particularly in relation to drugs.[19] Mr Fredric's submission that Mr Tutuki has never previously been subject to electronic monitoring, and that its restrictions are greater than those of the orders and sentences he has breached previously, is correct. But, the point is that home detention will not be available where a person has a significant relevant criminal record, including a record of non-compliance, such that imprisonment is, having regard to the principles and purposes of sentencing, the least restrictive outcome available.[20] The first ground of appeal does not succeed.[21] As to whether the Judge erred by failing to grant leave to Mr Tutuki to apply for home detention at a suitable address, I find that the Judge did not err. As I have said, the Judge did not consider Mr Tutuki, on these charges, a suitable candidate for home detention.[22] I agree with Mr Tausi's submission:7.18 there can be no incursion on the 'significant' margin of appreciation afforded a sentencing Judge in determining that home detention was not appropriate on the above facts. Her Honour was correct to find that the least restrictive sentence appropriate in the circumstances was one of imprisonment. Any sentence imposed, in these circumstances, should underscore the purposes of denunciation and deterrence which her Honour correctly identified.[23] The alternative ground of appeal does not succeed.Decision[24] The appeal is dismissed.________________________________Brewer J