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…

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 Toa v Police

Details

AGLC: Toa v Police [2023] NZHC 403
Case: [2023] NZHC 403
Decision Date: 6 March 2023

CaseChat Overview and Summary

In Toa v Police, the High Court of New Zealand considered an appeal against the sentence imposed on Mr. Brendon Toa, who had been found guilty of multiple burglary and shoplifting charges. The Rotorua District Court sentenced Mr. Toa to two years and five months’ imprisonment, having previously provided a sentencing indication of two years and six months. Mr. Toa appealed on the basis that the sentencing judge should have allowed him to withdraw his guilty plea due to an arithmetical error in the original indication and should have applied a greater discount for his cultural background and for remorse and rehabilitation efforts. The Police conceded that Mr. Toa should have been given the opportunity to withdraw his plea, but argued that the sentence imposed was within the available range.

The court held that Mr. Toa was entitled to be offered the opportunity to withdraw his plea as there was a significant disparity between the sentencing indication and the final sentence, and the plea had flowed from the indication. However, as Mr. Toa had indicated he did not wish to vacate his plea, the court did not consider it necessary to change the sentence. Regarding the other grounds of appeal, the court found that the sentencing judge had correctly applied the methodology of the sentencing indication and that the discounts applied for cultural background and for remorse and rehabilitation efforts were within the range available. The sentence imposed was not manifestly excessive, and a different sentence should not be imposed.

The court dismissed the appeal, upholding the sentence of two years and five months’ imprisonment imposed on Mr. Toa.

Orders