MICHAEL SOLOGA TOETA AND NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS
[2023] NZHC 888
•21 April 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-23
[2023] NZHC 888
BETWEEN MICHAEL SOLOGA TOETA
Appellant
AND
NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 20 April 2023 Appearances:
A J Greaves for the Appellant
A M Harvey for the Respondent
Judgment:
21 April 2023
JUDGMENT OF HARLAND J
Introduction
[1] Mr Michael Toeta was sentenced by Judge Couch in the District Court1 to 17 months’ imprisonment in respect of one charge of injuring with reckless disregard2 and one charge of common assault.3 He appeals this decision on the grounds that the starting point was too high and insufficient discounts were provided, leading to a manifestly excessive sentence.
[2] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there
1 New Zealand Police v Toeta [2023] NZDC 1437.
2 Crimes Act 1961, s 189(2); maximum penalty 5 years’ imprisonment.
3 Crimes Act, s 196; maximum penalty 1 year imprisonment.
TOETA v POLICE [2023] NZHC 888 [21 April 2023]
has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.5 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
Facts upon which sentence was based
[3] Mr Toeta was sentenced based on an agreed summary of facts, arising out of an incident when he and his partner were refused entry to a poker event at a local gastro pub on 13 June 2023. Reference is made in the summary of facts to Mr Toeta and his partner attending previous poker events during which Mr Toeta’s partner has been aggressive to the poker host and refused entry to play.
[4] On 13 June 2023, Mr Toeta and his partner were refused entry to play, this led to an altercation between Mr Toeta’s partner and a poker host. The first victim approached the two to try to break up the assault. Mr Toeta went behind the first victim and threw a coward punch, striking the side of his head and face. The victim did not see the punch coming and was immediately rendered unconscious. He fell heavily, striking tables on the way.
[5] Mr Toeta then blocked other people from stopping the initial altercation between his partner and the poker host, saying “let them sort it out”. He threw several punches at two other individuals before being restrained. The first punch was aimed at the victim’s face but he turned around before the impact and was struck in the back. Mr Toeta threw several closed fist punches into a second unknown person’s face. An inference is available that these punches connected.
District Court Decision
[6] The Judge recognised there was no tariff judgment for injuring with reckless disregard but noted the relevance of the factors outlined in the Taueki and Nuku cases.6
4 Criminal Procedure Act, ss 250(2) and 250(3).
5 Ripia v R [2011] NZCA 101 at [15].
6 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372; Nuku v R [2012] NZCA 584, [2013] 2 NZLR
39.
The aggravating factors of the offending identified by the Judge included the blow to the first victim’s head, his vulnerability due to being unaware of the punch, the force of the blow which was sufficient to immediately knock him unconscious, the moderate to serious injury caused, and the fact that further punches were directed at two other individuals before Mr Toeta was able to be restrained.
[7] The Judge rejected the suggestion that Mr Toeta’s culpability was reduced because he was acting in defence of his wife. He determined that Mr Toeta’s motivation was to continue the scuffle in which his partner was involved.
[8] The Judge adopted a starting point of 20 months’ imprisonment in respect of the charge of injuring with reckless disregard, with reference to the decision in Brooking v Police,7 before providing an uplift of three months for the subsequent assaults.
[9] A discount of 25 per cent was provided to reflect Mr Toeta’s prompt guilty pleas. The Judge did not consider any further discount for remorse was warranted in light of Mr Toeta’s statement to the pre-sentence report writer that “I know in my heart what I did was right”.
[10] The end sentence was a term of 17 months’ imprisonment. While the Judge considered home detention an appropriate sentence, he determined that Mr Toeta was unable to provide an appropriate address. He had proposed the address where he and his wife had lived. However, his wife possessed an extensive criminal history, which included violence convictions, she was awaiting sentence for a serious violence offence, and the two had been the subject of Police attention on six occasions since 2021 for family violence incidents.
Submissions
Appellant submissions
[11] Mr Greaves, counsel for Mr Toeta, submitted that the starting point adopted by the Judge was too high. He referred to Brooking v R, which had been relied on by the
7 Brooking v Police [2012] NZHC 3219.
Judge to set the starting point for Mr Toeta. In Brooking, the defendant was charged with wounding with reckless disregard and common assault, following an assault on his wife in respect of which a bystander had attempted to intervene. The bystander had been punched in the face by Mr Brooking.
[12] Mr Greaves highlighted that a global starting point of 24 months was adopted in Brooking, because the assault on the bystander was considered to be a continuation of the same incident. Furthermore, Mr Greaves submitted that, in Brooking, the wounding with reckless disregard charge carried a maximum penalty of seven years’ imprisonment whereas the charge faced by Mr Toeta provided a maximum penalty of five years’ imprisonment.
[13] Even though the Judge was aware of the difference in maximum penalty, Mr Greaves submitted that, in this case, it was undermined by providing the three-month uplift for the assault. He submitted a global approach should have been taken in respect of the offending.
[14] As well, Mr Greaves submitted that Mr Toeta was acting in defence of his wife. While this defence was excessive, he submitted it ought to have reduced Mr Toeta’s culpability for the offending.
[15] Mr Greaves also referred to Mr Toeta’s expression of remorse which, he submitted, was not undermined by Mr Toeta’s statement that he considered he had done the right thing. Mr Greaves noted that Mr Toeta was remorseful for the resulting injuries and was willing to participate in restorative justice.
[16] A discount of between 10 and 15 per cent was submitted to be appropriate to recognise the above factors, which would reopen the possibility of a non-custodial sentence. Given Mr Toeta’s very limited criminal record and the injuries suffered by the victim, Mr Greaves argued the Court could step back from imposing a sentence of imprisonment.
Respondent submissions
[17] Mr Harvey for the Crown submitted that a starting point of 20 months’ imprisonment in respect of the injuring charge was within range, although possibly stern, and he cited several cases where higher starting points were adopted (albeit in the context of more serious offending and injuries suffered). He also submitted that an uplift of three months in respect of the subsequent assaults appropriately reflected Mr Toeta’s increased culpability.
[18] Mr Harvey also submitted that the suggestion Mr Toeta was acting in defence of his partner was not available given the summary of facts upon which he was sentenced. He submitted that Mr Toeta did not seek to stop the assault his partner was involved in, rather, he sought to prevent anyone else intervening in the incident. If anything, Mr Harvey argued, this aggravates Mr Toeta’s position. Overall, he submitted the Judge was right to provide no discount for this factor.
[19] Similarly, the Crown argued that a discount for remorse was not available as Mr Toeta did not believe he had done anything wrong.
[20] Finally, counsel submitted that the sentencing Judge was correct to not impose a non-custodial sentence in circumstances where no suitable address was available but, should such an address emerge, Mr Toeta is able to apply to substitute his sentence given that leave was provided for this to occur.
Analysis
[21] It was available to the Judge, despite the proximity of events, to approach the charges by first ascertaining a starting point in respect of the injuring with reckless disregard charge and then applying an uplift to reflect the assault charge. Taking a global approach was also an available approach. There is nothing inherently defective in either process which prevents the same result or similarly reasonable results being reached.
[22] The Judge, in assessing the aggravating features of the injuring charge, referred to it occurring within the context of further subsequent violence. The Court should be
careful to avoid double counting this factor. Therefore, in considering the starting point for the injuring charge, I consider, with reference to Taueki, that the relevant aggravating factors include:
(a) striking the victim to the head with sufficient force to immediately knock him unconscious;
(b) the vulnerability of the victim because he was punched from behind;
(c) that the punch was delivered to allow the altercation his wife was involved in to continue, even though this factor is not present to a significant extent; and
(d) the moderate to serious injury caused by the offending with the victim suffering from headaches following the event. This factor is also fortuitously not present to as significant an extent as it is in many other cases.
[23] These factors were all considered by the Judge. Most of the cases cited by the Crown involve more serious offending with more severe injuries. They also have higher starting points, but I consider the following cases to be helpful by way of comparison:
(a) Te Puni v Police:8 In this case the offender was a 22 year old male who attacked another young male who was a stranger to him. The defendant engaged the victim in conversation and then punched him. The assault comprised a single violent punch to the head and the victim fell unconscious to the ground. The victim suffered permanent brain damage. The starting point imposed was 24 months’ imprisonment.
(b) Wilson-McAlister v Police:9 In this case, the defendant’s associate became involved in an argument with the female victim at a bar. The defendant positioned himself behind the victim, where she could not see him, and punched her in the right side of her face. She fell to the floor, unconscious.
8 Te Puni v New Zealand Police [2019] NZHC 762.
9 Wilson-McAlister v Police [2021] NZHC 800.
The defendant pleaded guilty to a charge of injuring with reckless disregard, the same charge as this defendant faced. A starting point of two years (or 24 months) was upheld on appeal. Campbell J considered this starting point was supported by the starting point in Te Puni v Police. Although the Judge said that this was despite the defendant in Te Puni being charged with injuring with intent to injure, in fact that charge and the charge of injuring with reckless disregard carry the same maximum penalty of five years’ imprisonment.
[24] I consider that these cases demonstrate that the starting points adopted by the Judge were within range regardless of whether a global approach was taken or an uplift applied.
[25] Further, I do not consider the Judge erred in his approach to the discounts available for mitigating matters.
[26] Mr Greaves suggested that Mr Toeta’s culpability is reduced because he was acting in defence of his wife. I find the Judge did not err in rejecting any such discount. Mr Toeta’s motivation appears to have related to the continuation of the altercation his wife started as opposed to protecting her in any way. The summary of facts to which Mr Toeta pleaded guilty does not support a discount for defence of another.
[27] In relation to remorse, Mr Toeta told the pre-sentence report writer that his actions were ultimately correct and what a “normal husband” would do. He appeared to blame the poker host for forcing him and his wife to act as they did. He stated at one point that he was not actually guilty and intimated the possibility of withdrawing his guilty pleas. When asked about the possibility of addressing his issues with violence, Mr Toeta said that he had not done anything, so there was no reason for such an intervention. In these circumstances, the Judge did not err in rejecting a discount for remorse notwithstanding Mr Toeta’s expressed willingness to participate in restorative justice.
[28] In relation to the prospect of a non-custodial sentence, Mr Greaves appeared to suggest the Court should explore it, but he acknowledged at [33] of his submissions
that home detention would be inappropriate due to Mr Toeta’s wife being present at the proposed address. I consider a sentence of home detention at the proposed address would be entirely inappropriate given Mr Toeta’s wife’s extensive record in Australia for violent offending and the number of police callouts for family violence incidents between Mr Toeta and his wife since 2021. I accept that Mr Toeta may feel a sense of grievance about this given that he contends his wife was responsible for the family violence incidents against him but, absent her agreement to move out of the address, it remains unsuitable.
[29] In the absence of a suitable home detention address being available to Mr Toeta, I do not consider a less restrictive sentence appropriately serves the sentencing principles of deterrence or denunciation. Neither would it promote in Mr Toeta a sense of responsibility for the harm he has caused.
[30]I do not consider the sentence to be manifestly excessive.
Result
[31]The appeal is dismissed.
Harland J
Solicitors:
A J Greaves, Christchurch
Raymond Donnelly & Co., Christchurch.
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