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Toimata v Police

Toimata v Police

Case [2022] NZHC 3100 25 November 2022

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-65

[2022] NZHC 3100

BETWEEN
KITIA LUCY TOIMATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 November 2022

Appearances:

S J Taylor for Appellant U Keller for Respondent

Judgment:

25 November 2022

JUDGMENT OF WYLIE J

(Appeal against sentence)

This judgment was delivered by Justice Wylie On 25 November 2022 at 12.00 noon
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Hamilton Legal, Office of the Crown Solicitor, Hamilton S Taylor, Hamilton

TOIMATA v NEW ZEALAND POLICE [2022] NZHC 3100 [25 November 2022]

Introduction

[1] The appellant, Kitia Toimata, was sentenced to two years and one month’s imprisonment by Judge McDonald in the Hamilton District Court on 6 October 2022.1 The sentence was imposed in relation to 11 charges arising from six separate incidents, all of which occurred between 18 June 2021 and 16 April 2022. The detail is set out below.

[2] Ms Toimata appeals her sentence. She says that the starting point adopted by the Judge for the lead group of offences was too high, that the uplift for other offending and her conviction history was excessive, that the guilty plea discount was inadequate, that the discount for cultural factors disclosed in a s 27 report was insufficient and that she should have been allowed a discount for both her youth and remorse. As a result of these alleged errors, she says that the end sentence imposed was manifestly excessive. If the appeal is allowed and her sentence is reduced to a short-term sentence of imprisonment, she seeks that the sentence be commuted to a sentence of home detention.

[3] The Crown supports the sentence imposed by the Judge, submitting that the starting point, the uplifts and the discounts allowed were appropriate and within range. It says that the end sentence is not manifestly excessive.

Background

[4] The circumstances of, and the charges arising from, each of the six incidents are as follows.

First incident – 18 June 2021 – excess breath alcohol

[5]The first incident resulted in a charge of driving with excess breath alcohol.2

1 Police v Toimata [2022] NZDC 19783.
2 Land Transport Act 1998, ss 56(1) and 56(3). Maximum penalty three months’ imprisonment or a $4,500 fine. The court must also order the person be disqualified from holding or obtaining a driver licence for at least six months.

[6] Just after 10 pm on Friday 18 June 2021, Ms Toimata crashed her Nissan motor vehicle in a car park. No other vehicles were involved. On testing it was found that Ms Toimata’s breath contained 816 micrograms of alcohol per litre of breath, more than double the legal limit (400 micrograms of alcohol per litre of breath).

Second incident – 19 September 2021 – the New World offending

[7] The second incident resulted in a charge of theft (under $500)3 and a charge of common assault (laid under the Summary Offences Act 1981).4

[8] At around 4 pm on 19 September 2021,…

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 Toimata v Police

Details

AGLC: Toimata v Police [2022] NZHC 3100
Case: [2022] NZHC 3100
Decision Date: 25 November 2022

CaseChat Overview and Summary

Kitia Toimata, the appellant, appeals against her sentence imposed by Judge McDonald in the Hamilton District Court on 6 October 2022. Toimata was sentenced to two years and one month’s imprisonment in relation to 11 charges arising from six separate incidents between 18 June 2021 and 16 April 2022. Toimata contends that the starting point for the lead group of offences was too high, the uplift for other offending and her conviction history was excessive, the guilty plea discount was inadequate, the discount for cultural factors disclosed in a s 27 report was insufficient and she should have been allowed a discount for both her youth and remorse. As a result of these alleged errors, she submits that the sentence imposed was manifestly excessive. If the appeal is allowed and her sentence is reduced to a short-term sentence of imprisonment, Toimata seeks that the sentence be commuted to a sentence of home detention.

Justice Wylie considered the arguments presented by both parties. Toimata argued that the starting point for the Kmart offending was too high and that the Judge should have recognised what each defendant did. The Crown submitted that the starting point adopted by the Judge reflected a global approach for all of the offending and that this was appropriate. Wylie J found that the Judge did not err in treating all of the charges involved in the Kmart offending together and that it would have been artificial to separate them out.

Toimata also argued that the Judge erred in the uplift for other offending and for criminal history. The Crown submitted that the four-month uplift for the Uber driver offending and New World offending were well within range and appropriate. Wylie J agreed with the Crown and found that the uplifts applied by the Judge were well within range and they were appropriate.

The court further considered the discounts. Toimata argued that she should have received a discount for youth, cultural factors and remorse. The Crown submitted that there is no presumption in favour of a discount for youth, that the five per cent discount the Judge afforded Toimata for her cultural background and personal factors was within range and appropriate and that Toimata did not show any genuine remorse. Wylie J agreed with the Crown’s submissions and found that the Judge did not err in declining Toimata a discount for youth, cultural factors and remorse.

Ultimately, Wylie J found that the Judge did not err in imposing a sentence of 25 months’ imprisonment and dismissed the appeal.

No final orders are mentioned in the text.

Orders