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Toala v Police

Toala v Police

Case [2024] NZHC 1542 13 June 2024

Appeal

Breach of Protection Order

Sentencing

Domestic Violence

Aggravating Factors

Discretionary Sentencing

Criminal Law

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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…

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 Toala v Police

Details

AGLC: Toala v Police [2024] NZHC 1542
Case: [2024] NZHC 1542
Decision Date: 13 June 2024

CaseChat Overview and Summary

In this appeal against sentence, the appellant, Mr Toala, contests the sentence imposed by the District Court for multiple charges of domestic violence against his partner, including assault with intent to injure, assault on a person in a family relationship, and breaches of a protection order. The District Court Judge imposed a sentence of two years and two months’ imprisonment. The appeal focuses on whether the sentence was manifestly excessive, particularly challenging the starting point of two years’ imprisonment for the lead charge and the one-month uplift for remitting unpaid fines. The respondent, the New Zealand Police, argues that the sentence was not manifestly excessive and that the District Court Judge applied the relevant sentencing principles correctly.

The court examined two primary issues. First, whether the starting point for the lead charge of assault with intent to injure was appropriate, and second, whether the one-month uplift for remitting unpaid fines was justified. The court considered relevant case law, including comparisons with other cases involving domestic violence, to assess the starting point and the appropriate range for sentencing. The court also reviewed the discretion exercised by the District Court Judge in relation to the remission of fines and the subsequent uplift in the sentence. The court concluded that the starting point, while at the higher end, was within the available range given the aggravating features of the offending, such as the multiple assaults and the breach of a protection order. Regarding the uplift for remitting fines, the court found that the Judge’s discretion was exercised appropriately, considering all relevant circumstances, including the amount of the fines, the crimes for which they were imposed, and the likelihood of payment.

The appeal was dismissed, and the sentence imposed by the District Court was upheld. The court found that the end sentence of two years and two months’ imprisonment was not manifestly excessive and that the District Court Judge had applied the relevant sentencing principles correctly. The court did not find any material error in the District Court’s imposition of the sentence.

Orders