R v Togiaono
[2015] NZHC 2783
•10 November 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL OF CO-ACCUSED. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-014382 [2015] NZHC 2783
THE QUEEN
v
MARY TOGIAONO
Hearing: 10 November 2015 Appearances:
C Robertson for Crown
D Wallwork for DefendantSentence:
10 November 2015
SENTENCING REMARKS OF WOOLFORD J
Solicitors/Counsel:
Fletcher Kayes Walker, Auckalnd
D Wallwork, Manukau City
R v TOGIAONO [2015] NZHC 2783 [10 November 2015]
[1] Mary Togiaono, you appear for sentence having accepted a sentence indication that I gave on 29 September 2015.1 You pleaded guilty to two charges, one of being an accessory after the fact to murder and one of being an accessory after the fact to causing grievous bodily harm. I set out in full the facts underlying your offending at the sentence indication hearing, and a copy of the sentence indication will be annexed to these notes. However, I outline the facts of your offending for
completeness.
The facts
[2] In essence, an altercation broke out at a party which you and your partner, Mr Rapana, were attending. You had been changing the music which annoyed the other guests. Chevy Davis confronted you and a heated argument developed in which he apparently punched you. Mr Rapana saw the confrontation and approached Chevy Davis, at which point Rio Davis grabbed Mr Rapana from behind and a struggle ensued. The altercation escalated involving a large group from the party, and Mr Rapana stabbed Rio and Chevy several times with a knife.
[3] For your part, Ms Togiaono, Mr Rapana grabbed you immediately after the offending and with another associate you left the party and drove off. Whilst being escorted to the car, your counsel states that you were made aware of what had happened. You saw someone lying on the ground in a foetal position and heard somebody yell “his guts are hanging out”. Mr Rapana drove you to another house where he hid the knife that had been used in the attack. You remained in the vehicle.
[4] You then drove to your sister’s house and told your sister that there had been a fight and that Mr Rapana had stabbed Rio Davis. The two of you changed your clothing and put it and your shoes into the washing machine and turned it on before driving to your home address. The clothing was later discovered in a police search.
[5] Chevy Davis sustained fatal injuries and died at the scene. Rio Davis was taken to hospital and received medical attention for puncture wounds to his upper
body.
1 R v Togiaono [2015] NZHC 2367.
[6] Ms Togiaono, you are 37 years old and have no previous criminal record. You are the mother of a ten year old son with Mr Rapana, who is your partner of
17 years. You also have a two year old adopted son. You have not worked since you became pregnant with your son in 2003. You say that you do want to work and undertake training which is positive. Your pre-sentence report is also encouraging. The report writer sees you as engaged, forthcoming and motivated to remain offence free. You are assessed as very remorseful for the events that occurred.
[7] Your risk of reoffending is assessed as low, and you have expressed a willingness to engage in drug and alcohol counselling in order to address the role your drinking played in your offending. You say that you have not drunk a considerable amount of alcohol in the past, and attribute some of your actions to the effect of drinking over the course of the day.
Sentencing Act 2002
[8] The sentencing process follows a standard approach under the Sentencing Act
2002 (the Act). I will outline the appropriate starting point before making any allowances for personal, aggravating and mitigating factors. In doing so I have considered the purposes and principles of sentencing as set out in the Act.
Starting point
[9] There is no tariff case for being an accessory after the fact to murder which I
adopted as the lead charge in the sentencing indication.
[10] During the hearing I considered a number of similar cases based on submissions by both Crown and the defence. Based on those, I adopted a starting point of 12 months imprisonment. As I noted, your behaviour did not involve any direct lying to the police, nor act of concealment of the murder weapon and was not directed toward assisting Mr Rapana evade detection for any lengthy period of time. These factors are reflected in a lower starting point.
Mitigating factors
[11] In the sentencing indication I suggested that, as a first time offender, Ms Togiaono, you might be eligible for a previous good behaviour discount. In support of such a discount you have submitted a number of character references which I have considered. It is clear from the letters written on your behalf that you are highly family orientated, with a wide extended family who will provide a strong support network and who see you as being a central carer within that community. Further, you are 37 years old and have no criminal record.
[12] In other cases involving accessory charges, a lack of previous convictions has received a discount of one month’s imprisonment. In my view, a one month discount is also warranted in your case. No other mitigating factors have been highlighted.
[13] Finally I turn to the appropriate discount to take into account your guilty plea. Although you pleaded guilty immediately following the sentence indication being given, this was at a relatively late stage before trial which is scheduled for this month. I therefore consider that a 20 per cent discount is appropriate.
[14] This brings me to an end sentence of eight and a half months imprisonment. As a short sentence of imprisonment this entitles me to consider home detention as a sentencing option if appropriate.
[15] Your pre-sentence report is very positive. As I have noted, you obviously have strong community support and are highly motivated not to reoffend. Although the events that night were tragic, your role in them was limited. I bear in mind the requirements under s 8 of the Act to consider the gravity of the offending, the seriousness of the type of offence and consistency with appropriate sentencing levels in choosing an appropriate sentence. In the circumstances, I consider that a sentence of home detention will adequately reflect your culpability.
[16] I note the warning expressed by Gendall J in R v Boskell that the discretion to sentence a defendant to home detention is not to be exercised lightly because the
charge of being an accessory to murder is a serious one.2 In his words, your offending stems from the murder by your partner of a member of your community. It must be recognised that this was serious offending which had the potential to jeopardise the pursuit of justice for Mr Davis and his family.
[17] However, in this case I think that home detention is appropriate. As noted by the Court of Appeal, the sentence of home detention is a real alternative to imprisonment and carries with it significant levels of deterrence and denunciation. You have shown remorse, and a strong interest in engaging yourself in programmes to assist with preventing any future offending. This offending is evidently out of character for you, and I consider you will be adequately deterred from future offending by the prospect of home detention without needing to impose a sentence of imprisonment.
[18] Home detention will be a serious and isolating experience for you. This will be particularly so because I note that after some difficulties obtaining a suitable home detention address for you, one has been found in Northland. This also means that you will be separated from your immediate family in Auckland who are you evidently close to. I consider that this will be an added level of punishment.
[19] The pre-sentence report confirms that you have a suitable address, that the occupants have been assessed as suitable, and that those occupants consent to you serving your sentence there in accordance with the conditions I am about to impose and understand the implications.
Result
[20] I therefore impose on both charges a sentence of four and a half months home detention. The sentence start date will be deferred until the 11th of November 2015, in accordance with s 80W(1)(b) of the Sentencing Act. This will allow you time to
travel from Auckland to Whangarei.
2 R v Boskell [2015] NZHC 286.
[21] The conditions proposed by your parole officer will apply, both the ordinary conditions as well as the post-detention conditions which are recommended in the Community Corrections Report dated 5 November 2015.
[22] Stand down.
……………………………….
Woolford J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2014-092-014382 [2015] NZHC 2367
THE QUEEN
v
MARY TOGIAONO
Hearing: 29 September 2015
Appearances: N Walker for the Crown
D Wallwork for the Defendant
Date of Minute: 29 September 2015
SENTENCE INDICATION OF WOOLFORD J
Solicitors/Counsel:
Fletcher Kayes Walker, Auckland
D Wallwork, Manukau City
Introduction
[1] Ms Togiaono seeks a sentence indication. She faces two charges under the
Crimes Act 1961:
(a) one charge of accessory after the fact to murder;3 and
(b) one charge of accessory after the fact to cause grievous bodily harm.4
Facts
[2] At about 12:30 am on Sunday, 21 December 2014, Ms Togiaono and her partner Mr Rapana were at a 21st birthday party. The victims, Rio Davis and Chevy Davis were also at the address. Ms Togiaono and Rio and Chevy Davis are extended family and were consuming alcohol along with other family members.
[3] Problems arose when Ms Togiaono was by the stereo where most of the guests were congregating. She kept changing the music which caused annoyance to the other guests. Chevy Davis confronted Ms Togiaono about changing the music and a heated argument developed. Mr Rapana saw the confrontation and approached Chevy Davis, at which point Rio Davis grabbed Mr Rapana from behind and a struggle ensued.
[4] The altercation between Mr Rapana and Rio Davis escalated with other party goers becoming involved. The confrontation between Ms Togiaono and Chevy Davis also turned physical.
[5] During the altercation, Mr Rapana allegedly stabbed Rio and Chevy Davis several times with a knife. Immediately after the stabbing, Mr Rapana grabbed Ms Togiaono and they, along with an associate, left the party and drove off in his
vehicle.
3 Crimes Act, s 176; maximum penalty of seven years imprisonment.
4 Sections 188(1) and 312, maximum penalty of five years imprisonment.
[6] Mr Rapana stopped the vehicle at an unknown location and hid the knife in a secluded area. They then drove to Ms Togiaono’s sister’s house in Otara. There they both changed their clothing and placed what they had been wearing including their shoes in the washing machine. They drove to their home address where they were located by police.
[7] Chevy Davis sustained fatal injuries and died at the scene. Rio Davis was taken to hospital and received medical attention for puncture wounds to his upper body.
[8] Mr Rapana is awaiting trial for the murder of Chevy Davis and the wounding of Rio Davis.
Submissions
Crown submissions
[9] The Crown submits that the involvement of Ms Togiaono as an accessory after the fact is limited to her role in washing the clothes at her sister’s address. Although the level of assistance Ms Togiaono provided was comparatively limited and its duration short-lived, she nevertheless assisted with discarding potentially incriminating evidence. The Crown says that Ms Togiaono washed Mr Rapana’s clothes knowing the seriousness of the injuries inflicted by him on the deceased.
[10] The Crown submits that Ms Togiaono knew that the clothes would be of interest to the police as they might contain important forensic evidence. It submits that the act of washing Mr Rapana’s clothes and thereby destroying potentially incriminating evidence, involves a higher level of culpability than cases where the evidence was simply hidden. A starting point of 18-21 months imprisonment is
suggested, having regard to a number of authorities.5
5 R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010; R v Graham HC Christchurch
CRI-2004-009-2224, 14 September 2004; R v Ovalau HC Auckland CRI-2006-092-10484, 13
March 2007; R v Tavita HC Auckland CRI-2009-092-5263, 15 September 2009; R v Granich
[2013] NZHC 2657.
[11] The Crown accepts that Ms Togiaono will be entitled to a discount for previous good character, given that she has no previous criminal history. It submits that Ms Togiaono will be entitled to a discount of up to 20 per cent if pleas were entered following the sentence indication. It acknowledges that the Court will have jurisdiction to consider a sentence of home detention but submits that whether a sentence is appropriate will depend on the contents of a pre-sentence report.
Defence submissions
[12] With regard to the facts of the offending, Ms Wallwork submits that Ms Togiaono remembers Chevy Davis punching her in the face and that a number of people were on top of her after she fell to the ground.
[13] Ms Wallwork accepts that the act of washing clothes involves the destruction of evidence which may thwart a successful prosecution. However, she argues that in this case, the prosecution had other evidence to rely on, such as eye witnesses and Mr Rapana’s own statement that his actions were in defence of Ms Togiaono. She submits that aside from placing clothes in the machine, Ms Togiaono did not conceal the clothes. In fact, she submits this morning that according to DVD interviews of Mr Rapana, it was he who placed his own clothes in the washing machine. There was no prolonged assistance. The assistance was impulsive and made while in a panicked and intoxicated state.
[14] Ms Wallwork points out that Ms Togiaono is a first time offender, is remorseful and is willing to accept responsibility for her offending. She has been in a stable de facto relationship with Mr Rapana for 16 years and they have two children.
[15] Ms Wallwork submits that a starting point of 12 months imprisonment is appropriate,6 with a discount for previous good character and a 20 per cent guilty
plea discount. She submits that a sentence of home detention is a real alternative to
6 Citing R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; R v Boskell [2015] NZHC
286; R v Granich, above n 4; R v Afamasaga [2014] NZHC 2142; R v Duncan [2013] NZCA
354.
imprisonment and would take into consideration Ms Togiaono’s good character and
personal circumstances.
Sentencing approach
[16] There is a three-stage approach to sentencing. First, the appropriate starting point is set. Secondly, allowance is made for personal aggravating and mitigating factors; and finally there is a discount for a guilty plea.7
[17] In sentencing and in giving a sentence indication, the relevant purposes and principles of sentencing must be considered.8
[18] These include: the need to hold Ms Togiaono accountable for the harm done to the community by her offending; to promote in her a sense of responsibility for, and acknowledgement of, the harm of her offending and to denounce and deter her conduct.
[19] Regarding principles of sentencing under s 8 of the Sentencing Act, the Court must take into account the gravity of the offending, the seriousness of the type of the offence, consistency with appropriate sentencing levels and similar offenders who have committed similar offences, and the need to impose the least restrictive outcome appropriate in the circumstances.
Starting point
[20] There is no tariff decision for accessory after the fact to murder as the circumstances in which this type of offending occur vary widely. Therefore, the starting point is set by reference to similar cases, and in setting the starting point in this case, I have had reference to the cases cited by both the Crown and Defence.
[21] I agree with the Crown’s submission that Ms Togiaono knew that
Mr Rapana’s clothes would be of interest to the police as they might have contained
important forensic evidence. However, I also accept the submission that
7 See Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.
8 Sentencing Act 2002, ss 7 and 8.
Ms Togiaono acted impulsively. The assistance was not prolonged, nor was it premeditated. It most likely resulted in some loss of forensic evidence, but that did not prevent the police from promptly arresting Mr Rapana. There was ample evidence for the police to rely on. Ms Togiaono’s culpability is therefore comparatively low.
[22] In my view, the offending is less serious than cases cited by the Crown in which 18 months imprisonment was adopted. There was no police chase in this case, no concealment of the murder weapon and Ms Togiaono did not lie to the police and facilitate Mr Rapana’s escape. Her actions also did not result in Mr Rapana avoiding detection for a significant period of time.
[23] I therefore adopt a global starting point of 12 months imprisonment across the two charges.
Adjusting the starting point
[24] Mr Togiaono is a first time offender. I agree with the Crown that she will be entitled to a discount for previous good character. The Court of Appeal confirmed recently that lack of previous convictions is not the absence of an aggravating factor, but is a mitigating factor that is evidence of good character.9 However, in the absence of evidence to support a particularly positive contribution to society generally, only a modest reduction is warranted.10
[25] Ms Togiaono may be entitled to other discounts for personal mitigating factors. I am not prepared to indicate these discounts at this stage. It is important to receive the benefit of a pre-sentence report and any additional information before considering the extent to which any discount should be applied.
[26] Turning to the discount for a guilty plea, Ms Togiaono was arrested in December 2014 and faces trial commencing 23 November 2015. A plea entered pursuant to this sentence indication is late in the piece. I therefore propose awarding
a 20 per cent discount if guilty pleas are entered.
9 Rana v R [2014] NZCA 468 at [16]; see also R v Hockley [2009] NZCA 74 at [30].
10 Rana at [16]-[17] where 7.5 per cent discount was awarded for lack of previous convictions.
[27] The end sentence is a short term of imprisonment. Therefore, home detention is available as a sentencing option.11 The suitability or otherwise of home detention, taking into account the relevant purposes and principles of sentencing that are applicable to Ms Togaiono, cannot be assessed at this stage. Ms Wallwork advises me this morning that, at this stage, Ms Togiaono does not have a suitable address to put forward for the purposes of home detention, but if in fact a pre-sentence report is
favourable, then I would propose to offer Ms Togiaono the opportunity of serving a sentence of home detention rather than a sentence of imprisonment.
Conclusion
[28] I therefore indicate a starting point of 12 months imprisonment, with at least
20 per cent discount for guilty pleas if they eventuate. A sentence indication has effect until the close of the date specified by the court or if no date is specified, until the expiry of five working days after the date on which the indication was given.12
Ms Togiaono must plead guilty to these offences within this time period if the indication is to be binding.13
Ms Wallwork obtains instructions and Ms Togiaono pleads guilty to the two charges.
[29] Ms Togiaono, on the basis of your pleas, you are convicted and remanded for sentence at 9:00 am on Tuesday, 10 November 2015 in this Court before me. I order a pre-sentence report, together with appendices. The remand will be on bail on existing terms and conditions.
……………………………….
Woolford J
11 Under s 15A of the Sentencing Act, a court can impose home detention if the court would otherwise sentence the offender to a short-term sentence of imprisonment. The words “short- term sentence” is defined to include “a determinate sentence of 24 months or less” in s 4(1) of the Parole Act 2002.
12 Criminal Procedure Act, s 64.
13 Section 116.
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