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…

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.

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Details

Case: [2017] NZHC 809
Decision Date: 26 April 2017

CaseChat Overview and Summary

Toluono appealed against his sentence of three years and nine months' imprisonment, which was imposed on 27 charges including burglary, dishonestly using a document, and resisting arrest. The appeal focused on the starting point adopted for the burglary, the uplifts for other charges, and the failure to consider mitigating factors. The court noted that the starting point of 22 months was at the top of the range, but an uplift for offending while on bail was warranted. The court found the uplifts for the remaining charges inconsistent with the totality principle. Specifically, the uplift for the document charges and theft charges were excessive, as was the uplift for breaching release conditions, failing to appear for bail, and resisting arrest. The court found the discount for guilty pleas to be appropriate. Consequently, the court allowed the appeal and substituted a sentence of three years and three months' imprisonment.

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