Toala v Police

[2013] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-304 [2013] NZHC 3270

BETWEEN  LANCY TOALA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   9 December 2013

Appearances:           H Kim for Appellant

L Mills for Respondent

Judgment:                9 December 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TOALA v NEW ZEALAND POLICE [2013] NZHC 3270 [9 December 2013]

[1]      Mr Toala pleaded guilty in the District Court to one charge of burglary, one charge of assaulting a female and one charge of breaching his prison release conditions.   On 10 October 2013, Judge Lovell-Smith sentenced Mr Toala to an effective term of two years four months imprisonment.1     He now appeals to this Court against sentence on the basis that it is manifestly excessive.

The facts

[2]      The facts in relation to all three charges were taken from summaries of fact with which Mr Toala took no exception.   The burglary charge arises out of an incident that occurred during the day on 29 May 2013.  On that date, Mr Toala went to a residential address and kicked in two glass panels on the front door.  He then reached through the panels and gained entry into the premises.  In doing so, he cut himself and began bleeding profusely inside the house.   This left bloody smears throughout the house, as well as bloody shoeprints on the floor.

[3]      Mr Toala then stole three television sets, two laptop computers, a stereo, two cameras and other electronic items.   The total value of the stolen property was approximately $5,000.

[4]      The assault charge related to an assault on Mr Toala’s partner.  The incident had its genesis on 22 June 2013 when he began arguing with his partner, because she did not want him to be in the children’s room because he was too loud.   He then punched the door, and put a hole in it.  The following day another argument ensued because his partner wanted Mr Toala to leave.   He refused to do so, and used his right hand to punch her in the mouth.  This caused the victim’s mouth to bleed, and she received a swollen lower lip and a cut to the inside of her lip.

[5]      The charge of breaching prison release conditions arose because, on 27 June and  4  July 2013,  Mr  Toala  failed  to  report  to  his  probation  officer  as  he  had previously been instructed to do.  He did not make contact offering any reasonable

excuse for his absence.

1      New Zealand Police v Toala DC Manukau CRI-2013-092-007582, 10 October 2013.

The structure of the sentence

[6]      The Judge took a starting point of three years imprisonment on the burglary charge.  She then reduced that by ten months to reflect mitigating factors personal to Mr Toala.   These included his guilty plea and mental health issues that the Judge considered were relevant to the sentence she was imposing.

[7]      The Judge then imposed a cumulative sentence of three months imprisonment on   the   assault   charge,   and   a   further   cumulative   sentence   of   one   month’s imprisonment on the charge of breaching the release conditions.  This led to the end sentence of two years four months imprisonment.

The appeal

[8]      Counsel for Mr Toala submits that the Judge took a starting point that was too high in relation to the burglary charge.  She also contends that, in doing so, the Judge must have applied an uplift that was too great to reflect Mr Toala’s previous convictions for burglary and dishonesty offending.  She contends that this produced an end sentence that was manifestly excessive.

Decision

[9]      It is not possible to discern from the Judge’s sentencing notes how she came to reach a starting point of three years imprisonment.  It is likely, however, that she did  so  using  the  principles  applied  in  Senior  v  Police.2      Using  that  sentencing method, the court selects a starting point in respect of a burglary charge having regard not only to the nature and circumstances of the offending in question, but also taking into account relevant previous convictions for similar offending.  This method produces a higher initial starting point than the sentencing methodology approved by the Court of Appeal in R v Taueki.3     Although Taueki relates to sentences to be imposed in a different context, the sentencing methodology approved in Taueki is now widely used by sentencing courts, particularly where the starting point must be

a sentence of imprisonment.

2      Senior v Police (2000) 18 CRNZ 340 (HC).

3      R v Taueki [2005] 3 NZLR 372.

[10]     Using Taueki principles, the sentencer selects a starting point having regard only to the nature and gravity of the offending.  An uplift is then applied to reflect previous convictions and other aggravating factors personal to the offender.  The end result of that process is then reduced to reflect any mitigating factors personal to the offender.

[11]     As the Court of Appeal observed in R v Columbus,4  it is necessary when employing the Senior approach to ensure that undue weight is not placed on previous convictions.  The risk inherent in using the approach is that it may produce a starting point that will be too high having regard to the circumstances of the offending for which the offender is to be sentenced.

What would the end sentence be using a Taueki approach?

[12]     In order to assess whether the end sentence in the present case was too high, it is useful to compare it with the end sentence produced using the Taueki approach. In Arahanga v R,5 the Court of Appeal recently indicated that residential burglaries at the lower end of the scale will generally attract a starting point of between 18 months and two years six months imprisonment.  I consider that Mr Toala’s offending would fall somewhere in the middle of this range.  It involved reasonably extensive damage

to the property, as well as the theft of items having a reasonably significant value.

[13]     In Johnstone v Police6, Woolford J approved a starting point of two years imprisonment for similar offending, although there was less damage to the property in which the burglary occurred.   Importantly, for present purposes, the burglary in that case also involved the theft of computers, and the Judge held that the risk of data loss from the computers added to the significant financial and sentimental value of the property taken.

[14]     I therefore consider that a starting point of around two years imprisonment would have been appropriate to reflect the gravity of Mr Toala’s offending.

4      R v Columbus [2008] NZCA 192 at [15].

5      Arahanga v R [2013] 1 NZLR 189 at [78].

6      Johnstone v R [2012] NZHC 551.

[15]     Mr Toala has four previous convictions for burglary.  He also has numerous previous  convictions  for offences  of dishonesty,  including  convictions  for being unlawfully in an enclosed yard and/or unlawfully taking motor vehicles.  The most recent of Mr Toala’s burglary convictions was on 14 January 2013.  On that date he received a sentence of six months imprisonment in respect of a burglary committed on 15 October 2012.  Mr Toala committed the present burglary just six weeks after being released from serving this sentence.

[16]     I consider that Mr Toala’s previous convictions would warrant an uplift of around six months, or 25 per cent.   To this, however, should be added a further modest uplift to reflect the fact that the offending occurred so soon after Mr Toala was released from prison and whilst he was still subject to stringent release conditions.  I would add an uplift of two months to reflect this factor, leading to an end  starting  point  of  two  years  eight  months  imprisonment  before  taking  into account mitigating factors.

[17]     The Judge reduced the starting point on the burglary charge by one-third to reflect mitigating factors personal to Mr Toala.  As already noted, these comprised his guilty pleas, which could attract a maximum discount of no more than 25 per cent, together with the mental health issues to which I have referred.  Applying the same level of discount in the present case, the end starting point of two years eight months imprisonment would be reduced by ten months.  This would produce an end sentence in respect of the burglary charge of one year ten months imprisonment

[18]     Counsel for Mr Toala does not take issue with the cumulative sentences that the Judge imposed in relation to the remaining charges.  This means that the Taueki sentencing method would produce an effective end sentence of around two years two months imprisonment.  A difference of two months is not, in my view, sufficient to lead to the conclusion that the end sentence the Judge imposed was manifestly excessive.

[19]     In addition, however, I consider that Mr Toala received a relatively lenient sentence in respect of the charge of assaulting his partner.  He received a sentence of one year’s imprisonment on a similar charge on 15 July 2010.  The length of that

sentence was probably influenced by the fact that he was sentenced in respect of a large number of charges at the same time.  Mr Toala needs to realise, however, that continued offending of this type is likely to lead to increased sentences.  These will be necessary to make the point that he needs to learn that it is not acceptable for him to assault his partner when her actions displease him.

[20]     For that reason, too, I consider that the end sentence the Judge imposed was within the available range.

Result

[21]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

H N Kim, Manukau City