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 RespondentJudgment:
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…
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- Case
- [2017] NZHC 809
- Decision Date
CaseChat Overview and Summary
The court concluded that the starting point of 22 months was appropriate, though at the higher end of the range. However, the uplifts for the remaining charges were inconsistent with the totality principle. The court found that an uplift of 15 months for the document charges was excessive, and that an uplift of five months for the theft and receiving charges was also too high. The uplift for breaching release conditions, failing to appear for bail, and resisting arrest was deemed appropriate. Finally, the court found that the discount for guilty pleas was appropriate, and substituted a sentence of three years and three months' imprisonment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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