R v Tolefoa - [2012] NZHC 3059

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF POLICE OFFICER PROHIBITED BY S 140 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-011046 [2012] NZHC 3059

THE QUEEN

v

MURRAY TOLEAFOA

Hearing: 16 November 2012

Counsel: K Raftery for Crown
R Mansfield and H Stuart for Prisoner

Judgment: 16 November 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

Crown Solicitor, Auckland
R Mansfield, Auckland

R V TOLEAFOA HC AK CRI-2012-004-011046 [16 November 2012]

[1] Mr Toleafoa, you are for sentence today on a charge of discharging a firearm at a police officer to which you pleaded guilty on 10 October 2012. The maximum penalty for that offending is a sentence of imprisonment of 14 years.1

Facts

[2] On Friday 8 June 2012, you were the front seat passenger in a car being driven by your de facto partner. You were in the parked car when five uniformed members of the Auckland City District Police drove past you in a marked vehicle. I am going to refer to three of the officers in the car as Constables A, B and C.

[3] When the officers observed your vehicle, they followed you to an intersection and activated their lights and sirens. When the cars were stopped, officers including Constable A and Constable B approached your vehicle. Constable B spoke with your partner, while Constable C spoke with you through a small gap in the passenger window.

[4] You were agitated and began to fidget in your seat while talking to the officer. During the conversation, you became increasingly uncooperative and argumentative.

[5] Constable A returned to the Police vehicle to complete checks on you and your partner. After completing these checks, Constable A spoke to your partner, who had wound the driver’s window all the way down. She had her right hand on the ignition key in the ignition and her left hand on the handbrake. Constable A instructed her not to turn the engine on. She became nervous and whispered with you. When Constable A repeated his request, he heard you tell your partner to drive away. Your partner started the engine, and you continued to encourage her to drive
away.

1 Crimes Act 1961, s 198A.

[6] Constable A reached into the vehicle and attempted to remove the keys from the ignition. He was unable to turn the key off as there was an ignition lock system in place. He was standing with his head positioned low and immediately adjacent to the open driver’s window.

[7] You reached behind the front seats and retrieved a loaded semi-automatic pistol. This pistol is magazine-fed and chambered for a nine millimetre calibre bullet. With the pistol you kept a shoulder holster and a smell belt pouch that contained an additional magazine, which was loaded with 14 nine millimetre bullets.

[8] Your partner leaned forward in her seat. You brought the pistol across the top of her back and out of the driver’s window. Constable A saw the…

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 Tolefoa

Details

AGLC: R v Tolefoa [2012] NZHC 3059
Case: [2012] NZHC 3059
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The Queen v Murray Toleafoa was heard and decided on 16 November 2012. Murray Toleafoa pleaded guilty to the charge of discharging a firearm at a police officer, which carries a maximum penalty of 14 years imprisonment. The central issue before the court was to determine the appropriate sentence for this serious offence, considering the aggravating factors, the offender's criminal history, and the principles of sentencing under the Sentencing Act 2002.

The court found that the use of a firearm against a police officer, the psychological harm caused, and the offender's premeditation in keeping a loaded pistol within easy reach were key aggravating factors. The court also took into account the offender's extensive criminal history, which included previous convictions for offences involving firearms and violence. The offender's methamphetamine addiction and his failure to take advantage of previous opportunities for rehabilitation were considered in determining his culpability.

After considering the Crown's submissions for a starting point of 12 years imprisonment and the defence counsel's argument for an eight-year starting point, the court decided on a starting point of 10 years imprisonment. The court then adjusted the starting point by adding one year for the offender's history of violent offending, offending while on bail, and subject to a sentence of community work. The offender's early guilty plea entitled him to a 25% discount, reducing the sentence to eight years and three months imprisonment. The court also imposed a minimum period of imprisonment (MPI) of five years, slightly less than two-thirds of the full sentence, to reflect the gravity of the offence and the need to protect the community from the offender.

In conclusion, Murray Toleafoa was sentenced to a period of imprisonment of eight years and three months, with a minimum term of five years imprisonment. The court also imposed a first strike warning, reminding the offender of the severe consequences if he is subsequently convicted of another serious violent offence. The court ordered the permanent suppression of the name of Constable A, the victim of the offending.

Orders