The Queen v Toailoa

[2008] NZCA 322

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/2008
[2008] NZCA 322

THE QUEEN

v

BERNARD TOAILOA

Hearing:21 August 2008

Court:Robertson, Randerson and Cooper JJ

Counsel:L Freyer for Appellant

M A Woolford for Crown

Judgment:26 August 2008  at 10 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        On 5 March 2008, the appellant was sentenced in the District Court to an effective term of seven years’ imprisonment with a minimum non-parole period of four years, having been found guilty by juries on two separate counts of aggravated robbery and one charge of aggravated injury. 

[2]        He appeals against sentence on the basis that it was manifestly excessive. The argument is developed on the basis of parity with sentences imposed in the High Court on James Junior Lawrie, his co-offender in the two aggravated robberies, but who was also sentenced on a substantial number of other offences including one count of murder.

[3]        Complaint was also made that undue weight was given to the criminal history of Mr Toailoa and an insufficient credit was allowed for the fact that his actions in the aggravated injury charge may well have avoided the killing of his victim.

Factual background

[4]        Judge Kiernan, who was both the trial and the sentencing Judge, described the circumstances of the offending as follows:

[5]       In relation to Misty Valley Wines, the real issue at the trial was your participation.  Whether you were jointly robbing the wine shop with Mr Lawrie, or whether you were in effect going along with what suddenly happened and that he was orchestrating.  Also in respect of the assault on Mr Dikanovic the issue really, for the jury, was whether in assaulting him which you did not deny, you had caused that grievous bodily harm with intent to facilitate the commission of the aggravated robbery.

[6]       Now the jury must have been satisfied beyond reasonable doubt of each of those offences, and the legal elements of them, to have found you guilty on both of those offences.  Essentially the facts were that on the evening of that day you and Mr Lawrie were in a car parked outside Misty Valley Wines.  It seems it was a quiet night in the shop, there were two staff working there and three girls who were customers in the shop at the time you and Mr Lawrie entered.

[7]       As they came up to the counter to pay for their purchases, Mr Lawrie removed a pistol, showed it to them and ordered them to get behind the counter and lie down.  You were further back down the floor area of the store.  Someone else came in to buy some alcohol.  He was told by you to get on the ground.

[8]       Then Mr Dikanovic, who was shortly to be attacked by you, came in, got his beer and approached the counter.  Mr Lawrie threatened Mr Dikanovic with the pistol.  Mr Dikanovic did not co-operate straight away, Mr Lawrie shot the pistol towards some shelving and some of the debris fell down on others.  There was then a conversation in Samoan which the jury did not hear, nor did any of the people in the store understand what was said.

[9]       What happened next was that you attacked Mr Dikanovic, essentially from the side.  You struck him in his face with sufficient force to fracture his jaw and knock him to the ground.  The evidence was that you then kicked him, whilst he was on the ground.  He was then pulled around to the other side of the counter where the others were. Mr Lawrie it seems also kicked him.

[10]     There were various items taken from all of the customers and the staff and also money taken from the till.  The evidence was that those items were handed to you over the counter.  There was other evidence about your actions inside the store and the attempts to lock the doors and prevent others from coming in.

[11]     You had the keys of a car belonging to one of the girls and you reversed that car outside.  Mr Lawrie left in that vehicle with you following in the car that the two of you had come in.  It seems that you only got a small amount of money for your part in that robbery and there are still items outstanding from the victims.

[12]     Mr Dikanovic’s injury as you know required hospital treatment and took some considerable time to heal.  He also had bruising to his body from kicking.

[13]     In respect of the VIP Massage Parlour, that was in fact the day before the 10 June at Misty Valley.  In the early hours of that morning, you and Mr Lawrie and another female offender entered that massage parlour.  Again it was Mr Lawrie who had the weapon and threatened the employees, who were forced to lie on the floor.  You and the other person bound their hands and taped their mouths.

[14]     Mr Lawrie attacked the manager, physically punching him and kicking him and various items were stolen.  In that robbery you did not take any active violent part, in that you did not attack anyone personally yourself, but you were clearly acting in concert with Mr Lawrie and the other person.

[5]        Later the Judge noted aggravating factors:

[39]     I take into account as aggravating features the extent of the damage and loss, to each of the victims of both of those sets of events and especially Mr Dikanovic.  Whatever your motive for the attack upon him, it had a very serious effect upon him as of course the robbery itself had on all of the people in the Misty Valley Wine store and the effect on the people in the VIP Massage Parlour I have also referred to.

[40]     Also aggravating Mr Toailoa, are your previous convictions and they do include convictions for both aggravated robbery and violence.  The conviction that I have referred to, for which I have the summary from 1990, does of course combine those two types of criminal offending in the same way as your convictions for these offences do.

[6]        She concluded:

[43]     . . .  If I looked at these offences individually, it appears to me that an appropriate sentence for the aggravated robbery at Misty Valley Wines, would be a term of six years imprisonment.  For the grievous bodily harm a term of four years and for the VIP robbery a term of five years.  Now if I were to impose those individually that would add up to fifteen years imprisonment.

[44]     Because I must look at matters in totality and taking them together, two of these offences were committed at the same time and one the day before, I have reached the view that an appropriate starting point for your sentence including the aggravating factors that I have mentioned would be a term of seven and a half years imprisonment.  Now from that starting point, I am going to give you a small allowance of six months for remorse despite your not guilty pleas.  I accept that you do now feel some remorse for the effects of your offending so the final term that I impose is a term of seven years imprisonment on each of those offences.

Appeal grounds

(a)      Parity

[7]        The relevant test was enunciated by this Court in R v Lawson [1982] 2 NZLR 219. Even putting to one side the fact that the sentences imposed on Junior Lawrie were concurrent with a life sentence with a minimum non-parole period of 16 years, a reasonably minded independent observer would not think anything had gone wrong.

[8]        In the case of Mr Lawrie, the starting point for the charges other than murder was ten years’ imprisonment.  Although in Mr Lawrie’s case there were six aggravated robberies, his sentence did not involve a charge of wounding with intent to cause grievous bodily harm.  This serious aggravating factor had to be reflected in the lead sentence imposed upon Mr Toailoa.   Further, Mr Lawrie had entered pleas of guilty which entitled him to a discount and led to the effective sentence of eight years’ imprisonment.

[9]        The comparison must be between ten years and seven and a half years, and that gives no cause for concern.

(b)Previous criminal history

[10]     This is another aspect of the parity argument because Mr Toailoa submits that Mr Lawrie had a worse list of previous offending than he did. 

[11]     This is a somewhat non-productive line of argument.  Both men had serious lists of previous convictions.  In the case of the present appellant, it included injuring with intent to cause grievous bodily harm and assault with intent to cause grievous bodily harm on a number of occasions, together with a previous offence of aggravated robbery.  A detailed comparison is inappropriate when each has a list of previous offences as serious as those of these two offenders.

[12]     In terms of R v Taueki [2005] 3 NZLR 372 (CA), this offender’s previous history was an aggravating feature personal to him, and should have been taken into account in adjusting the sentence after a proper starting point had been determined. No injustice accrued to Mr Toailoa on the basis of the Judge having included his previous convictions as a factor in determining the starting point and the comparison with Mr Lawrie is unhelpful.

(c)The avoidance of further harm

[13]     This is a speculative issue.  The contention that the victim was saved from more serious harm at the hands of Mr Lawrie by reason of the attack made upon him by Mr Toailoa does not stand scrutiny as a mitigating factor.  It assumes a motive for the offending, namely some sort of benevolence, which is not necessarily supported by the evidence.  The appellant was charged and convicted on a Crown case that Mr Toailoa wounded the victim with intent to facilitate the commission of the aggravated robbery.  In addition, the evidence clearly established that Mr Toailoa kicked the victim when he was already on the ground.  There was no basis for any discount for this.

Discussion

[14]     As was discussed with Mrs Freyer in the course of the hearing, we consider that the sentence imposed upon Mr Toailoa as merciful.

[15]     Mr Toailoa is aged 35 years.  He has been regularly offending for 20 years.  For not dissimilar offences, he was previously sentenced to a lengthy term of imprisonment which had not long expired when he involved himself in this seriously violent activity.

[16]     An effective sentence of eight or nine years for Mr Toailoa would probably have withstood challenge on appeal.

[17]     Of significance is both the inherent seriousness of the offences and the fact that they occurred on successive days.  One incident involved actual violence and physical injury to an innocent man.

[18]     This is a situation where general deterrence and denunciation must be given weight. 

[19]     Although we are far from satisfied that it is helpful to undertake a parity exercise with a man who has been sentenced to life imprisonment with a 16 year non-parole period, the comparative end sentences between these two men are explicable on the basis of the different factors applicable to each of them.  In no sense could it be considered that something has gone wrong in the administration of justice when Mr Toailoa’s effective sentence is compared with the concurrent sentence imposed on Mr Lawrie.

Result

[20]     The appeal has no merit and is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington