R v Toia

Case [2007] NZCA 331 3 August 2007

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PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 310/06 [2007] NZCA 331

THE QUEEN

v

TE PAKI TOIA

Hearing: 17 April 2007
Court: Glazebrook, Randerson and Ronald Young JJ Counsel: Appellant in Person
J M Jelas for Crown

Judgment: 3 August 2007 at 4pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

R V TOIA CA CA 310/06 3 August 2007

[1] The appellant appeals against his conviction and sentence on sexual violation and related charges arising from a series of incidents on 1 January 2005 involving two complainants. The convictions followed a jury trial in the District Court before Judge Kiernan which ended on 16 December 2005. The appellant was sent to the High Court for sentence and, on 10 August 2006, Williams J sentenced him on the sexual violation charges to preventive detention with a seven year minimum period of imprisonment. By a minute of 6 September 2006, Williams J clarified the sentence under s 372 of the Crimes Act 1961, imposing finite terms of imprisonment on the related counts of kidnapping, threatening to kill and assault. Those charges and the sentences imposed on them are not at issue in this appeal.

[2] The grounds for the appeal against conviction as clarified during the hearing of the appeal are:

(a) The Courts did not have jurisdiction to try and sentence the appellant. (b) The trial was unfair leading to a miscarriage of justice because:
(i)The appellant was not given proper facilities to prepare for trial while in custody;

(ii) The depositions process was invalid or unfair;

(iii) The jury was improperly reduced to 11 members; and

(iv)The jury was given a list of the appellant’s previous convictions.

(c) The verdict was unreasonable or cannot be supported by the evidence.

[3] The appellant made no submissions either in writing or orally in support of the sentence appeal but we nevertheless deal with the sentence issue later in these reasons.

[4] We will refer to the two complainants as A and M. A was 16 years of age at the time. The appellant was convicted in respect of A on one count of sexual violation by unlawful sexual connection (digital penetration) and one count of sexual violation by rape. He was also convicted in her case on separate counts of male assaults female, threatening to kill and kidnapping. In respect of the complainant M, the appellant was convicted on one count of male assaults female.

[5] Complainant A and the appellant were known to each other. They met on New Year’s Day along with other friends including M. Alcohol was consumed. Over the ensuing period, the group went to various addresses. The evidence adduced for the Crown was that the appellant punched A on a number of occasions and also punched M. Later, the appellant drove A to his home. A…

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 Toia

Details

AGLC: R v Toia [2007] NZCA 331
Case: [2007] NZCA 331
Decision Date: 3 August 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Te Paki Toia against his conviction and sentence for charges including sexual violation, kidnapping, and assault, arising from incidents on 1 January 2005 involving two complainants. The appellant was convicted following a jury trial in the District Court and was sentenced by the High Court to preventive detention with a seven-year minimum imprisonment term for the sexual violation charges. The appeal against both conviction and sentence was dismissed by the Court.

The appellant's grounds for the appeal against conviction included arguments that the courts lacked jurisdiction, that the trial was unfair due to inadequate preparation facilities, an invalid depositions process, an improperly reduced jury, and the presentation of his previous convictions to the jury, and that the verdict was unreasonable. The Court dismissed each of these arguments. The Court held that New Zealand courts had jurisdiction over the appellant, as the charges were under the Crimes Act 1961, and the appellant was not entitled to be tried on a marae. The Court found that the appellant was not disadvantaged by the facilities provided for his preparation for trial, that the depositions process was valid, that the jury was properly reduced in number, and that the appellant's previous convictions were not presented to the jury until after the verdict. The Court also rejected the appellant's claim that the verdict was unreasonable, finding that there was ample evidence to support the jury's conclusion that the complainant did not consent to the sexual activity.

The appellant did not make any submissions in support of the appeal against sentence. The Court reviewed the sentencing remarks and the materials upon which the sentencing Judge relied in imposing the sentence of preventive detention, and concluded that the sentence was justified. The appellant's extensive history of serious and violent offending, the seriousness of the harm to the community, the impact on the victim, and the appellant's lack of insight and unwillingness to address the causes of his offending supported the imposition of a sentence of preventive detention.

The appeal against both conviction and sentence was dismissed by the Court.

Orders