Toman v Police

[2025] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-24

[2025] NZHC 2254

BETWEEN

ISZIC IHAKA TOMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 July 2025

Appearances:

C J Nicholls for Appellant

A A Cox and V E Squires for Respondent

Judgment:

11 August 2025

JUDGMENT OF McQUEEN J

[1]    Mr Toman was sentenced on 9 May 2025 at the Hutt Valley District Court, following the entry of guilty pleas, in relation to the following eight charges:1

(a)burglary;2

(b)dishonestly entering a vehicle;3

(c)possessing a Class A controlled drug, namely methamphetamine;4

(d)possessing methamphetamine utensils;5

1      Police v Toman [2025] NZDC 10297.

2      Crimes Act 1961, s 231(1)(a): maximum penalty 10 years’ imprisonment.

3      Crimes Act 1961, s 226(2): maximum penalty two years’ imprisonment.

4      Misuse of Drugs Act 1975, s 7(1)(a) and subs (2): maximum penalty six months’ imprisonment or a $1,000 fine.

5      Misuse of Drugs Act 1975, s 13(1)(a) and subs (3): maximum penalty one year imprisonment or a $500 fine.

TOMAN v NEW ZEALAND POLICE [2025] NZHC 2254 [11 August 2025]

(e)theft of petrol;6

(f)careless driving;7

(g)possessing a Class C controlled drug, namely cannabis;8 and

(h)failing, without reasonable excuse, to comply with a condition of a sentence of supervision.9

[2]    Mr Toman was sentenced to 17 months’ imprisonment. Leave was reserved for Mr Toman to apply to commute his sentence to home detention under s 80I of the Sentencing Act 2002. He now appeals against the sentence on the basis it is manifestly excessive because the starting point for the burglary was too high. Mr Toman says that, in the absence of a suitable address for an electronic monitoring (EM) sentence, community work and supervision was the appropriate sentence.

[3]    The Crown opposes the appeal, submitting that the starting point for the burglary charge was within range and the end sentence is not manifestly excessive. The Crown accepts that an EM sentence would have been the optimal outcome. However, where there is no suitable EM address, and a community-based sentence would not meet the purposes and principles of sentencing, a short-term sentence of imprisonment was appropriate.

[4]For the reasons that follow, the appeal is dismissed.

The offending

Petrol theft

[5]    On 27 March 2024, Mr Toman drove a vehicle to a petrol station in Lower Hutt and put $90.39 worth of petrol into the vehicle and left the service station without paying.

6      Crimes Act 1961, ss 219 and 223(d): maximum penalty three months’ imprisonment.

7      Land Transport Act 1998, s 37(1): maximum penalty $3,000 fine.

8      Misuse of Drugs Act 1975, s 7(1)(a) and subs (2): maximum penalty three months’ imprisonment or a $500 fine.

9      Sentencing Act 2002, s 70(a): maximum penalty three months’ imprisonment or a $1,000 fine.

Dishonestly entering a vehicle

[6]    In the early hours of 22 March 2024, an unknown offender broke into a car dealership in Lower Hutt and stole keys to a Mazda Demio worth $8,990. The offender entered the vehicle and attempted to leave the car yard in the car but crashed the vehicle and left it stuck. The offender took the keys.

[7]    Between 10 and 13 March 2024, an offender broke into the same car dealership and took the Mazda Demio with the previously stolen keys.10

[8]    On 13 April 2024, Mr Toman drove the Mazda Demio on the Wingate overbridge in Lower Hutt. When pursued by Police, he abandoned the vehicle and fled on foot leaving his wallet, including his driver’s licence and other personal identifying cards in the glovebox.

Careless driving

[9]    On 5 April 2024, Mr Toman drove a vehicle north on Wainuiomata Road, Lower Hutt, displaying false licence plates, with different plates on the front and rear.

[10]   The speed limit for that stretch of road was 50 km/h. Mr Toman accelerated to a dangerous speed in excess of 100 km/h, with no sound justification for doing so. He then continued to drive at excess speed and made a series of turns without indicating, while crossing over the centreline onto the wrong side of the road.

Possessing methamphetamine and utensils, and possession of cannabis

[11]   On 18 September 2024, Police conducted a search of a vehicle stopped on Wainuiomata Road. Police located a black bum bag behind Mr Toman’s seat that contained approximately 0.08 grams of methamphetamine and 1 gram of cannabis.

[12]   During a search of Mr Toman’s person, Police located a methamphetamine pipe in his left pant leg.

10 The Police summary of facts refers to this offending taking place between 10 and 13 March 2024 but it seems likely this is an error and should refer to 10 and 13 April 2024. The relevant charge notice also refers to 13 April 2024.

Burglary

[13]   On 12 October 2024, Mr Toman and unknown associates went to the victim’s address in Wainuiomata in Lower Hutt. The victim was not home, and the house was secure. Mr Toman and his associates entered the house by prying open a window with a chisel, causing the window to break. Once inside, they stole the victim’s 65-inch TV, valued at $2,200.

Breaching sentence of supervision

[14]   On 25 November 2024, Mr Toman was sentenced to nine months’ supervision following his conviction in the Hutt Valley District Court of assaulting a child (manually). Mr Toman signed his induction paperwork for the terms and conditions of his sentence on 27 November 2024, including the requirement to report to a Probation Officer as directed.

[15]   On 21 January 2025, Mr Toman was instructed to report in on 22 January. On that day, Mr Toman was instructed to report on 29 January 2025, and he signed a written instruction acknowledging his understanding of this obligation. On 29 January 2025, Mr Toman failed to report as directed without reasonable excuse. Mr Toman was provided with a written warning on 19 February 2025 and instructed to report on 24 February. He again failed to report as directed without reasonable excuse.

Decision under appeal

[16]   The District Court Judge set out the charges as alleged in the summaries of fact.

[17]   The Judge then recorded that research shows the concerning factor about burglary is not just what is taken but that it is a violation of someone’s home. Therefore, relying on Court of Appeal authority, the Judge said that Arahanga v R observed that a normal starting range for burglary is between one and a half to two and a half years’ imprisonment (even where there are no other factors which make it

particularly serious).11 Further, the case of Gorgus v R endorsed the range in Arahanga

and R v Columbus as to the starting point for burglary.12

[18]   The Judge noted several matters. In relation to the unlawfully getting into a vehicle charge, the Judge highlighted that Mr Toman could have been charged with receiving that vehicle, but he was not. The Judge also commented on Mr Toman’s short list of previous convictions. Of particular importance to  the Judge  was that  Mr Toman, on an assault charge in 2020, was sentenced on 25 November 2024 to a sentence of supervision. However, one of the charges Mr Toman currently faces is a breach of that sentence of supervision. In addition, on 5 March 2025 Mr Toman appeared for sentence but that was adjourned to allow him to obtain an address for EM purposes, meaning Mr Toman was given the opportunity as recently as two months ago to find an address to canvass any EM sentencing options.

[19]   On that basis, the Judge noted that the Provisional Advice to Courts (PAC) report did not include an address for EM sentencing options, and in the circumstances the Judge was not prepared to adjourn the sentencing for such an address to be obtained. The Judge, however, reserved Mr Toman leave under s 80I of the Sentencing Act where an address did become available and is suitable then the matter could be brought back to the District Court and the sentence of imprisonment which was to be imposed could be cancelled and substituted with a sentence of home detention.

[20]   The Judge then adopted a starting point of 20 months’ imprisonment for the burglary, noting that is the lower end of the Arahanga range and that it could be higher. The aggravating factors of the burglary were that it involved:

(a)burglary by night;

(b)more than one offender;

(c)a high risk if there was an encounter with an innocent homeowner; and

11     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

12     Gorgus v R [2016] NZCA 508; and R v Columbus [2008] NZCA 192.

(d)it occurred when Mr Toman was subject to supervision and while he was on bail.

[21]   The sentence was uplifted by one month for the petrol theft, two months for unlawfully getting into the stolen vehicle and driving it carelessly, and a further two months for possessing a methamphetamine pipe and methamphetamine. No uplift was given for the possession of cannabis, nor the breach of supervision. The Judge reached 25 months’ imprisonment.

[22]   As to personal factors, the Judge gave a credit of 20 per cent for an early guilty plea and three months for a likely drug addiction (although the Judge recorded no information was provided in that respect). The Judge imposed a concurrent sentence of 17 months’ imprisonment with standard and special release conditions for six months after the sentence  expiry  date,13  and  as  mentioned,  reserved  leave  for  Mr Toman to apply to commute his sentence to home detention under s 80I of the Sentencing Act. The Judge also remitted Mr Toman’s fines, acknowledging he had no ability to pay them.

Approach on appeal against sentence

[23]   Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.14 The focus is on the final sentence reached, rather than the process by which it is reached.15

[24]   The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Although s 250 does not use the expression “manifestly excessive”, it is  a principle that is  well-established in  the Court’s approach to determining the extent of the error in sentencing appeals.16

13 Special conditions included attending and completing any appropriate Tikanga programme and alcohol and drug programme, as well as parenting, counselling or other courses directed by the probation officer.

14 Section 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
15 Ripia v R [2011] NZCA 101 at [15].

16 Tutakangahau v R, above n 14, at [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]– [140].

Discussion

[25]   Both counsel accept that the burglary charge is the lead offence and that there is no tariff case. This is so because the range of circumstances in which the offence can be committed is so varied.17

[26]   Mr Nicholls, for Mr Toman, adopts the approach in Senior v Police to submit that as Mr Toman was a first-time burglar, there is some flexibility in determining the sentence that should be imposed.18 The absence of previous convictions for burglary is a mitigating factor of the offending such that the starting point should be reduced. Mr Toman should have received a sentence of community work and supervision rather than imprisonment. Mr Nicholls says that this would have been the least restrictive outcome and would promote his rehabilitation.

[27]   In Senior, a full bench of this Court concluded that there were three categories appropriate for applying tariff sentencing levels for burglary: the first time burglar, recidivist burglary and the spree burglar. The Court also identified a list of features that can be regarded as aggravating the offence of burglary. The Court said that in the case of a first-time burglar, and depending on their background and the existence of aggravating and mitigating factors, “a prison sentence may be imposed although frequently this is not the case”.19

[28]   Ms Cox, for the Crown, submits there has been a shift away from the Senior sentencing approach for burglary to one that follows the general approach to sentencing set out in R v Taueki.20 In addition, Ms Cox says that in R v Tairi, the Judge noted that Senior is not viewed as “a reliable guide for starting points”.21 Further, the Court in Hetariki v Police held that the Taueki approach is preferred as it is more consistent with the current approach to determining a sentence and “avoids the risk of double counting previous offending”.22 Ms Cox submits that following Mr Toman’s suggested approach to sentencing would lead to double-counting mitigating factors

17     Arahanga v R, above n 11, at [78].

18     Senior v Police (2000) 18 CRNZ 340 (HC).

19 At [25].

20     R v Taueki [2005] 3 NZLR 372 (CA).

21     Tairi v Police [2015] NZHC 187 at [39] citing Rangi v Police [2013] NZHC 465 at [5].

22     Hetariki v Police [2015] NZHC 2461 at [12].

and would set an inappropriate precedent. In any event, the Judge was aware of and considered Mr Toman’s short list of previous convictions.

[29]   The Crown’s position is that the 20 months starting point for the burglary charge was within range, relying on two cases to make this point, Proctor v Police and Hotene v Police.23 Ms Cox submits that Mr Toman’s offending is more serious than both cases given the offending took place at night. Hotene is otherwise factually analogous to the current offending and resulted in the defendant receiving a starting point of 18 months’ imprisonment.

[30]   In Hotene, the Court reached a starting point of 18 months’ imprisonment for a burglary which involved the appellant and two associates entering a residence during the day when the occupants were away and taking a television set, other electronic items and cash valued at around $3,000. Although there was more property stolen from the residence than in the current burglary (where only a television was taken) the current burglary can be seen as more serious given it took place at night and it occurred while Mr Toman was subject to a sentence of supervision and on bail. Therefore, viewed in this way, the 20 months’ starting point adopted by the Judge for Mr Toman’s burglary charge is within range.

[31]   I consider it was open to the Judge to impose an uplift to the starting point for the fact that Mr Toman was on bail when the burglary offending occurred. However, the Judge did not impose such an uplift. Rather, it appears the Judge took this fact into account as an aggravating factor when calculating the starting point. This reinforces that the starting point was well within range for the burglary offence.

[32]   I acknowledge Mr Nicholls’ point that Mr Toman is a first-time burglar with a limited conviction history. However, I consider the usual approach is to impose a separate uplift for previous burglary offending, which is frequently seen in recidivist burglars, rather than imposing a lower starting point for first-time burglary offenders.24 In addition, the Judge was aware of and expressly noted Mr Toman’s short history of convictions.

23     Hotene v Police [2014] NZHC 2081; and Proctor v Police [2018] NZHC 763.

24     See for example, Hotene v Police, above n 23, at [31]; and Tairi v Police, above n 21, at [55]–[56].

[33]   I understand the rest of the sentence imposed by the Judge is not disputed on appeal. Namely, from the starting point of 20 months’ imprisonment for the burglary offence, the sentence was uplifted by one month for the petrol theft, two months for unlawfully getting into the stolen vehicle and driving it carelessly, and a further two months for possessing a methamphetamine pipe and methamphetamine. Nor is it disputed that there was no uplift for the possession of cannabis or the breach of supervision. The guilty plea credit for Mr Toman of 20 per cent is also appropriate. In my view, the additional three months credit for a likely drug addiction was generous given there was no information about any such addiction. A concurrent sentence of 17 months’ imprisonment was within range.

[34]   For completeness, I note that there is no dispute on appeal that the Judge should have adjourned the sentencing to allow for inquiries as to an address for EM purposes to be made. While Mr Nicholls says he sought an adjournment of sentencing as a stable address had become available for Mr Toman, he also accepts that this is answered by the leave reserved by the Judge for Mr Toman to apply to commute his sentence to home detention under s 80I of the Sentencing Act. I also note that sentencing had earlier been adjourned for the purpose of Mr Toman obtaining an EM address.

[35]   As pointed out by Ms Cox, the focus is on the end sentence rather than the process adopted to reach the end sentence.25 The Crown says that there was no material error such that a different sentence should have been imposed. In the circumstances the Judge was faced with either moving down the sentencing hierarchy, or doing as he did: imposing a short-term sentence of imprisonment with leave to apply for it to be commuted to home detention if an address became available.

[36]   Mr Nicholls position is that given the sentence was short-term, being under two years’ imprisonment, and that Mr Toman had not been to prison before, the Judge should have imposed the sentence as recommended in the PAC report.

[37]   The PAC report dated 29 April 2025 recommended the sentence be one of supervision and community work. The report writer noted that Mr Toman’s ability to comply with and engage in community-based sentences remains untested due to his

25     Ripia v R, above n 15, at [15].

limited criminal history. However, the report writer identified that drug use was a contributing factor to the offending, and the cause of Mr Toman breaching his sentence of supervision, and that if he returned to the same lifestyle then his risk of reoffending was high. The combination of the two aspects of the sentence recommended were to address Mr Toman’s offending-related factors through engagement with relevant programmes while providing a reparative sentence to acknowledge the seriousness of his offending.

[38]   Ms Cox submits that the Judge clearly thought it was relevant that Mr Toman was convicted and discharged for the recent breach of his sentence of supervision. Therefore, it was open to the Judge to consider that a short-term sentence of imprisonment (with leave to apply to commute the sentence to home detention) was the least restrictive sentence available given Mr Toman’s recent non-compliance with his sentence of supervision.

[39]   The Judge considered a non-custodial sentence, namely home detention, was the appropriate sentencing outcome. By not adopting the recommended sentence in the PAC report it can be inferred that the Judge was not satisfied that the combination of supervision and  community work would be sufficient to denounce and deter     Mr Toman’s conduct. I agree with Ms Cox that this was likely because the recent non- compliance with Mr Toman’s sentence of supervision meant such a sentence would be insufficient to meet the purposes and principles of the Sentencing Act.

[40]   The sentence imposed being one of 17 months’ imprisonment, with leave to apply to convert that sentence to home detention if an address became available, was the appropriate sentence in the circumstances. Therefore, there is no material error in the sentence imposed and a different sentence should not have been imposed.

Result

[41]The appeal is dismissed.

McQueen J

Solicitors:

C Nicholls, Lower Hutt for Appellant Crown Solicitor, Wellington for Respondent