Toimata v Police
[2022] NZHC 3100
•25 November 2022
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, Ms Toimata and a co-offender attempted to shoplift various items from a New World supermarket in Hamilton. A checkout operator saw the tops of wine bottles protruding from both Ms Toimata’s and a co-offender’s handbags. Both ignored requests by the checkout operator and other staff to stop for bag checks. A checkout operator grabbed Ms Toimata’s handbag. Ms Toimata became abusive towards the checkout operator, slapping him twice in the face and then punching him once in the mouth with a closed fist. He received a split lip and swelling about the lips.
[9] The stolen goods, valued at $95, were recovered. Ms Toimata said that she was getting supplies for her babies, as well as food and wine. When discussing the assault charge, she said she was just trying to get the victim off her.
Third incident – 19 November 2021 – the Uber driver offending
[10] The third incident resulted in another charge of common assault (this time laid under the Crimes Act 1961).5
[11] Late on Friday 19 November 2021, Ms Toimata and a male associate ordered an Uber driver to take them to an address in Hamilton. The driver collected them and drove them to the address. He parked on the road outside the address. Ms Toimata told him to drive up the driveway. He declined because he felt unsafe. Ms Toimata
3 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
4 Summary Offences Act 1981, s 9. Maximum penalty six months’ imprisonment or $4,000 fine.
5 Crimes Act, s 196. Maximum penalty one year’s imprisonment.
then demanded a refund. He explained that he could not do that because the funds were managed remotely. She responded, “Do you want a hiding?” Ms Toimata then grabbed him from the back seat, forcefully placing her arm around his neck. The victim sustained discomfort and suffered restricted movement to his neck following the assault. He has required ongoing medical treatment. He says he now feels apprehensive about accepting Uber jobs from certain areas which has had an effect on his income.
[12] In explanation to the police, Ms Toimata said she was drunk and was not thinking clearly at the time. She was apologetic and offered to write a letter of apology to the victim. She acknowledged that alcohol affected her decision-making and said she had since given up drinking.
Fourth incident – 2 December 2021 – breach of bail
[13] The fourth incident comprises a charge of failing to answer bail.6 I have no information on the circumstances of this offending.
Fifth incident – 5 April 2022 – the Countdown offending
[14]The fifth incident resulted in another charge of theft (under $500).7
[15] On Saturday 5 April 2022, Ms Toimata loaded groceries valued at $291 into a trolley at a Countdown supermarket in Hamilton. She left the store without paying for the groceries, even though she was approached by a staff member.
Sixth incident – 16 April 2022 – the Kmart offending
[16]The sixth and most serious incident resulted in two more charges of theft (under
$500),8 another charge of common assault (laid under the Crimes Act)9 and two charges of aggravated assault.10 The incident received national media attention after a video of the offending was posted on social media.
6 Bail Act 2000, s 38. Maximum penalty one year’s imprisonment or $2,000 fine.
7 Crimes Act, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
8 Crimes Act, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
9 Crimes Act, s 196. Maximum penalty one year’s imprisonment.
10 Crimes Act, s 192(1)(c). Maximum penalty three years’ imprisonment.
[17] On 16 April 2022, Ms Toimata and a co-offender were at a Kmart store in Hamilton. Staff noticed both moving towards an exit with two trolleys of goods they had not paid for. Three staff members blocked the exit. The co-offender rammed her trolley into the staff. She then grabbed a pair of metal tongs and swung them at one of the staff member’s body. She next swung the tongs three times at a second staff member’s face. Ms Toimata, meanwhile, had grabbed hold of the third staff member’s hair and she punched the staff member three times to the head. When a member of the public intervened, both offenders fled to the carpark. They returned to the store shortly thereafter. The co-offender again attacked the staff members with the tongs. Ms Toimata uplifted five boxes of goods from a nearby shelf. The co-offender picked up a cellphone belonging to one of the staff members which had fallen out of a pocket. Both Ms Toimata and her co-offender then left the store and fled in a car that was parked and waiting for them.
[18] The first staff member suffered wounds and swelling to her upper back and bruising and swelling to her arm. She had to take a week off work. The second staff member received scratches to his forearms and chest and the third a small scratch on his forearm.
[19] The Police summary of facts records that Kmart recovered $1,287 worth of goods that the two women had intended to steal. Staff estimate the defendants still left with approximately $400 to $500 worth of goods, as well as the cellphone, valued at about $250.
District Court sentencing
[20] After setting out the details of the offending, the Judge recorded that he was taking into account the need to hold Ms Toimata accountable, to deter her, to denounce her conduct, to provide for the victims’ interests and to impose the least restrictive outcome he could. He referred to the Uber driver’s victim impact statement. It was the only victim impact statement before him. He accepted a submission made for Ms Toimata that the incidents were separate and that cumulative sentences were required.
[21] The Judge took the Kmart offending as the lead charges. He noted that the incident was planned. He also noted that it was a joint enterprise, making each offender responsible for the other’s actions. The Judge observed that what occurred was a probable consequence of what each was doing. The use of the tongs and the trolley as weapons by the co-offender were seen as aggravating features. The Judge said that, in any event, Ms Toimata became violent, punching one of the staff members in the face when she could have returned the goods without confrontation. He observed that this was not simple shoplifting. He also commented that in the end Ms Toimata and her co-offender ended up going back into the store and stealing goods.
[22] The Judge considered that a starting point of 15 months as submitted for Ms Toimata was too light. He noted that the two offenders were not stealing food for their families and that in all likelihood they were stealing to order so that they could sell the stolen goods for money. The Judge adopted a starting point of 24 months’ imprisonment. He uplifted this by four months for the Uber driver offending which, he considered, was aggravated by the fact the Uber driver was simply going about his work. He applied another four-month uplift for the New World offending, noting that it was aggravated by unnecessary violence and again by the fact Ms Toimata was not stealing food, but wine. The Judge imposed no uplift for the rest of the offending, which he considered could “all be served at the same time”.11 The starting point for all of the offending was therefore 32 months’ imprisonment.
[23] The Judge then assessed the aggravating factors personal to Ms Toimata. He noted that her initial offending had brought her before the Youth Court where she had been “given considerable supervision in attempts to stop [her] offending”.12 She did not however stop offending and she received her first conviction as an adult for theft in 2015. He also noted that Ms Toimata was on bail for the first incident when she committed the rest of the offending. He applied an uplift of four months for Ms Toimata’s previous offending and for the fact that she had offended while on bail, bringing the total to 36 months’ imprisonment.
11 Police v Toimata, above n 1, at [22].
12 At [23].
[24] The Judge then addressed various personal matters that were in Ms Toimata’s favour. He started with the guilty pleas. He observed that she did not plead at her first or second appearance for the Kmart offending. He accordingly allowed her a 20 per cent discount instead of the full 25 per cent. He did not consider that a discount for youth was appropriate, noting that she was 23 to 24 years old at the time of the offending, that she is streetwise, that she has been offending since her early teens and that she is now the mother of two children. He allowed her a two-month discount for the four and a half months she had spent on electronically monitored (EM) bail. The Judge went on to consider the s 27 report. He noted that Ms Toimata lost her mother when she was aged three. Her father remarried when she was 10. She began stealing shortly thereafter. She stole to get things she knew her father could not afford. She grew to love the feeling the stealing gave her and she became bolder with age. She developed a sense of entitlement. When she was caught, she lashed out. The Judge noted that Ms Toimata raised other matters with the report writer, but expressed doubt as to whether they had occurred given that Ms Toimata had not laid a complaint. He considered that there was little or no nexus between Ms Toimata’s offending and her upbringing but he nevertheless allowed her a five per cent discount for the matters raised in the s 27 report.
[25] The Judge referred to the two pre-sentence reports. The first advised that Ms Toimata had previously been the subject of community-based sentences of supervision which she breached on numerous occasions. The report recorded that she had a heightened sense of entitlement and an issue with alcohol but that her focus was then on her children. The second report indicated that home detention might be an appropriate sentence.
[26] The overall discounts the Judge was prepared to allow totalled 25 per cent. In addition there was the two-month deduction for time spent on EM bail. That brought
the starting point of 36 months down to a sentence of 25 months’ imprisonment, or two years and one month. This was the sentence imposed by the Judge.13
The appeal
[27] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. Pursuant to s 250 of that Act, Ms Toimata’s appeal against sentence must be allowed if the Court is satisfied there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
[28] The Court does not start afresh and substitute its own opinion for that of the original sentencer. Rather, it is for Ms Toimata to demonstrate that there was a material error “whether intrinsically, or as a result of additional material submitted” on appeal.14 If there is an error of the requisite character, the appeal Court will then form its own view of the appropriate sentence.15 The focus is on the end sentence imposed and whether it was within range.16 It is not on the correctness of the process by which the sentence was reached.
Analysis
[29] Ms Toimata challenges almost all aspects of the sentence imposed. I consider each ground of appeal in turn.
13 How this sentence was divided up between the various charges is not particularly clear. The Judge imposed a sentence of three months’ imprisonment in relation to the assault involved in the New World offending, a sentence of four months’ imprisonment “on top of the three months” in relation to the assault on the Uber driver and a sentence of 18 months in relation to the assault on one of the staff members involved in the Kmart offending. The Judge recorded that this made an end sentence of 25 months’ imprisonment. He then dealt with the other charges as follows: on the drink driving charge – one month’s imprisonment and disqualification from driving for six months; for the New World theft – one month’s imprisonment; for the breach of bail – one month’s imprisonment; for the Countdown offending – one month’s imprisonment; for the theft of the cellphone involved in the Kmart offending – one month’s imprisonment; for the other assaults (presumably in relation to the Kmart offending) – 18 months’ imprisonment; and for an unspecified assault – four months’ imprisonment. These various sentences total to 27 months’ imprisonment. The Judge did not explain how they fitted within his overall sentence of 25 months nor whether they were intended to be concurrent or cumulative – presumably it was the former.
14 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
16 At [36].
Starting point for the Kmart offending
[30] It was common ground that the Kmart offending comprised the lead charges. Mr Taylor, for Ms Toimata, argued that the maximum penalty for this offending was three years’ imprisonment (presumably based on the maximum penalty for aggravated assault). He observed that the Judge had adopted a starting point of 24 months. He said that this was effectively 67 per cent of the maximum penalty for the charges. He submitted that, given the 25 per cent discount he suggested Ms Toimata was entitled to for her early guilty plea, the Judge effectively placed the offending as the most serious of its kind. He put it to me that this was in error. Instead, he argued a starting point of 15 or 16 months, or 40 to 45 per cent of the maximum penalty, would be more appropriate. He also submitted that the Judge should have recognised what each defendant did. He accepted that Ms Toimata was actively involved, but said that it was the co-offender who used the weapons and was the lead aggressor.
[31] Ms Keller submitted that Mr Taylor’s arguments were misconceived. First, she said that the Kmart offending involved five charges, not just a single charge of aggravated assault. She submitted that the 24-month starting point adopted by the Judge reflected a global approach for all of the offending and that this was appropriate. She further submitted that the starting point reflected Ms Toimata’s culpability given the aggravating features of the offending. Secondly, she said that Mr Taylor’s submissions on the offenders’ respective roles ignored the fact that the offenders acted in support of each other and pursuant to a joint enterprise.
[32] In my view, the Judge did not err in treating all of the charges involved in the Kmart offending together. It would have been artificial to separate them out.17 Further, both Ms Toimata and her co-offender were acting together and aiding each other in the commission of the offences. Neither withdrew from the offending that occurred. What occurred was a likely consequence of their joint actions and both are liable for all that occurred both pursuant to the Crimes Act and at common law.18
17 Sweeney v Police [2017] NZHC 1330.
18 Crimes Act, s 66(2); and see Chan Wing-Siu v R [1985] AC 168 (PC) at 175; Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445; and Uhrle v R [2016] NZSC 64, (2016) 28 CRNZ 270.
[33] The offending was serious offending of its kind. It resulted in two charges of theft, a charge of common assault and two charges of aggravated assault. As the Judge observed, it was not simple shoplifting. It had the hallmarks of stealing to order. There was clearly some planning – Ms Toimata and her co-offender acted in concert and they had a getaway car waiting for them. There were multiple offenders. There was violence – both used and threatened. Ms Toimata hit one of the staff members in the head. Her co-offender used weapons. Violence was not a necessary consequence. Ms Toimata and her co-offender had the option of leaving the goods they were trying to steal and making good their escape. They however chose to get into a violent confrontation. Further, even though they initially left the store, they then returned, stole items and again threatened violence to staff members.
[34] Neither counsel nor my research clerk were able to find any directly comparable authorities. Sentences for broadly similar offending have been in the range of 12 months’ imprisonment to two years and nine months’ imprisonment.19 Offending of the kind committed by Ms Toimata is becoming increasingly common and there is considerable public concern. There is a need to emphasise the sentencing principles of deterrence and denunciation. I am satisfied that the starting point of 24 months’ imprisonment for the Kmart offending adopted by the Judge was well within the available range for offending of this kind. This aspect of the appeal fails.
19 Haereroa v R [2020] NZCA 169 – aggravated assault and theft (plus other charges). Defendant’s associates were challenged by staff member while attempting to steal clothing from a department store. Defendant threatened staff member and pushed her to allow associates to leave with clothing. The Court of Appeal adopted a starting point of two and a half years, observing at [32]: “[Ms Haereroa’s] assault on a shop assistant to facilitate the escape of an accomplice who had been shoplifting in the premises is an instance of troubling criminality”; Ruka v Police HC Auckland CRI-2009-404-423, 12 February 2010 – aggravated assault and theft. Starting point of 24 months reduced to 12 months on appeal; Rangirangi v R [2016] NZHC 122 – causing grievous bodily harm with intent to injure and theft. District Court Judge adopted a starting point of two years and nine months’ imprisonment. On appeal, Lang J dismissed an argument that the defendant had acted in self defence of his partner. He considered that the guilty plea discount was within range and dismissed the appeal; Puriri v Police [2018] NZHC 1682 – aggravated assault and theft. Whata J considered that the 18-month starting point adopted by the District Court Judge was excessive. He allowed an appeal against a refusal to discharge without conviction; Reedy v Police [2019] NZHC 2435 – shoplifting under $500, assault with a weapon, intentional damage and possessing a knife in a public place. The District Court adopted a starting point of three years’ imprisonment. On appeal, Hinton J reduced the starting point to 13 months’ imprisonment.
Uplift for other offending and for criminal history
[35] The Judge imposed a 12-month uplift in total. The uplift comprised four months for the Uber driver offending, four months for the New World offending and four months for Ms Toimata’s previous convictions and for the fact that the offending occurred while she was on bail.
[36] Mr Taylor submitted the Judge erred in this regard. He argued that an uplift of between six and nine months would have been more appropriate. He noted that Ms Toimata had only received community-based sentences for offending between 2015 and 2019 and he suggested that the 12-month uplift – which he described as “the maximum for the associated charges” – was clearly excessive.
[37] Ms Keller submitted that the four-month uplifts for the Uber driver offending and New World offending were well within range and appropriate. She also said the four-month uplift for Ms Toimata’s criminal history and for the fact that the offending was committed whilst Ms Toimata was on bail was appropriate.
[38]I agree with Ms Keller’s submissions.
[39] All of the offending (other than the excess breath alcohol offending) occurred whilst Ms Toimata was on bail in relation to the excess breath alcohol charge. This fact alone warrants an uplift.
[40] The assault on the Uber driver was serious offending in its own right, given the vulnerability of the driver, at night, alone in a car and lawfully going about his business. The driver has suffered ongoing discomfort and restricted movement as a result of the assault. It has also had an impact on his ability to earn an income. Such offending justifies a stern response.20 In my judgment, the four-month uplift was appropriate.
20 Shortland v Police HC Hamilton CRI-2009-419-57, 8 December 2009.
[41] Similarly, the uplift for the New World offending was appropriate. Ms Toimata had the opportunity of walking away when challenged. Instead, she resorted to violence.
[42] Ms Toimata has a lengthy criminal history. Her offending commenced in 2013 with a common assault. She appeared before the Youth Court. There were then various dishonesty and further assault charges, all in the Youth Court. She first appeared in the District Court in 2015 – for theft – and there was then a raft of offending through until September 2019. Most of the convictions were for theft, burglary or assault. Ms Toimata has not previously been imprisoned. She has however had a number of sentences of supervision imposed on her, no doubt in an attempt to break her cycle of offending. She has not taken advantage of those opportunities. Indeed, her offending has escalated. Clearly, an uplift was required to recognise her criminal history and the recidivist nature of her offending.
[43] In my judgment, the uplifts applied by the Judge were well within range and they were appropriate. Further, the overall starting point sentence did not offend totality principles.21 The starting point sentence of 36 months’ imprisonment adopted by the Judge was appropriate and within range. No error was made in this regard.
The discounts
[44]I now turn to the discounts.
(a)EM bail
[45] The Judge reduced his starting point sentence by two months, to allow for time spent on EM bail. This was clearly appropriate and it was not challenged by Ms Toimata.
(b)The guilty pleas
[46]The Judge gave a discount of 20 per cent for the guilty pleas.
21 Sentencing Act 2002, s 85; and R v Xie [2007] 2 NZLR 240 (CA) at [16].
[47] Counsel were agreed on the factual background. Ms Toimata handed herself in at a police station, after video footage of the Kmart offending was placed online and it attracted public attention. After she was charged, there was an initial discussion between Ms Toimata’s counsel and the police with a view to resolving matters. Initially, the police were not prepared to amend the charges as laid. A further proposal for resolution was then advanced. The police resolved matters with Ms Toimata’s co-offender and after discussions with Ms Toimata’s counsel, they agreed to amend the charge list against Ms Toimata, so that it matched the charge list against the co-offender. Ms Toimata then entered her guilty pleas. As a result, there was a delay in entering the pleas but that delay is understandable and it should not be held against Ms Toimata. It would not preclude a 25 per cent discount for the pleas. However, the strength of the Crown case is also relevant. The video footage of the Kmart offending clearly identified Ms Toimata. She was not wearing a mask or disguise at the time. There were a number of witnesses to what occurred. There was also video footage of the New World offending. Given the strength of the Crown case, in my view, the discount of 20 per cent allowed by the Judge was not inappropriate.
(c)Youth
[48] Mr Taylor submitted that Ms Toimata should have received a five per cent discount for youth. He submitted that Ms Toimata’s offending reflects the impulsivity of a young person. He said that she is a young woman albeit with some maturing to do. He submitted that she has recently shown a growth in maturity, reflective of her increasing age. He also submitted her age suggests a greater prospect of rehabilitation.
[49] Ms Keller submitted there is no presumption in favour of a discount for youth. The Court must make an assessment in the specific circumstances. She argued that the Judge’s assessment was correct.
[50] As the Court of Appeal explained in Churchward v R, youth is relevant to offending in a number of ways.22 Age-related neurological differences between young people and adults mean young people can be more susceptible to negative influences and outside pressures than adults. Young people may be more impulsive.
22 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[78].
Imprisonment has a greater effect on young people and they can have greater capacity for rehabilitation; the offending phase is frequently one that passes rapidly for young people, so a balanced reaction is required to avoid alienating them from society; and criminal convictions at an early stage may have a disproportionate impact on a young person’s ability to gain meaningful employment and play a worthwhile role in society.
[51] Ms Toimata is now 25 years old. At the time of the offending, she was between 23 and 24 years old.
[52] Though she is over 18, a youth discount can still be appropriate for offenders over that age.23 Nevertheless, in my judgment, Ms Toimata is not entitled to a youth discount. At age 23/24, she was well into adulthood. She has two children. She has had numerous opportunities given to her to rehabilitate, both by the Youth Court and the District Court. Her offending, at least in part, was not impulsive. It suggests that she is an angry young woman with a sense of entitlement, a brazen disregard for authority and a wanton disrespect for other people. She does not hesitate to resort to violence when challenged. In my view, the Judge did not err in declining Ms Toimata a discount for youth.
(d)Cultural factors
[53] Mr Taylor submitted there was a clear nexus between Ms Toimata’s background, as set out in the s 27 report, and her offending. He queried the Judge’s denial of that nexus. He argued that a 20 per cent discount was appropriate for the s 27 factors (and for remorse).
[54] Ms Keller argued that the five per cent discount the Judge afforded Ms Toimata for her cultural background and personal factors was within range and appropriate. She said that the Judge was right to consider that there was a limited nexus between Ms Toimata’s background and her offending.
[55] A report prepared under s 27 of the Sentencing Act 2002 was available to the Judge. It was written by Delwyne Woodmass, of Cultural Reports Aotearoa Ltd.
23 Churchward v R, above n 22, at [98].
Ms Woodmass interviewed Ms Toimata. She also spoke to Ms Toimata’s father. Relevantly:
(a)Ms Toimata’s mother passed away when Ms Toimata was just three years of age.
(b)Ms Toimata’s father raised the family. Initially, he worked part-time, dropped the children at school and was at home when they got home. Subsequently he changed jobs and worked full-time.
(c)Ms Toimata attended primary school.
(d)Ms Toimata’s father was fairly strict; Ms Toimata and her siblings all knew what they had to do in the household and how they could help.
(e)Ms Toimata’s father remarried when Ms Toimata was 10. Her stepmother moved into the house with her daughter, who was older than Ms Toimata. Initially Ms Toimata did not have a good relationship with her stepmother. Ms Toimata admitted that she was “naughty” towards her. She also said that on occasion she hit her stepmother and that she knew “how to push all her buttons”. She did not seek to blame her stepmother for her offending or for her subsequent lifestyle.
(f)Ms Toimata said that she was abused by members of her extended family. She has however given conflicting answers in the past when asked about this.
(g)Ms Toimata went to the local intermediate school. According to her, that is when all the “shit started happening”.
(h)Ms Toimata said that she wanted things that other kids had and that her father could not afford to buy for her. She acknowledged that her father always provided enough, but that there was never anything left over to buy the things other kids had.
(i)Ms Toimata said that she began to steal. Stealing was “like a rush” and she “loved the way it made her feel”. When her father, who she described as a kind and gentle man, found some of the items she had stolen, he would return them to the store from which they were taken and apologise for his daughter’s behaviour. He would then call the family together and they would have a meeting about Ms Toimata’s behaviour. When she was told by her father not to “hang out with the naughty kids”, she responded, “I [am] the naughty kid”. Ms Toimata said that she became addicted to getting things for nothing and that she continued to steal;
(j)Ms Toimata admitted that “she lashes out when she gets caught stealing”. She said that she does so because of the embarrassment of being caught and the resulting humiliation.
[56] Ms Woodmass also spoke to Ms Toimata’s father. He explained how the family was brought up from his perspective. He confirmed much of what his daughter had reported.
[57] The other notable matter disclosed in the s 27 report is that Ms Toimata lost her grandfather in 2021. She had been living with and caring for him when he died. It seems that she may have begun drinking more after his death.
[58] The Court of Appeal in Zhang v R considered the role of s 27 reports.24 It observed that sentencing must achieve justice in individual cases and that this requires flexibility and discretion.25 The Court further noted that ingrained systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity can require consideration at sentencing, when it is shown that they have contributed causatively to an individual’s offending.26 There does not need to be extensive evidence of a nexus between offending and socio-economic and cultural disadvantage
24 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
25 At [10(a)].
26 At [159]. See also Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; and R v Rakuraku [2014] NZHC 3270.
for a discount to be granted.27 The assessment of the nexus between the offender’s background and the offending should not be a mechanical exercise with a high threshold of proof, but an overall assessment, assisted by evidence available under s 27, generally of how personal circumstances might have contributed to culpability or offending.28
[59] In the present case, there is, in my judgment, little or no nexus between Ms Toimata’s background and her offending. I do not doubt that the loss of her mother at a very young age was distressing and that it had an impact on Ms Toimata. However, her father did his best to bring up the family in an appropriate way. Ms Toimata acknowledges his efforts. I also accept that the loss of her grandfather will have caused distress for Ms Toimata. There is however no evidence of socio-economic or cultural deprivation. There is no suggestion of any disconnection from whānau, whakapapa or culture. There is nothing to suggest violence or drug/alcohol abuse in Ms Toimata’s upbringing. Ms Toimata reported being subject to abuse, but her evidence in this regard is equivocal and, even on her account, the abuse was limited. Ms Toimata’s sense of entitlement, her propensity for theft and her ready resort to violence do not seem to be directly associated with her upbringing. In my view, the five per cent allowed by the Judge was, if anything, generous.
(e)Remorse
[60] As for remorse, I do not consider that there has been any genuine remorse by Ms Toimata. The comments made by Ms Toimata to the writer of the pre-sentence report do not suggest remorse. She blamed the Uber driver for her assault on him. She also said that she is entitled to take things because she always misses out. I suspect Ms Toimata regrets the circumstances she now finds herself in and that she is belatedly trying to gain an advantage by claiming remorse in the hope that it might help her situation.
[61] In my judgment, the Judge did not err in not granting Ms Toimata a discount for remorse.
27 Arona v R [2018] NZCA 427 at [59].
28 Waikato-Tuhega v R [2021] NZCA 503 at [51].
Home detention
[62] I have concluded that the Judge did not err in imposing a sentence of 25 months’ imprisonment. That is not a short-term sentence of imprisonment and, accordingly, issues of home detention do not arise. Nevertheless, for the sake of completeness, I record that I would not have been prepared to commute Ms Toimata’s sentence to one of home detention, even if I had concluded that a short-term sentence of imprisonment should have been imposed. Given her criminal history and given that non-custodial sentences have failed to deter her from further offending, in my view, Ms Toimata has reached the stage where a sentence of imprisonment is the only sentencing option. Further, as I have noted above, offending of the type committed by Ms Toimata is becoming increasingly common and the community is justifiably concerned. The sentencing principles of denunciation and deterrence call for a stern response.
Result
[63]For the reasons I have set out, the appeal is dismissed.
Wylie J
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