Toa v Police - [2013] NZHC 2683

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-63

CRI-2013-463-64 [2013] NZHC 2683

BETWEEN BRENDON TROY TOA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 October 2013

Counsel:

D Hall for Appellant
N Tahana for Respondent

Judgment:

15 October 2013

JUDGMENT OF BREWER J

Solicitors: Davys Burton (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent

TOA v POLICE [2013] NZHC 2683 [15 October 2013]

[1] Mr Toa appeals against a sentence of effectively 11 months’ imprisonment

handed down by Judge IB Thomas in the District Court at Rotorua on 21 August

2013.

[2] The background is a little complicated and I will set it out at this point so as to give context to the discussion following.

[3] The appellant is 32 years old. He has a lengthy criminal history. That history shows an almost total disregard for orders of the Court. On this occasion, he was in trouble for repeatedly driving while he was disqualified. His record in that respect is as follows:

13 April 2011 – driving while suspended

13 March 2013 – driving while disqualified 10 April 2013 – driving while disqualified 25 July 2013 – driving while disqualified
25 July 2013 – driving while disqualified (x3)

[4] The sentence handed down on 25 July 2013 was for offending in the period

6 April 2013 to 20 April 2013.

[5] The appellant came before the Court on 25 July 2013 for sentencing on these four most recent charges of driving while disqualified. The Judge, very mercifully, sentenced him to two months’ home detention. This is where his troubles really began.

[6] The period of home detention commenced on 26 July 2013. Subsequently he pleaded guilty to a charge of breaching home detention by absenting himself from the detention address between 27 July 2013 and 29 July 2013. He pleaded guilty to a further charge of breaching home detention by absenting himself from the detention address on 5 August 2013. Finally, on 13 August 2013 he was found in breach of his home detention condition by being away from the home address. He was also driving a motor vehicle. He was charged again with driving while disqualified but

was not charged with a third breach of home detention. In the car was a meth pipe which the appellant pleaded guilty to possessing.

[7] The above was the situation which the District Court Judge had to contend with on 21 August 2013. There was, of course, an application for review of the sentence of home detention.

[8] The District Court Judge had regard to the appellant’s criminal record. I expect that his Honour would have paid particular regard to previous instances of disregard for Court orders. Some I have picked up from the criminal record are:

24 August 1998 – failing to answer bail (x2) 26 October 1999 – failing to answer bail
10 November 1999 – an example of failing to report

18 August 2000 – failing to answer bail

19 July 2001 – failing to answer…

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 [2013] NZHC 2683
Case: [2013] NZHC 2683
Decision Date: 15 October 2013

CaseChat Overview and Summary

In the case of Toa v Police, the appellant, Brendon Troy Toa, appealed against a sentence of effectively 11 months' imprisonment imposed by Judge IB Thomas in the District Court at Rotorua on 21 August 2013. Toa had a significant criminal history marked by repeated instances of driving while disqualified and a general disregard for court orders. His most recent offenses involved driving while disqualified on four occasions between April and July 2013. Initially sentenced to two months' home detention for these offenses, Toa subsequently breached the conditions of his home detention on multiple occasions, culminating in another charge of driving while disqualified and possession of a methamphetamine pipe.

The legal issues before the court were whether the District Court Judge erred in adopting a starting point of 12 months' imprisonment for the driving while disqualified charge, and if the sentence was manifestly excessive or otherwise inappropriate. Counsel for the appellant argued that the jump from a two-month home detention sentence to a 12-month imprisonment sentence was too severe and did not align with the principle of consistent sentencing. The respondent, however, highlighted the appellant's history of disregarding court orders and the specific aggravating factors of the offenses, including the appellant's actions while serving home detention and his attempts to conceal his activities.

The court found that the appellant's history of disregarding court orders justified a deterrent sentence. The initial two-month home detention was deemed lenient given the nature of the offenses. The breaches of home detention and the further offense of driving while disqualified, combined with the possession of a methamphetamine pipe, warranted a stern response. The District Court Judge's decision to substitute imprisonment for home detention and the specific sentence for the driving while disqualified charge were within the acceptable range, considering the appellant's persistent disregard for court orders. The appeal was dismissed, affirming the District Court's sentence.

Orders