R v Toki - [2007] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/06 [2007] NZCA 335

THE QUEEN

v

TAMALAGI RANGATURE MICHAEL TOKI

Hearing: 25 July 2007
Court: Chambers, Keane and MacKenzie JJ Counsel: M A Edgar for Appellant
K Raftery for the Crown

Judgment: 7 August 2007 at 4 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of five years’ imprisonment is quashed and a sentence of four years three months’ imprisonment is substituted.

REASONS OF THE COURT

(Given by MacKenzie J)

R V TOKI CA CA448/06 7 August 2007

[1] This is an appeal against a sentence of five years’ imprisonment on one count of aggravated robbery. The notice of appeal originally filed included an appeal against conviction, but that has been abandoned.

Facts

[2] The appellant was a security guard working for a security firm delivering cash to automated teller machines in south Auckland. The co-offender, Mr Olive, was a former employee of the same firm. On 3 August 2004, the appellant and the victim were working together in the south Auckland area delivering cash. At about
5.15 a.m., they arrived at the Mangere town centre, where they were to top up an ATM with $90,000. The victim entered the building and turned the lights on and the alarm off. He returned to the vehicle and collected two cash containers. The appellant also collected two cash canisters and followed the victim into the building, a few metres behind. As the victim was walking along the corridor of the premises, the door closed and the lights were extinguished. Both the appellant and the victim had their hands tied by the co-offender, and the victim was also blindfolded. The co- offender then took the cash and left the building. The appellant and the victim freed themselves and called police. The subsequent investigation revealed that the appellant’s explanations were inconsistent with the scene examination and statements made. Further investigations disclosed a series of text messages from the appellant to the co-offender on the morning of the robbery. The co-offender was interviewed, admitted his part in the robbery and implicated the appellant. Mr Olive admitted spending about a thousand dollars of the cash stolen, but about $87,000 was recovered as a result of information received from him. Mr Olive pleaded guilty to a charge of aggravated robbery, and was sentenced on 22 October 2004. The appellant pleaded not guilty. He was convicted following his trial in the Manukau District Court on 29 June 2006.

[3] Judge Wolff sentenced the appellant on 30 June 2006, the day after the trial. He did not obtain a pre-sentence report. He did have a number of references produced by the appellant’s then counsel. In his brief sentencing remarks, he noted that Mr Olive had been sentenced to three years’ imprisonment. He did not have the benefit of the Judge’s sentencing remarks, and expressed the view that allowing for credits for a guilty plea and for assistance to the police that must have reflected a starting…

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 Toki

Details

AGLC: R v Toki [2007] NZCA 335
Case: [2007] NZCA 335
Decision Date: 7 August 2007

CaseChat Overview and Summary

This case involves an appeal against a sentence of five years’ imprisonment for aggravated robbery imposed on Tamalagi Rangature Michael Toki. The appellant was a security guard who was involved in the planning and execution of a robbery with his co-offender, Mr. Olive. The Court of Appeal of New Zealand heard the appeal, and the judgment was delivered on 7 August 2007.

The primary legal issues that the Court had to decide were whether the sentence was manifestly excessive, if the lack of a pre-sentence report and sentencing notes for the co-offender constituted a procedural error, and if so, whether these errors warranted a reduction in the sentence. The Court also needed to determine an appropriate starting point for the sentence and decide if any personal mitigating factors should be taken into account.

The Court of Appeal found that the lack of a pre-sentence report and sentencing notes for the co-offender were procedural errors. The Court considered it regrettable that the sentencing Judge proceeded without a pre-sentence report, especially given the appellant's young age and lack of previous convictions. The Court also found it important for the sentencing Judge to have a clear understanding of the basis on which the co-offender was sentenced. Although the Court was uncertain about its power to order a pre-sentence report, it decided that the errors made by the sentencing Judge warranted a reduction in the sentence.

The Court of Appeal determined that the starting point for the sentence was appropriate, but a reduction was required to reflect the personal mitigating factors, most importantly the appellant's previous good record. The Court considered that an allowance of nine months from the starting point was appropriate to reflect those personal mitigating factors. Consequently, the sentence of five years’ imprisonment was manifestly excessive and had to be adjusted accordingly.

The Court of Appeal allowed the appeal against the sentence, quashed the sentence of five years’ imprisonment, and substituted a sentence of four years and three months.

Orders