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…

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 [2012] NZHC 2447
Case: [2012] NZHC 2447
Decision Date: 20 September 2012

CaseChat Overview and Summary

The High Court heard an appeal by Brendon Toa against his conviction and sentence for two counts of burglary. Toa was found guilty of burgling two properties on the same night and was sentenced to two years imprisonment. Toa appealed against both conviction and sentence, arguing there was insufficient evidence to prove beyond reasonable doubt that he accompanied Kohdyn Rapana during the burglaries and that the starting point for sentencing was too high. The court considered the evidence presented during the trial, including the testimonies of Kohdyn Rapana, Constable Allcutt, Constable White, and others. The court also considered text message evidence and the contents of Toa's cellphone. The judge had concluded that there was sufficient circumstantial evidence to prove Toa's involvement in the burglaries. However, on appeal, the High Court found that there was not enough evidence to be sure of Toa's direct involvement in the burglaries beyond reasonable doubt, and therefore allowed the appeal against conviction. The court found that Toa had confessed to receiving stolen property in his text messages, and thus convicted him on the alternative charge of receiving stolen property and sentenced him to time served. Toa was to be released accordingly.

Orders