Toluono v Police

[2017] NZHC 809

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000055 [2017] NZHC 809

BETWEEN

FAAPINE TOLUONO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 April 2017
Counsel:	NC Wintour on instructions for GD Packer for Appellant LJ Fraser for Respondent
Judgment:	26 April 2017

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

NC Wintour, Auckland.

GD Packer, Auckland. Meredith Connell, Auckland.

TOLUONO v POLICE [2017] NZHC 809 [26 April 2017]

The appeal

[1]      This is a sentence appeal against a term of three years and nine months’ imprisonment in relation to 27 charges, the most serious of which is burglary.1   The appellant contends Judge Collins adopted an excessive starting point for that offending, failed to have adequate regard to the totality principle when uplifting for additional offending, and failed to properly consider mitigating features.

The offending

[2]      Mr Toluono was sentenced on: (a)       One charge of burglary;

(b)      One charge of being unlawfully in an enclosed yard; (c)         15 charges of dishonestly using a document;

(d)      One charge of receiving;

(e)       Three charges of breaching Court release conditions; (f)        One charge of failing to answer District Court bail; (g)      Four theft charges; and

(h)      One charge of resisting Police.

[3]      At approximately 11.30 am on 21 June 2016, Mr Toluono and an associate kicked  open  the  front  door of  a home  in  Blockhouse  Bay.   They searched  for valuable items.  They took cash and jewellery worth $1,250.  The pair then went to another home.  After searching a shed at the rear of the property, they looked under the deck of the house.  They found a set of golf clubs.  It is possible the pair were disturbed, for they left the clubs on the front lawn.   The offending was initially

charged as burglary.   It was later amended to a charge of unlawfully being in an enclosed yard.

[4]      The 15 charges of using a document involved Mr Toluono using two stolen bank cards to withdraw cash and make purchases to the value of approximately

$4,700.   The relevant dates are 22 May 2016 and 11 June 2016.   The 22 May offending was not particularly profitable.   Mr Toluono used a bank card to make purchases at two petrol stations totalling $93.  He attempted to withdraw $60 cash at a third station, but the transaction was declined.   The 11 June offending was profitable.    Using  the  bank  card  of  a  second  victim,  Mr Toluono  managed  to withdraw $4,000 in cash, buy a watch valued at $380 and purchase various items such as cigarettes.

[5]      The receiving charge was laid after Mr Toluono sold a stolen electric guitar valued at $800.2     The theft charges relate to stolen petrol.   On four occasions, Mr Toluono filled his car with petrol and drove away without paying.

[6]      The charges of breaching release conditions involved Mr Toluono failing to report to his probation officer.  The charge of breaching District Court bail was laid because Mr Toluono failed to appear for a hearing.  He appeared voluntarily a day later.

[7]      Mr  Toluono  was  arrested  on  16  June  2016.    When  the  Police  Officer attempted to handcuff him, Mr Toluono ran towards the door of the address.  He was eventually overpowered, but continued to resist.  And, he refused to place his hands behind his back.

The sentence

[8]      Judge Collins adopted a starting point of 22 months’ imprisonment for the burglary offending.   His Honour uplifted that term by two months as the burglary was committed while Mr Toluono was on bail. The Judge identified five aggravating

features: presence of two offenders, manner of entry, high risk of confrontation with the occupants, the (offenders’) search of the entire property, and related theft.

[9]      The Judge  increased  the starting point  by 15  months  for the  charges  of dishonestly using a document.  His Honour made further uplifts of five months for the offences of theft and receiving, and six months for the charges of breaching release conditions, failing to answer bail and resisting Police.   Previous burglaries resulted in another increase of six months.

[10]     The Judge allowed a discount of 11 months for Mr Toluono’s guilty pleas, hence the sentence of three years and nine months’ imprisonment.

Starting point

[11]   Mr Wintour submits the starting point should have been 20 months’ imprisonment (including the two month uplift for offending while on bail).   He characterises the offending as falling at the bottom of the range of starting points for residential burglaries—now accepted to be 18 months’ imprisonment.3      He emphasises the burglary occurred during daylight and relatively modest value of goods taken.

[12]     An 18-month starting point would not have been sufficient to reflect the seriousness of this offending.  The presence of two offenders heightened the risk of violence.4    Their entry caused damage.5    Jewellery was taken.  And, it is likely the

items had sentimental value beyond their monetary worth.6

[13]     The offending is similar to French v Police in which an offender entered a home during the day using a shovel to jemmy open a window.  He stole 12 items of jewellery estimated to have a value of $1,340.  Like the present case, the offending was  not  sophisticated.     Gendall  J  adopted  a  starting  point  of  20  months’

imprisonment.  But that case involved one offender, not two.

3      Gorgus v R [2016] NZCA 508 at [10]–[11].

4      Arahanga v R [2012] NZCA 480 at [79] citing R v Povey [2009] NZCA 362 at [15].

5      R v Nguyen CA110/01, 2 July 2001 at [17].

6      French v Police [2015] NZHC 2635 at [17].

[14]     In Gibbs v Police, Dunningham J summarised a number of broadly similar cases:7

[16]   In Rota v R the Court of Appeal allowed an appeal against a sentence of three years on the ground that it was manifestly excessive.8   In that case, the offender had four associates, a door was broken down and $4,000 worth of goods were taken and an imitation pistol was found in the vehicle along with masking tape (although there was no evidence that Mr Rota knew of their presence). The sentencing Judge took a starting point of 30 months imprisonment. However, the Court of Appeal considered that an appropriate starting point was 20 months.

…

[18]   In R v Povey the same issue arises.9 The Court of Appeal held that the seriousness of the offending in that case was accentuated by there being entry by night into a woman’s apartment, the presence of two offenders, the element of premeditation evidenced by gloves and a scarf for concealment, and the carrying of a spear gun which injected a very real risk of injury to the  occupant. The  sentencing  Judge  took  a  starting  point  of  24  months imprisonment which was uplifted by a further 12 months to reflect the offender’s 22 previous convictions for burglary. Although the starting point and uplift were ultimately upheld, there was no suggestion by the Court of Appeal that the sentence was a particularly lenient one given the circumstances.

[19]   In Mita v R, the offender was involved in two burglaries with property of more than $5,000 being taken in one of the burglaries.10 There was little taken in the second burglary, although there had been an attempt to remove a flat screen television from the wall. The Court of Appeal considered that, even having regard to the offender’s previous dishonesty offences, a starting point of 24 months was too high for the two incidents. The Court held that a starting point of no more than 18 months’ imprisonment could be justified.

[20]   Tairi v Police was a High Court appeal to Duffy J.11  The burglary element  of  the  offending  consisted  of  the  offender  gaining  entry  to  a dwelling house by breaking a window and taking a television valued at $370. After a thorough analysis of the case law Duffy J determined that an appropriate starting point was between 12 to 18 months. She went on to find that the 16 month starting point taken by the sentencing Judge was appropriate. The offender’s 22 previous burglary convictions warranted an uplift of only four months, however, 21 of those occurred during a three month spree.

[21]   Finally, R v Columbus is a Court of Appeal authority, predating the Arahanga. The offender broke into a garage of a residential property through a vehicle access door.12  Damage of $672 was caused. A mountain bike,

7      Gibbs v Police [2015] NZHC 2460.

8      Rota v R [2012] NZCA 49.

9      R v Povey [2009] NZCA 362.

10     Mita v R [2012] NZCA 137.

11     Tairi v Police [2015] NZHC 187.

12     R v Columbus [2008] NZCA 192.

gardening tools and a tool box were stolen. The Court of Appeal held that the circumstances of the burglary themselves did not justify a starting point of more than one year. The Court held that an uplift was appropriate to reflect the offender’s criminal history which comprised 89 previous convictions, 13 of which were for burglary and another 34 property related offences. This justified an increase of 12 months.

[15]     Rota, one of the cases above, involved similar but more serious offending than the instant case; a door was broken but there were four burglars and the value of the goods taken was higher. A starting point of 20 months was adopted in that case.

[16]     These cases suggest the Judge’s 22 month starting point was at the top of the available range, but not beyond it.  And, an uplift was required to reflect the fact of offending on bail.

Uplifts

[17]     Mr Wintour contends the appropriate uplift for the balance of the offending should have been six or eight months.  That is significantly less than the combined increase of 26 months imposed by the Judge.

[18]     Judge Collins uplifted the starting point by 15 months for the dishonest use of document charges.  It is useful to consider what the starting point would have been if this offending had occurred in isolation.

[19]     In Rako v R the defendant was convicted of 11 charges of using a bank card to  obtain  a total  of $1,800.13      Mr Rako  had  targeted  a  young tourist  from  the United States who was travelling alone.   He befriended her with the intention of stealing from her.   The Court of Appeal  upheld a starting point of 18 months. However, the Court considered that starting point to lie at the top of the available range. The Court conducted the following survey:

[9]     Mr Matthews also referred us to a number of High Court authorities in support of his submission that the starting point ought to have been no higher than 12 months’ imprisonment. However, there is no tariff or guideline case for this type of offending because it can occur in such a wide range of circumstances. For this reason, there is only limited utility in examining other sentencing decisions to determine the appropriate outcome in a given case. Nevertheless, as can be seen from the examples listed below, a starting

13     Rako v R [2015] NZCA 463.

point in a range from 12 to 18 months’ imprisonment has been applied where credit or debit cards are unlawfully used on multiple occasions resulting in losses of the order of $2,000 to $6,000:

(a)   In Keenan v Police, Fogarty J adopted a starting point of 12 months’ imprisonment for two charges of fraudulently using a credit card and a cashflow card in 31 transactions involving a total of approximately $4,700.  He observed that sentences of 18 months’ imprisonment or more would be appropriate where a significant amount was stolen or the offender has at least one previous conviction.

(b)  In Walsh v Police, Woodhouse J adopted a starting point of 12 months’ imprisonment for various fraud offences including four of dishonestly using an Eftpos card over a seven day period to make cash withdrawals totalling $2,050.

(c) In Edwards v Police, Heath J considered that 18 months’ imprisonment would be an appropriate starting point where the offender unlawfully presented cheques on 10 separate occasions over  a  one  month  period  to  the  total  value  of  approximately

$6,000.

(d)  In  Tiopira  v  Police,  after  reviewing  earlier  decisions,  Lang J observed that a starting point of 12 to 18 months’ imprisonment could be expected in cases where an offender has made use of multiple stolen credit cards or cheques resulting in losses of the order of $2,000 to $3,000. In that case, the offender obtained money and goods to the value of approximately $11,600 in 33 transactions over a 14 day period using several stolen credit and Eftpos cards. A starting point of 30 months’ imprisonment was upheld to reflect the totality of this offending.

[10]   In  the  first  three  of  these  decisions,  the  Judges  would  have  been entitled to adopt higher starting points. Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant. In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.

[20]   These authorities suggest a starting point of approximately 18 months’ imprisonment, or perhaps a little more, would have been adopted for the document offending had it stood alone.

[21]     The totality principle operates to prevent grossly disproportionate sentences. Contrary to popular misconception, the principle does not permit a defendant to

commit additional crimes without punishment.14    But it does conventionally entail some reduction of the starting point that would have been adopted had the offending stood alone.   The level of reduction depends on circumstance.   There is no prescription.

[22]     Given this offending would have attracted an 18 month starting point (or as observed, perhaps a little more), an uplift of 15 months sits uncomfortably with the proper application of the totality principle.  Not more than 10 months was required.

[23]     The Judge further uplifted the sentence by five months for the four theft charges and receiving charge.  If this offending stood alone, a sentence of that order would be likely.   So, again, this uplift is difficult to reconcile with the totality principle. An uplift of not more than three months was warranted.

[24]     The Judge then increased the starting point by six months for the charge of failing to appear, three charges of breaching release conditions and one charge of resisting  arrest.    While stern,  I am  not  persuaded  the  Judge  here  exceeded  the exercise of available discretion.  This offending was different in kind.  And, it was indicative of a cavalier disregard for authority.

[25]     Mr Wintour does not take issue with the six month uplift for Mr Toluono’s

previous convictions.  Nor could he.

Mitigation

[26]     This leaves the issue of discount.  Mr Wintour submits the Judge did not take into  account  alleged  remorse  expressed  by  Mr  Toluono  in  a  letter  to  the District Court.  I have read the letter.  It is typical of material the Courts receive from a defendant awaiting sentence.  It was open to the Judge to remain unpersuaded of

the presence of genuine remorse.

14     The best discussion of the principle remains that of Cooke J in R v Bradley [1979] 2 NZLR 262 (CA).

[27]     Finally, the appellant submits full credit should have been given for his early guilty pleas.  Mr Toluono’s first appearance was on 3 June 2016.  He attended a case review hearing on 30 August 2016 and sought a sentence indication which was given on 14 October 2016.  He entered pleas of guilty on 16 November 2016 after a charge of burglary was reduced to a charge of unlawfully being in an enclosed yard.   I discern no error in the Judge’s approach in settling upon a discount of 20 percent.

Conclusion

[28]     The starting point adopted by the Judge was at the top of the available range but within it.  However, two uplifts were inconsistent with the totality principle.  I allow the appeal and substitute a sentence of three years and three months’ imprisonment.  I calculate that as follows:

(a)       A starting point of 24 months’ imprisonment (including the uplift for offending on bail);

(b)      An uplift of 19 months for the remainder of the offending; (c)           An uplift of six months for previous convictions; and

(d)      A discount of 20 percent for guilty pleas.

……………………………..

Downs J