Toala v Police

[2024] NZHC 1542

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000174

[2024] NZHC 1542

BETWEEN

TALAVETA TOALA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 June 2024

Appearances:

N N Mani for Appellant

J L Gibson for Respondent

Judgment:

13 June 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 13 June 2024 at 10.00 am

pursuant to r 11.5 of the High Court Rules 2016.

Registrar / Deputy Registrar Date …………………………

TOALA v NZ POLICE [2024] NZHC 1542 [13 June 2024]

Introduction

[1]This is an appeal against sentence for domestic violence offending.

[2]        In the District Court, the appellant, Mr Toala, pleaded guilty to five charges; the lead charge of assault with intent to injure,1 one of assault on a person in a family relationship,2 and three of breaching a protection order.3 This offending was against his partner, someone he has previously assaulted, and for whose benefit the extant protection order was made. He was sentenced to two years and two months’ imprisonment.

[3]        Mr Toala contends that the sentence was manifestly excessive. In particular, he submits that the starting point adopted for the lead charge of assault with intent to injure, namely two years’ imprisonment, was excessive. He also challenges the District Court Judge’s decision to uplift the sentence by a further one month of imprisonment for remitting fines of approximately $5,000. He says that an appropriate end sentence would be 24 months’ imprisonment and home detention should thus be considered.

[4]        The Police oppose the appeal. They accept that the starting point of two years’ imprisonment was at the higher end but say that the end sentence was not manifestly excessive.

Background facts

[5]        Mr Toala and the victim have been in a domestic relationship since about mid- 2015. At the time of the offending, they were living together at the same address. They have three children together. Shortly after they got together the victim obtained a temporary protection order issued by the Manukau Family Court. That order became final in June 2016.

1      Crimes Act 1961, s 193: maximum penalty of three years’ imprisonment.

2      Crimes Act 1961, s 194A: maximum penalty of two years’ imprisonment.

3      Family Violence Act 2018, ss 90(b) and 112(1)(a): maximum penalty of three years’ imprisonment.

[6]        In the early hours of Saturday, 18 March 2023, the appellant and the victim were at their home address. They had a fight. The appellant punched the victim numerous times with his closed fist, striking her head and body while she was asking him to stop. The continuous blows to her head caused a small cut which caused a flow of blood (i.e. the assault with intent to injure).

[7]        The appellant noticed that the victim was bleeding. He forced her to take a shower even though she did not want to. They then had another disagreement about the cat. The appellant locked the victim outside while it was raining, and she had to wait there for about 30 minutes before she could pacify the appellant and he let her back in (contravening protection order).

[8]        At about 11.30 pm on the same day, the appellant and the victim were again at their home address. There was a further disagreement between them. A friend stood between the couple trying to protect the victim. However, the appellant lost his temper and punched the victim in the head with such force that it caused the same wound to bleed once again. The friend kept intervening and stopped the appellant from assaulting the victim further (assault on a person in a family relationship).

[9]        The victim received a cut to the top of her scalp and a bruise on her left hip causing discomfort.

[10]      As the District Court Judge noted, the appellant has numerous charges of family violence offending against the same victim, his partner. In June 2021, he was sentenced to home detention for contravening the protection order. He had previously received sentences of intensive supervision for contravening a protection order and assault on a person in a family relationship (December 2020).

District Court judgment

[11]The District Court Judge:4

4      Police v Toala [2024] NZDC 5580 (decision under appeal).

(a)Imposed a starting point for the lead charge of assault with intent to injure, of two years’ imprisonment;

(b)Added six months’ imprisonment for the breaches of the protection order, and five months’ imprisonment for assault on a person in a family relationship;

(c)Allowed a discount of 20 per cent for Mr Toala’s guilty plea and 15 per cent for information in the s 27 report (that incorporated some mitigation for remorse);

(d)Added two months’ imprisonment for Mr Toala’s previous family violence history;

(e)Added one month imprisonment after remitting $4,934 worth of fines; and

(f)Noted the appropriate purposes of sentencing for Mr Toala were accountability, responsibility for the interests of the victim, and the gravity of the offending. Her Honour noted that it was an aggravating feature that he had committed family violence whilst a protection order was in place.

[12]This resulted in an end sentence of two years and two months’ imprisonment.

Relevant legal principles

[13]      Section 250 of the Criminal Procedure Act 2011 sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.

[14]      The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:5

[17] … the standard of appellate review in sentence appeals ... requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.

[15]      In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.6 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.7 A Judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.8

Analysis and decision

Issue (a) – Starting point

[16]      The appellant contends, having regard to comparable cases such as Tamihana v R,9 Tairi v Police10 and Samuel v R11 that the adjusted starting point at step 1 of the Moses methodology12 was too high. He notes that one of the decisions relied upon by the Crown, namely Nelson-Wright v Police,13 where there were similar aggravating features of domestic violence, a prolonged attack and attacks to the head, the starting point was 18 months’ imprisonment.

5      Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

7      Tutakangahau v R, above n 6, at [36].

8      Tutakangahau v R, above n 6, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

9      Tamihana v R [2015] NZCA 169; 12 months’ imprisonment starting point for a kick to the head area.

10     Tairi v Police [2015] NZHC 187; starting point of 14 months’ imprisonment for two charges of assault with intent to injure.

11     Samuel v R [2012] NZCA 376; starting point of 20 months’ imprisonment for assault to the head and offending in the victim’s home.

12     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. At the first step, the court calculates the adjusted starting point, incorporating aggravating and mitigation features of the offence.

13     Nelson-Wright v Police [2015] NZHC 2302.

[17]      The appellant contends that an appropriate starting point would be between 12 and 15 months’ imprisonment.

[18]      I accept that the starting point imposed here, namely two years’ imprisonment, was at the higher end. However, I find, given the aggravating features of the offending, that it was within the available range. In any event, the critical issue is whether the end sentence itself was manifestly excessive.14

[19]      Here, the aggravating factors of the offending, correctly identified by the District Court Judge, were: multiple punches to the head, domestic violence within the family home (where the young children lived), and the appellant locked the victim outside in the rain after the assault – a degrading and cruel act. Mr Toala also committed the assault while there was a protection order in place.

[20]      I accept that care must be taken in not double counting in circumstances such as this (i.e. assault while protection order in place) where the appellant also faced charges for breach of protection order and a specific uplift of six months’ imprisonment was made for breaches of the protection order charges (x 3). However, there was no error by the Judge in this case. As the summary of facts makes clear, the acts of breach of the protection order were distinct acts of criminal offending separate to the assault.

[21]      As the Court of Appeal held in Goodman v R, generally sentences of between two – three years’ imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.15 In that case the Court of Appeal upheld a sentence of two years and four months’ imprisonment on a charge of assault with intent to injure and male assaults female.

[22]I conclude that the starting point was within the available range.

14     Tutakangahau v R, above n 6, at [36].

15     Goodman v R [2016] NZCA 64 at [12].

Issue (b) – Uplift for unpaid fines

[23]      The Judge remitted Mr Toala’s fines of $4,934 and uplifted the end sentence by a further one month.

[24]      Mr Toala contends that he was denied the opportunity to advance submissions on the issue of remittance and its consequences, and that having regard to the totality of the overall offending, an uplift of one month’s imprisonment was excessive.

[25]      In Davis v Registrar of the Collections Unit at Dunedin, Randerson J observed:16

No guidance is given in the legislation as to the relationship between the amount of the fines remitted and the number of hours of community work imposed. Plainly, the discretion to be exercised under s 88 [Summary Proceedings Act 1957]17 is intended to be broad, taking into account all relevant circumstances. Relevant considerations would include the amount of the fines, the crimes for which they were imposed, the length of time over which they were accumulated, the reasons for non-payment, the extent to which the offender has paid or has attempted to pay, the financial and other circumstances of the offender and the likelihood or otherwise of the balance of fines being paid (where remission of part of the fines is to be considered).

[26]      In Rare v Police,18 Mr Rare had fines totalling $16,867.77 and $918.00 of enforcement fees. Thomas J noted:

If a community work sentence were substituted in lieu, a sentence in the region of 180 to 200 hours would be appropriate. Converting that to a sentence of imprisonment results in two months’ imprisonment.

[27]      In Brand v Registrar of Collections at New Plymouth,19 $13,824 of fines were remitted to a sentence of three months’ imprisonment. On appeal, that was replaced with a sentence of two months’ imprisonment. Andrews J referred to s 90 of the Summary Proceedings Act 1957, which reads:

16 Davis v Registrar of the Collections Unit at Dunedin HC Christchurch CRI-2005-412-13, 3 May 2005 at [9]; followed in La Rue v Ministry of Justice Collections Unit [2016] NZHC 666 at [9].

17 Under s 383 of the Criminal Procedure Act 2011, Part 3 of the Summary Proceedings Act 1957 (which includes s 88) applies to enforcement of fines. Section 88 confers the power to remit fines and impose a variety of sentences in lieu of fines.

18 Rare v Police [2017] NZHC 524 at [24].

19 Brand v Registrar of Collections HC New Plymouth CRI-2008-443-25, 10 November 2008.

Scale of imprisonment for non-payment of fine

The period of imprisonment imposed under this Act in respect of the non- payment of 1 or more fines or where the sale of any property under any process does not produce sufficient proceeds to pay the fine, shall be such period as in the opinion of the court or District Court Judge fixing the period will satisfy the justice of the case, not exceeding, for each fine, –

(a)in the case of an offence that was punishable by a period of imprisonment of more than 3 months, the maximum term of imprisonment to which the defendant was liable on the conviction, or a period of 1 year, whichever is the lesser:

(b)in any other case, a period of 3 months.

[28]      In Brand, Andrews J held that the discretion to impose imprisonment and the discretion as to what length of sentence to impose are not matters for the application of a mathematical formula.20 The Judge’s discretion must be exercised by deciding what satisfies the justice of the case, after taking the relevant considerations into account.21

[29]      I find that there was no error by the Judge to remit fines ($4,934) and add one months’ imprisonment to the starting point. The approach was within the available range.

Conclusion

[30]      The end sentence was not manifestly excessive. There was no error by the District Court Judge.

[31]The appeal is accordingly dismissed.

Andrew J

20  Brand, above n 19, at [16].

21  Brand, above n 19, at [16].