Toa v Police

[2023] NZHC 403

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-144

[2023] NZHC 403

BETWEEN

BRENDON TOA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 March 2023
Appearances:	M S Jenkins on behalf of T Braithwaite for the Appellant T W Afoa for the Respondent
Judgment:	6 March 2023

ORAL JUDGMENT OF PALMER J

Solicitors

Braithwaite Law Ltd, Rotorua
Crown Solicitor, Gordon Pilditch Solicitors, Rotorua

TOA v NEW ZEALAND POLICE [2023] NZHC 403 [6 March 2023]

What happened?

[1]                  Mr Brendon Toa, now aged 42 and of Te Arawa descent, was charged with five charges of burglary and a charge of shoplifting. They each carry maximum penalties of 10 years’ imprisonment and three months’ imprisonment respectively. The offending involved:

(a)breaking into a residential property in Christchurch on 23 January 2022, stealing jewellery, cash and a laptop worth $9,500 altogether and a car which was written off;

(b)stealing $30 of makeup from The Warehouse in Christchurch on 24 January 2022;

(c)breaking into a residential property in Christchurch with two other people on 29 January 2022, stealing an extensive amount of jewellery, watches and high-end handbags, and the keys to a Porsche and two Mercedes;

(d)breaking into the Rotorua Sports Bar on 27 February 2022 and stealing

$8,000–$10,000 in cash;

(e)breaking into Central Auto Dismantlers in Rotorua on 1 March 2022 and stealing the till containing $200–$400; and

(f)breaking into T P Diesel in Rotorua on 25 April 2022 and stealing $400 in cash, multiple keys, and tools.

[2]                  On 29 June 2022, in the Rotorua District Court, Judge D J McDonald gave Mr Toa a sentencing indication. He set the starting point for the 23 January burglary at 18 months’ imprisonment, uplifted that for 12 months for the 29 January burglary and another 12 months for the three Rotorua burglaries. He adjusted that for totality with a reduction of six months, giving a total starting point of three years’ imprisonment. The Judge also gave a four-month uplift for Mr Toa’s previous offending, including six convictions for burglary. The latest of these convictions was on 23 October 2020

and Mr Toa received a sentence of home detention. The Judge indicated he would apply a 20 per cent discount for a guilty plea and stated that brought the overall sentencing indicated to two and a half years’ imprisonment.

[3]                  On 4 November 2022, Judge A J Snell sentenced Mr Toa.1 Prior to the hearing, he correctly noted that the maths in the sentencing indication was wrong and should have resulted in an end sentence of two years and 8.8 months’ imprisonment.2 The Judge accepted the reasoning and rationale in the indication but adjusted the incorrect calculation after telling counsel how he proposed to proceed. The Judge also gave  Mr Toa a 10 per cent discount for his personal background on the basis of a cultural report.3 He did not believe Mr Toa was remorseful and gave no discount for remorse or rehabilitation efforts.4 He sentenced Mr Toa to two years and five months’ imprisonment and recommended the Parole Board give serious consideration to residential drug and alcohol treatment and the complex matrix of difficulties identified in the cultural report.5

Submissions

[4]                  Mr Jenkins, appearing on behalf of Mr Braithwaite, for Mr Toa, submits that Mr Toa agreed to the sentence indication of two years and six months, should be entitled to rely upon that, and would not have accepted a sentence indication of two years and 8.8 months’ imprisonment. He submits the sentencing judge should have referred the file back to the judge who gave the sentencing indication or checked whether Mr Toa wanted to withdraw his acceptance of the indication. Mr Toa has indicated that he does not wish to withdraw his acceptance of the indication. Mr Jenkins submits it is not clear that the Judge intended the methodology rather than the end sentence which, by analogy, is the focus of the Court on appeal. He also submits the Judge should have applied a 15 to 20 per cent discount for the obvious link between Mr Toa’s deprivation, drug use, and offending. He submits the Judge should have applied a discount of five to 10 per cent for remorse and efforts at rehabilitation. Just

1      Police v Toa [2022] NZDC 21963.

2 At [2].

3 At [15].

4 At [11].

5 At [16].

because Mr Toa committed more offending does not mean he is not remorseful. He points to Mr Toa’s lengthy letter of remorse, courses he completed in custody, and willingness to participate in restorative justice.

[5]                  Ms Afoa, for the Police, agrees that Mr Toa should have been given the opportunity to withdraw his guilty plea because he expected it to be 2.8 months lower than it was. If he does not vacate his plea, as he has indicated he would not, Ms Afoa submits the sentence imposed was within the available range. The Police acknowledges the difficulties Mr Toa faced in growing up. But given his recidivism, the Police submits a 10 per cent discount was adequate to recognise Mr Toa’s background. She also submits the Judge was correct not to give a discount for remorse and rehabilitation.

Should the appeal be allowed?

[6]                  Under s 250 of the Criminal Procedure Act 2011 (the Act), the Court must allow the sentence appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.6 The Court will only intervene and substitute its own views if the sentence being appealed is “manifestly excessive”.7

[7]Section 115 of the Act provides, relevantly:

115     Plea of guilty may be withdrawn by leave of court

(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

(2)The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—

…

(b)the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.

6      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

[8]In Taylor v R, the Court of Appeal stated:8

… where there is a significant disparity between indication and final sentence, and where the plea has flowed from the indication, the accused person must be offered the opportunity to withdraw his or her plea. An expectation has been created and not met, and the accused should not be held to his or her plea.

[9]                  The sentencing judge applied the methodology of the sentencing indication correctly. And he indicated that Mr Toa’s counsel, Mr Braithwaite, had approved him adopting the reasoning and rationale of the indication. But Mr Toa had accepted, and expected, an appreciably lower indication. The effect of s 115 is that he must be able to reconsider whether he wishes to plead guilty on the basis of the accurate indication, quash the convictions, and take his chances at a trial and with another sentencing, or not. Mr Toa has indicated he does not wish to vacate his plea.

[10]              In terms of the other grounds of appeal, I do not consider they warrant any change in sentence:

(a)The sentencing judge corrected the arithmetical error correctly. He applied the reasoning and rationale of the sentencing indication, with which counsel agreed.9 There was no error in the reasoning and rationale and its outcome was within the range available to the Judge. The calculation of the result was in error. But Mr Toa does not wish to vacate his plea on the basis of the corrected indication. I do not consider the error in the calculation is a reason to change the sentence.

(b)The cultural report for Mr Toa makes for sad reading. Hanging out with his cousins and then the Mongrel Mob got him into drinking and drugs at a young age, though he never joined the gang. He has children. The recent death of Nanny Pa, who raised him, threw him back to a previous path of substance abuse and offending. Odyssey House has denied him admission due to a sexual assault conviction. But the sentencing judge took the cultural report into account. Given the discounts applied in

8      Taylor v R [2013] NZCA 55 at [18], citing R v Gemmell [2000] 1 NZLR 695 (CA).

9      Police v Toa, above n 1, at [3].

other cases such as Berkland v R,10 I do not consider the Judge erred in assessing the effect on culpability as justifying a discount of 10 per cent. That was within the range available.

(c)Neither do I consider the Judge erred in not providing a discount for remorse. Mr Toa certainly wrote a letter expressing his remorse and he completed courses in prison. But his remorse appears to be for himself, not his victims. There is not much that is tangible that he can point to on appeal. And it stands in contrast to the repetitive nature of his offending over some months which commenced soon after his post- release conditions ended for previous offending. Given the repetitive nature of his offending, his rehabilitative steps would need to have gone further to attract a discount on appeal.

[11]              Overall, the sentence imposed was within the range available to the Judge. It is not manifestly excessive. A different sentence should not be imposed.

Result

[12]I dismiss the appeal.

Palmer J

10     Berkland v R [2022] NZSC 143 at [138] and [140].