R v Toru - [2018] NZHC 1598

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-043-1229

[2018] NZHC 1598

THE QUEEN

v

TEINA TORU

Hearing: 29 June 2018

Counsel:

J E Bourke for Crown

T T Bolstad for defendant

Sentence:

29 June 2018

SENTENCING NOTES OF DOBSON J

[1] Mr Toru, I now have to sentence you on all the charges on which I found you guilty following the trial in this Court and the one charge that you pleaded guilty to at the outset of the trial. I analysed the circumstances of the offending in the reasons for my verdicts, and you will have that. I am not going to repeat my findings in any detail now. I acknowledge that at the outset of the sentencing hearing you maintained your rejection of my verdicts and that is your prerogative.

[2] I have to sentence you on 15 convictions involving violent and sexual offending against your partner, and one conviction of attempting to pervert the course

R v TORU [2018] NZHC 1598 [29 June 2018]

of justice. All but the last of these offences were committed over a period of three days. They comprised two series of assaults on your partner, with a lapse of one day between them.

[3] For the first group of offences committed on 19 July 2017, I treat the two convictions for rape and three for sexual violation by unlawful sexual connection involving oral, digital and anal penetration as the most serious. Each of those convictions has a maximum penalty of 20 years’ imprisonment. The remaining convictions relating to 19 July 2017 are for assault with intent to injure laid as a representative charge, indecent assault and male assaults female.

[4] The offending on both 19 and 21 July 2017 involved a period of detention of your partner without her consent, and I found that the circumstances on each of those days made out the elements of the offence of kidnapping.

[5] In addition to the conviction for kidnapping on 21 July, I found you guilty of three assaults with intent to injure. One of those was laid as a representative charge in relation to slapping, and the second in relation to punching your partner. The third involved strangling, which is generally treated as a serious form of assault with intent to injure. I also found you guilty of threatening to kill. The last conviction in relation to 21 July was the assault with intent to injure charge to which you pleaded guilty.

[6]Now the maximum penalties for each of these offences are:

· kidnapping – 14 years’ imprisonment;

· indecent assault – seven years’ imprisonment;

· threatening to kill – seven years’ imprisonment

· assault with intent to injure – three years’ imprisonment; and

· male assaults female – two years’ imprisonment.

[7] The final conviction was for attempting…

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 Toru

Details

AGLC: R v Toru [2018] NZHC 1598
Case: [2018] NZHC 1598
Decision Date: 29 June 2018

CaseChat Overview and Summary

The defendant, Teina Toru, was convicted on 15 charges related to violent and sexual offences against his partner, as well as one charge of attempting to pervert the course of justice. The court had to decide the appropriate sentences for these offences, which were committed over a period of three days. The most serious offences were two counts of rape, three counts of sexual violation by unlawful sexual connection, and two counts of kidnapping. The court also had to consider the defendant's attempt to pervert the course of justice.

In determining the sentences, the court considered the seriousness of the offences, the culpability factors present, and the need to ensure that the total sentence was proportionate to the overall criminality. The court calculated concurrent sentences for the offences committed on 19 July 2017, and added an uplift for the offences committed on 21 July. The court also imposed a separate cumulative sentence for the charge of attempting to pervert the course of justice. The court took into account the complainant's wishes, but ultimately decided that the nature and extent of the offending warranted a prison sentence.

The court imposed a total sentence of 12 years and nine months' imprisonment, comprised of concurrent sentences for the offences committed on 19 and 21 July 2017 of 11 years and six months' imprisonment, and a separate cumulative sentence of 15 months' imprisonment on the charge of attempting to pervert the course of justice. The court also issued a first strike warning to the defendant.

The court did not impose a minimum period of imprisonment, as it was satisfied that the defendant would demonstrate a commitment to rehabilitation and participate in available courses in prison. The court allocated specific sentences to each of the convictions, ensuring that the overall length of the sentence was proportionate to the overall criminality.

Orders