R v Togiaono - [2015] NZHC 2783

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 Defendant

Sentence:

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…

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.

Continue reading R v Togiaono

Details

AGLC: R v Togiaono [2015] NZHC 2783
Case: [2015] NZHC 2783
Decision Date: 10 November 2015

CaseChat Overview and Summary

The defendant, Mary Togiaono, was charged with being an accessory after the fact to murder and causing grievous bodily harm. The defendant pleaded guilty to both charges. The Crown submitted that the defendant washed the clothes of her partner, who had committed the offences, knowing that they would be of interest to the police as they might contain forensic evidence. The defendant's counsel argued that the defendant acted impulsively, the assistance was not prolonged, and the act of washing the clothes did not prevent the police from promptly arresting the defendant's partner. The court set a starting point of 12 months imprisonment for the two charges, with a 20 per cent discount for the guilty plea if entered. The court considered home detention as a sentencing option and imposed a sentence of four and a half months home detention. The court noted that the defendant's role in the offending was limited and that she showed remorse. The sentence start date was deferred to allow the defendant to travel from Auckland to Whangarei.

The legal issues in this case were whether the defendant's actions constituted being an accessory after the fact to murder and causing grievous bodily harm, and if so, what the appropriate sentence would be. The court held that the defendant's actions did constitute being an accessory after the fact to the offences and set a starting point of 12 months imprisonment. The court also considered whether home detention was an appropriate sentence and held that it was, given the defendant's limited role in the offending, her remorse, and her willingness to engage in programmes to assist with preventing any future offending. The court imposed a sentence of four and a half months home detention.

Orders