Toleafoa v The Queen - [2010] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND
CA713/2009
[2010] NZCA 155
BETWEENMOEAIA TOLEAFOA

Appellant

ANDTHE QUEEN

Respondent

Hearing:12 April 2010

Court:Hammond, Chisholm and Priestley JJ
Counsel:P J Kaye for the Appellant

K Raftery for the Crown

Judgment:29 April 2010 at 2.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeal
[1]        The appellant was tried in the Manukau District Court in August 2009. He faced five counts laid under s 235(c) of the Crimes Act 1961 of aggravated robbery. A sixth count was laid under s 239 of demanding money with menaces.
[2]        The jury acquitted the appellant on one of the aggravated robbery counts. He was found guilty and convicted on the other five counts.
[3]        Judge Singh presided over the trial. On 25 September 2009 the Judge sentenced the appellant to 11 years imprisonment on the four aggravated robbery convictions. On the lesser s 239 conviction the appellant was sentenced to five years imprisonment. All terms of imprisonment were to be served concurrently. The Judge refused the Crown’s request to impose a minimum period of imprisonment under s 86 of the Sentencing Act 2002.
[4]        This appeal challenges the 11 year sentence on the grounds that it is manifestly excessive.
Background
[5]        Over a 17 month period, between September 2006 and May 2008, the appellant robbed (or in respect of the s 239 charge attempted to rob) banks and bars in various Auckland suburbs. His motive appears to have been to obtain money to resolve problems flowing from a gambling addiction.
[6]        His modus operandi was to disguise his head and facial features in a variety of ways, using scarves, turbans, sunglasses, false beard and moustache, beanies, and other items of apparel. When he entered the target premises he would approach an employee and demand money in a menacing fashion. In respect of the s 239 count he used a note. In respect of the other counts he presented or displayed a pistol, shotgun, or knife. One business, which the appellant robbed twice in December 2006 and October 2007, was a TAB agency. Two of the premises were banks. Another target was a bar. The amount of cash robbed was between $10,000 and $15,000.
[7]        When sentenced the appellant was 28 years old. His three previous convictions were of no relevance to the sentencing. The appellant emigrated to New Zealand from Samoa when he was a young child. He had been employed for most of the time since he left secondary school. He and his partner of five years standing have two young children.
[8]        The appellant expressed remorse when being interviewed by the probation service. His risk of re-offending was considered to be low provided he undertook counselling to address his gambling addiction. Favourable testimonials were placed before the Judge from the appellant’s family and from members of the congregation of his church.
The sentence
[9]        Judge Singh reviewed all the relevant materials before him.…

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 Toleafoa v The Queen

Details

AGLC: Toleafoa v The Queen [2010] NZCA 155
Case: [2010] NZCA 155
Decision Date: 29 April 2010

CaseChat Overview and Summary

Moeaia Toleafoa appealed against his sentence of 11 years imprisonment for four counts of aggravated robbery and a concurrent five-year term for demanding money with menaces. The appeal was dismissed by the Court of Appeal of New Zealand, affirming the trial court's sentencing decision. The appellant's series of robberies, committed over 17 months and involving disguises and weapons, were deemed to be premeditated and highly planned, leading the trial judge to identify various aggravating factors. The appellant's remorse and the potential for rehabilitation were considered, but the court found that the sentence, while stern, did not cross the threshold of being manifestly excessive. The Court of Appeal upheld the trial judge's assessment, concluding that the sentence was within the permissible range and appropriately reflected the seriousness of the crimes.

Orders