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…

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 [2013] NZHC 3270
Case: [2013] NZHC 3270
Decision Date: 9 December 2013

CaseChat Overview and Summary

Lancy Toala appealed against the sentence imposed on him by the District Court, arguing that it was manifestly excessive. Toala was convicted of one charge of burglary, one charge of assaulting a female, and one charge of breaching his prison release conditions. The District Court Judge sentenced him to an effective term of two years and four months imprisonment. Toala argued that the starting point for the burglary charge was too high, and that the uplift applied to reflect his previous convictions was too great. The High Court examined the sentencing notes to determine how the Judge arrived at the starting point of three years imprisonment for the burglary charge. The Court noted that the Judge likely used the principles applied in Senior v Police, which produces a higher initial starting point than the sentencing methodology approved by the Court of Appeal in R v Taueki. The Court then compared the end sentence with the end sentence produced using the Taueki approach. The Court found that the end sentence was not manifestly excessive, and dismissed the appeal against sentence.

Orders