Toko v Police
[2012] NZHC 1900
•26 July 2012
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2012-488-000040 [2012] NZHC 1900
WILLIAM TOKO
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 26 July 2012
Counsel: R J Bowden for Appellant
T R Nicholls for Respondent
Judgment: 26 July 2012
JUDGMENT OF KEANE J
Solicitors:
Crown Solicitor, Whangarei: [email protected]
Counsel:
WILLIAM TOKO V NEW ZEALAND POLICE HC WHA CRI 2012-488-000040 [26 July 2012]
[1] On 14 June 2012 William Toko was sentenced in the District Court, Whangarei, to imprisonment for 15 months for three breaches of a protection order. He appeals his sentence as manifestly excessive on a single ground.
[2] The sentencing Judge, Judge de Ridder, took as his starting point for sentence a six month term of imprisonment for the first offence. He uplifted it by 50 per cent in respect of the two later offences to nine months imprisonment. He then increased that by one year, on account of Mr Toko's previous related convictions, to 21 months imprisonment. Then he allowed Mr Toko a 25 per cent discount on account of his early plea, resulting in the sentence under appeal.
[3] The sole ground for the appeal is that the uplift for previous convictions, an uplift of 130 per cent, is wholly disproportionate.
Context
[4] The three offences for which Mr Toko was sentenced were breaches of a protection order granted his former partner and the mother of his three children, I understand, in February 2002.
[5] In each instance, these breaches, on 20 July, 1 August and 15 November
2011, lie in letters that Mr Toko wrote from prison while serving a sentence of imprisonment for unrelated offending: two to his former partner and one to her employer. In the letters to the former partner, Mr Toko stated: 'it wouldn't be safe for me or anyone else that you hook up' and also 'I hope you make the right choice sweet heart because vengeance is mine'. He went on to say 'we will be together till one of us leaves this earth'.
[6] The statement of facts went on to say that these letters constituted psychological abuse and had caused Mr Toko's former partner emotional distress and that the one sent to her employer had been an attempt to disrupt her employment. Mr Toko had, when spoken to, it said, explained the letters in this way; that, when he was angry, he wrote things down to get them out of his head.
[7] Mr Toko's former partner, in her victim impact statement, accepted that he could certainly write to his children and perhaps even also to her. But in the letters he sent he spoke, on the one hand, about their former relationship in a highly intimate way and, on the other, was threatening. She found his letters obsessive and troubling.
[8] Mr Toko's pre-sentence report began by stating that these three offences meant that he had now offended in this way 15 times since 2005. He was assessed to be at medium to high risk of re-offending in this and other ways. A long term of imprisonment was recommended.
[9] It remains to add that Mr Toko's list of previous convictions is by any standard very long and that he has, for breaches of the protection order since 2005, been fined, sentenced to community work and to intensive supervision and, most frequently, to sentences of imprisonment, the last two of which, though associated with other offending, have been for nine months and one year respectively.
[10] At the date of sentence Mr Toko was still completing his sentence for the unrelated offending. He was scheduled for release on 18 May 2012. Then, almost immediately I understand, he was remanded in custody in respect of these present offences and the sentence under appeal was imposed.
Sentencing remarks
[11] On sentence Judge de Ridder considered, and hardly surprisingly, that these most recent offences called for a sentence that deterred and denounced Mr Toko's breaches and protected his former partner. The Judge said this:
... I have formed the view that you have determined up until now at least not to abide by your obligations with regard to this protection order and you will continue to offend if you feel so inclined. I have considerable concern about your ability to comply with your obligations, as I have said, given your age now and given your past history. Though it may well be that I am treating you unfairly in that regard. You may finally have seen the light but most clearly if you have not and you don't leave your former partner alone then, regrettably, you are going to set yourself up for simply longer and longer terms of imprisonment.
Your former partner is entitled to the protection that the order is designed to give her. When the offending is described as being at somewhat lower level,
which I do accept in isolation, one only has to read the short victim impact statement to see the effect that your continued behaviour is having on her and has had on her. She has had enough and she wants shot of you and your continued pestering of her. ...
[12] As to the uplift he imposed, that under appeal, the Judge simply said that Mr Toko's 12 convictions preceding this offending since 2005 called for 'a full uplift of one year ... to mark the seriousness of your continued offending'.
Previous convictions uplift
[13] The purpose an uplift serves was described in this way in R v Casey,[1] the very first decision of the Court of Appeal on the subject:[2]
[1] R v Casey [1931] NZLR 594 (CA) at 596.
[2] At 597.
The previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
The Court then set against that purpose, however, the need for the uplift to be proportionate; 'the sentence passed ought to bear some relation to the intrinsic nature of the offence and the gravity of the crime'.
[14] In the most recent case, Beckham v R,[3] the Court of Appeal again confirmed that the purpose of an uplift is to reflect, in the sentence imposed, 'a tendency to commit the particular type of offence for which the offender is convicted'. But an uplift is not to be imposed, the Court said, 'merely by reason of those previous convictions', for that could amount to punishing the prisoner twice.
[3] Beckham v R [2012] NZCA 290.
[15] In Lane v Police,[4] where there were four breaches of a protection order, aggravated by two prior breaches, as well as a history of violent offending, Lang J on appeal substituted for the offences themselves a starting point of nine months and uplifted that by one third, three months, for the earlier offending, resulting in a
sentence of 12 months imprisonment.
[4] Lane v Police HC Rotorua CRI 2010-463-332, 18 May 2010.
[16] In Keenan v Police,[5] where the sentence under appeal, 12 months imprisonment for seven breaches, was upheld, a material factor was that the appellant had 14 previous convictions.
Conclusions
[5] Keenan v Police HC Palmerston North CRI 2005-454-59, 13 December 2005.
[17] There is no issue taken on this appeal with the Judge's starting point, nor could there be. Each of Mr Toko's three offences constitutes an insidious threat to his former partner, designed to disturb and distress her. Nor can there be any that Mr Toko's 12 previous convictions called for an uplift. These three offences are merely the most recent instances in an unrelenting campaign. The question is one of proportion.
[18] In this case, the uplift, 130% in excess of the sentence proper for the offences themselves, was the primary element of the sentence imposed. That in itself, and having regard to the two cases to which I have referred, was clearly disproportionate. It renders the sentence as a whole excessive. Mr Toko's 12 previous convictions, though clearly of concern, warranted at most an uplift of six months.
[19] I therefore allow Mr Toko's appeal. I quash his sentence and re-impose it substituting a six month uplift for his previous convictions. He will be sentenced to
nine months imprisonment.
P.J. Keane J
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