Toa v Police

[2012] NZHC 2447

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-049 [2012] NZHC 2447

BRENDON TOA

Appellant

v

THE NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2012

Counsel:         R Vigor-Brown for Appellant

S Simmers for Crown

Judgment:      20 September 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:30pm on the 20th September 2012.

JUDGMENT OF WILLIAMS J

Solicitors:

R Vigor-Brown, Barristers & Solicitors, Rotorua

Gordon Pilditch, Crown Solicitors, Rotorua

BRENDON TOA V THE NEW ZEALAND POLICE HC ROT CRI-2012-463-049 [20 September 2012]

[1]      This is an appeal against conviction and sentence.   Since, as I indicated to counsel, I propose to allow the appeal against conviction, it is unnecessary for me to address the sentence appeal further. The appellant is Brendon Toa.

[2]      On 14 May 2012, after a defended hearing, he was convicted by Judge Weir of two counts of burglary:

Offence  Offence date             Section  Max Penalty

1.     Burglary (McKee Avenue)    28 December 2011     Crimes Act 1961, s 231(1)(a)      10 years

2.     Burglary (Petrie Street)         28 December 2011     Crimes Act 1961, s 231(1)(a)      10 years

[3]      The charges  related  to  the burglary of two  premises  on  the same night: McKee Avenue and  Petrie Street,  Rotorua.   There was  no  dispute that  another, Kohdyn Rapana, had burgled both premises.   The issue was whether Mr Toa had accompanied him.   When the Police apprehended Mr Rapana near Sala Street, Rotorua, Mr Toa was in his car with him.

[4]      As mentioned, Judge Weir found the evidence established Mr Toa had been present at the burglaries.   He convicted him, and sentenced him to two years imprisonment.

[5]      Mr Toa now appeals against both conviction and sentence, arguing against conviction, that there was insufficient evidence to prove beyond reasonable doubt he had tagged along with Mr Rapana, and on sentence, that the starting point was too high.

The offender

[6]      Mr Toa has many previous convictions (roughly 40).  These include 23 for dishonesty, and some for burglary.  He has received 17 sentences of imprisonment before.

[7]      At the defended hearing, the prosecution called the following evidence:

(a)       Evidence of Kohdyn Rapana:  Mr Rapana said that, on 28 December

2011, he committed both burglaries alone.  He said he burgled McKee Avenue  first,  then  went  to  21  Petrie  Street,  then  went  back  past McKee Avenue, onto Fenton Street and picked up Mr Toa.  He said he picked up Mr Toa about five minutes before they were apprehended by the Police (so about 10:45pm).

(b)      Evidence of Constable Allcutt:  Constable Allcutt said at that, at about

10:50pm, he was on his way to the MacIntyre Avenue area when he overheard a radio call from Constable White that he had stopped a vehicle (Mr Rapana’s) and needed assistance.  He went to the scene. He read Mr Toa his rights, then took him back to the Rotorua Police Station and put him in an interview room.   He gave him a cursory search.  By this time it was about 11:20pm.  He asked Mr Toa a series of questions.  Mr Toa gave a statement explaining that:

(i)       he had only got to Rotorua at about 9:15pm that evening; (ii)  he went straight to his cousin, Bronwyn Hunter’s address;

(iii)     he  texted  another,  Desmond  Theodore,  to  pick  him  up.

Mr Theodore responded that Mr Rapana would do so; (iv)     he went to get picked up by Mr Rapana;

(v)      they were stopped by police.

Mr Toa told Constable Allcutt that he hardly knew Mr Rapana – that he had only met him about three weeks earlier – and that he did not even know the stolen property was in the car until the pair were

stopped by police.   He wrote “that’s the truth” under the interview notes and signed his name.  Constable Allcutt then took Mr Toa to the custody centre for processing.  At this time, Mr Toa told him he did not touch any of the stolen goods in Mr Rapana’s vehicle.   When asked  to  remove  personal  property  from  his  possession,  Mr Toa removed a cellphone.   Constable Allcutt confiscated it, noted it contained no SIM card, noted the IMEI number and obtained a search warrant for the txt data.

(c)      Evidence of Constable White:  Constable White said that, at 10:50pm on 28 December 2011, he was at BP Geyser, Rotorua.  A burglary job for McKee Avenue came over his radio.   McKee Avenue was about

200 metres away.  He went down Fenton Street, into Sala Avenue.  He saw a car turning out of McKee Avenue.  He stopped it, approached the driver and (at 10:54pm) noted his details in his notebook.  He saw the passenger was Mr Toa, and noticed a large 42” television (among other things) in the back.

A few days later, he received the text data from the cellphone.  An abridged transcript was admitted pursuant to s 9 Evidence Act 2006.

The texts included:

(At 8:16pm) a call to him asking “where you at?”.  He replied he was at Lana’s, and later asked for someone to pick him at about

9.05pm.

(At 9:04pm) Mr Toa received a txt saying someone was coming to

pick him up;  he replied “k”.

(At 10:48pm)  Mr Toa sent a txt asking “anyone after a 42 inch?”.

Constable  White  also  gave  evidence  that  the  television  was  very heavy and he would not have been able to put it into the car  by himself without damaging it.

(d)      The evidence of Renee Fels, Angela Cooper, Alana Whiteman and

Bernard O’Neill was admitted by consent.

[8]      The Judge’s reasons were stated shortly.  He summarised the evidence above, before stating he disagreed with Mr Rapana’s assertion that he burgled the McKee Avenue property first.   He pointed to the fact that much more property was taken from the Petrie Street address (a majority of items including the 42” television) and observed:[1]

The correct version of events had to have been that Petrie was the first sight of the burglary and McKee was the second, exactly in line with what Police Constable White acted on and perceived when he pulled over the motor vehicle.

[1] Police v Toa DC Rotorua CRI-2011-063-005862, 14 May 2012 Notes of Evidence, ruling of

Judge Weir at 15, lines 21-25.

[9]      The Judge then concluded:[2]

In my view, there is sufficient circumstantial evidence in this case to confirm that all material points in time is outlined by the text messages and the proximity    in    time    between    the    defendant’s    text    messages    and Constable White’s actions to confirm that he was indeed, a participant in the burglary, and he is accordingly convicted on both counts.

[2] At 15, lines 32-33 – 16 lines 1-3.

[10]     On 12 July 2012, Judge Weir sentenced Mr Toa.  He identified the relevant aggravating factors as:

(a)       Mr Toa burgled domestic premises; (b) he offended while on parole, and

(c)      the offending was premeditated.

[11]     He also referred to the value of items taken ($6,500) and Mr Toa’s previous convictions.  He referred to the decisions in Mita v R[3] and Wirepa v Police,[4] in which starting  points  of  18  months  were  adopted  for  similar  burglaries.    The  Judge

[3] Mita v R [2012] NZCA 137.

[4] Wirepa v Police [2012] NZHC 512.

concluded that, whether a start point of one year (as contended by Mr Toa’s counsel)

or 18 months were adopted, the correct end point (after taking into account previous convictions) would be two years’ imprisonment.

Submissions

Appellant

[12]     On the appeal against conviction, the appellant submits:

(a)      a brief of witness Bernard O’Neill was before the court.[5]   Mr O’Neill lives in McKee Avenue, next door to the property that was burgled (owned by Ms Angela Cooper).  Mr O’Neill’s brief said that, at about

[5] It is in fact unclear whether this evidence had been put before the Judge, but if it had not, it should have been. There was an agreement under s 9(2) for its admission signed by the police prosecutor and defence counsel.

10.20pm on the night in question, he looked over at Ms Cooper’s address and saw the bathroom window was wide open.  He knew she was not home.  He went over and checked the address, and saw it had been burgled.   He immediately called the Police.   He did not see anyone at the scene;

(b)this evidence, counsel submits, tends to prove the McKee Avenue burglary happened first.    This supports Mr Rapana’s account (disbelieved by Judge Weir).   It reveals the Judge had been unintentionally misled on a key fact (the timing of the McKee Avenue burglary);

(c)       this means the convictions are unsafe and should be quashed.

Crown

[13]     The Crown submits there was evidence before the court that entitled it to conclude Mr Toa was present, beyond reasonable doubt. This included:

(a)      Mr Toa was stopped in Mr Rapana’s vehicle, near McKee Avenue, four  minutes  after  Constable White  received  a  call  advising  of  a burglary there.   The call was presumably as a result of Mr O’Neill contacting the police;

(b)      Constable White’s evidence that the 42” television was very heavy

and would have required two people to move;

(c)      Mr Toa’s text message at 10:48pm:  “anyone after a 42?”.  This was contrary to his written statement taken by Constable Allcutt that he didn’t know the stolen goods were even in the vehicle until it was stopped.

Analysis

[14]     The appellant argues Mr O’Neill’s evidence creates a reasonable doubt about

Mr Toa’s involvement in the robberies in that:

(a)       his  evidence  shows  the  McKee  Avenue  robbery  occurred  before

10:20pm.

(b)Judge  Weir,  by  contrast,  found  that  this  robbery  occurred  shortly before 10:50pm, based on the evidence that Constable White received a call about the burglary around that time;

(c)      this factual finding made a significant difference.  If it is accepted the McKee Avenue robbery occurred at around 10:50pm, this would make it much more likely that Mr Toa was involved.  That is because the time between the burglary and Mr Rapana and Mr Toa being stopped by the police together is significantly reduced making the window of opportunity in which Mr Rapana could have innocently picked up Mr Toa too narrow.

(d)if it is accepted the McKee Avenue robbery occurred earlier, some time before 10.20pm, however, Mr Toa and Mr Rapana’s account (that the latter innocently picked up the former at about 10:45pm) is reasonably possible.

[15]     The  only  evidence  that  supports  the  later  timing  of  the  McKee Avenue burglary is the radio call taken by Constable White at about 10:50pm.  But that is not strongly probative of the time the robbery itself occurred – only the time it was notified to Constable White.    Constable White seemed to be under the misapprehension that the burglary was in progress at that point but there is no evidence that this was in fact the case.  Mr O’Neill had raised the alarm and his brief of evidence said that the burglar(s) had left by the time he discovered the house had been burgled.  Mr O’Neill’s evidence is more probative than Constable White’s on the issue of when the McKee Avenue burglary happened.

[16]     The real question is whether, accepting the McKee Avenue robbery occurred some  time  before  10:20pm  as  provided  in  Mr  O’Neill’s  evidence,  Mr Toa’s involvement in both robberies is still proven beyond reasonable doubt.

[17]     The evidence in support is set out at para [13] above.  To that, I would add the text messages that suggest Mr Toa was being picked up at about 9:05pm.  Given this evidence, it is certainly possible for him to have tagged along with Mr Rapana and committed both robberies, whatever the order in which they were committed. But that depends on the pick up being by Rapana himself.  The evidence does not go that far.

[18]     Two further things count against Mr Toa.  First, he lied about not knowing of the stolen items in the back of the car.  He clearly did know about the television.  He sent a text message about it.  Second, there was a lot of stolen material in the car.  It could well have taken two people to do this burglary.

[19]     In the end however, in my view there is just not enough to be sure about Mr Toa’s direct involvement once the correct timing for the McKee Avenue burglary is taken into account.  Mr Rapana says he did this alone.  This is not dislodged in

cross-examination.  Mr Rapana and Mr Toa are not caught red handed following the McKee Avenue burglary.  All the prosecution can be sure of is that Mr Toa is in the car with a confessed burglar some time after the burglary is completed, that he (Mr Toa) knows about the stolen items and that he lied to police about his alibi.  The evidence suggests he was probably involved, but it does not meet the higher criminal standard.

[20]     The appeal will be allowed accordingly.

[21]     There is an available alternative charge of receiving to which, in his text messages, Mr Toa has clearly confessed.  I have the power under s 121(2)(c) of the Summary Proceedings Act to amend the conviction and impose an alternative sentence.  I indicated to counsel that it may be appropriate for me to remit this matter to the District Court for consideration of the same, but having now looked at this provision, it is clear that there is no power to remit in this context.   I therefore convict  the appellant  on  the alternative charge  of receiving stolen  property and sentence him to time served.

[22]     The appellant is to be released accordingly.

Williams J