Toi v The Queen

[2016] NZHC 797

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-10 [2016] NZHC 797

BETWEEN

AARON PAUL CHRISTOPHER TOI

Appellant

AND

THE CROWN Respondent

Hearing:	26 April 2016
Appearances:	G A Walsh for the Appellant R L Mann for the Respondent
Judgment:	26 April 2016

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr G A Walsh, Barrister, Hamilton

Ms R L Mann, Almao Douch, Office of the Crown Solicitor, Hamilton

TOI v R [2016] NZHC 797 [26 April 2016]

[1]      Mr Toi pleaded guilty to a number of domestic violence offences following a sentence indication of 4 years 6 months subject to any mitigating circumstances. That indication was given by Judge D M Wilson QC.  The offences included one of indecent assault.

[2]      The appellant pleaded guilty to all of the offences apart from indecent assault and on sentencing that charge was dismissed.  Judge Wilson on sentencing adopted the starting point of 4 years 6 months.   It was reduced for personal circumstances and guilty pleas to an end sentence of 3 years 4 months.

[3]      The only point on appeal is whether the starting point should have been less than 4 years 6 months because the indecent assault charge was no longer before the Court for sentencing.

[4]      The sentence indication and the final sentence were directed to three groups of offences.  One group of offences, on 24 July 2014, which were taken as the lead offences, included serious offences.  These were assault with a weapon, threatening to kill, assault with intent to injure, aggravated assault, and injuring with intent to injure.   There was also the indecent assault charge and a charge of breach of a protection order.  The indicated starting point was between 2 years 9 months and 3 years.

[5]      There was an increase for offences of a similar or broadly similar nature committed between January and May 2014.   The indication was 9 to 12 months imprisonment as the increase.  The final charge was one of attempting to pervert the course of justice on 28 July.   By then the appellant was in prison, having been arrested on the charges arising out of events on 24 July.  The indicated increase for that offence was 6 months.  As the Judge said on the sentencing indication, standing alone  the  starting  point  for  the  sentence  would  have  been  2  ½  to  3  years imprisonment on that one charge.

[6]      In  respect  of  the  offences  on  24  July  the  Judge  said  in  his  sentencing indication:

[7]       On 24 July, just under two months later, she was in bed, heard a sound, and found you in the hallway of her place.  You asked where some people were and she tried to calm you down before going back to bed.  But you remained angry.  You went into the bedroom and accused her of lying, punched her on the side of the head, took her phone and checked her text messages.   Another example of your jealousy and distrust.   She said that there was nothing there.  You told her she was a liar and slapped her around. That is the charge of injuring with intent to injure.  You began then to attack the hair that she was proud of, with a pair of scissors, and you cut it off with a pair of scissors.  You knew what effect that would have on her.  It would cause her considerable distress, and that is why you did it.  In the context of that, you crouched over her with the scissors in your fist, the sharp ends pointing at her, and told her repeatedly that you were going to kill her.

[8]       As you began to calm down, she went off to the kitchen to get some ice to deal with her injuries.  You got angry again, kicked her in the stomach and then to the side of her thigh.  These are both full-strength kicks.  You then allowed her to sit outside in the cool air since she was not feeling well and you attempted to get her to drink beer with you but she refused, so you slapped her around the head again.  She went to run away, yelling for help, trying to get people to call the police and you grabbed her and put your hand over her mouth to muffle her screams.   Then, as she tried to escape, you grabbed hold of her dressing gown and during the struggle it ripped leaving her in her underwear.  This is being charged as an indecent assault.  Were you to be convicted of that, that would be a three strikes matter. Also on the same  day,  in the  context of  all  of that of course, that was a breach of protection order.

[7]      On  sentencing,  on  4  February  2015,  the  Judge  was  well  aware  that  the indecent assault was not proceeding because he dismissed it.

Evaluation

[8]      Under s 116(2) of the Criminal Procedure Act the sentencing indication was binding on the Judge, subject to provisos which are not relevant.  However, s 116(2) did not of itself require the Judge to reduce the starting point because one of a number of offences was no longer proceeding.  There was, therefore, to that extent no error of principle.

[9]      I am also satisfied that there was no other error by the Judge.  The sentencing indication that had been given did not contain any distinct term for the indecent assault.   It was, as already indicated in the background summary, one only of a number of offences.  What is particularly relevant in respect of the appellant’s point on appeal, is that the Judge plainly considered it was of no material consequence in terms of his assessment of a global starting point for a number of offences.   It is

implicit in what he said that he considered the charge of indecent assault to be peripheral at best.  I think it is fair to say that what may have been underlying the way in which the Judge put it in his sentencing indication notes, is that he thought it was somewhat surprising that the factual allegations had given rise to a charge of indecent assault.  It also appears that the Crown was of a similar view because the charge did not proceed.

[10]     Giving full weight to s 116 of the Criminal Procedure Act I am satisfied that there was no error.  Generally, an appeal against sentence will only be allowed if the sentence is manifestly excessive.  Where there has been a sentencing indication that primary consideration must be tempered by s 116.  The assessment I have made does temper the question of manifest excess against that statutory requirement.  I am in no doubt that there was no error. A proper sentence was imposed on the appellant in the light of all relevant circumstances when the sentencing indication was given, taking full  account  of  the  subsequent  matters  brought  into  account  on  mitigation,  and having regard to dismissal of the indecent assault charge.

[11]     The appeal is in consequence dismissed.

Woodhouse J