Toomalatai v Police
[2023] NZHC 2935
•19 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-146
[2023] NZHC 2935
BETWEEN COREY TOOMALATAI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 October 2023 Appearances:
D J Matthews and S E M Payne for Appellant G E R Alloway for Respondent
Judgment:
19 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 19 October 2023 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
TOOMALATAI v NEW ZEALAND POLICE [2023] NZHC 2935 [19 October 2023]
Introduction
[1] Corey Toomalatai was sentenced by Judge Couch in the District Court to three years and four months’ imprisonment in respect of the following charges:1
(a)burglary (x2);2
(b)attempted burglary;3
(c)receiving (over $1,000);4
(d)obtaining by deception (over $1,000);5 and
(e)possession of methamphetamine.6
[2] Mr Toomalatai appeals this sentence on the basis that it involved excessive uplifts and insufficient discounts, and that the end sentence should have been one of home detention.
Facts
[3] On 14 August 2022, Mr Toomalatai drove his van to a property which stored containers and vehicles. He broke the lock on the gate to access the property before proceeding to remove catalytic converters from four vehicles and copper materials. On 17 August, he returned and stole two more converters. He returned again on 19 August but fled when spotted by the owner.
[4] On 5 and 21 October, Mr Toomalatai sold a stolen outboard motor and chainsaw respectively to second-hand dealers.
1 New Zealand Police v Toomalatai [2023] NZDC 16241.
2 Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment.
3 Crimes Act, ss 231 and 72; maximum penalty 5 years’ imprisonment.
4 Crimes Act, s 246; maximum penalty 7 years’ imprisonment.
5 Crimes Act, s 240; maximum penalty 7 years’ imprisonment.
6 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty 6 months’ imprisonment and/or a fine not exceeding $1,000.
[5] On 24 October, Mr Toomalatai broke into a shed on a residential property and took four power tools and an air rifle. He sold the tools the following day. On 25 October, he went to the same property and took a guitar and trailer. The guitar was sold to a second-hand dealer the next day.
[6] On 2 November, Mr Toomalatai listed a generator on Facebook Marketplace. He purported to sell it for $1,100 to the victim who transferred that amount to a bank account nominated by Mr Toomalatai. He then gave the victim a false address to pick up the generator and then did not engage in further contact with the victim.
[7] On 5 November, he broke the window of a sleepout in an attempt to get inside but was disturbed by a dog and left.
[8] On 12 November, jewellery was stolen from a Christchurch property. Mr Toomalatai pawned two of the items stolen in that burglary on 16 November.
[9] On 17 November, Mr Toomalatai was located by police. In the van he was in, police found a methamphetamine pipe and three bags containing a total of 0.5 of a gram of methamphetamine.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.7 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
7 Criminal Procedure Act 2011, s 250(2) and (3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
District Court decision
[11] Judge Couch took the burglaries as the lead offending. He noted as aggravating features, the forced entry, the targeting of dwellings for some of the offending, the repetition which indicated premeditation and increased emotional harm, and the substantial amount of property stolen. A starting point of three years and six months was adopted.
[12] On the receiving charge, the Judge took a starting point of 10 months’ imprisonment having regard to the fact that the goods were recovered.
[13] The Judge viewed the obtaining by deception as premeditated and cynical offending and applied an eight-month starting point.
[14]An uplift of one month was applied for the possession of methamphetamine.
[15] The global starting point was reduced to 52 months’ imprisonment on a totality basis.
[16] The Judge identified as personally aggravating factors, the fact that most of the offending had occurred while on bail, Mr Toomalatai’s relevant previous convictions, and unreasonable delay.
[17] In terms of unreasonable delay, the Judge explained that Mr Toomalatai sought a sentence indication on 15 February 2023. This was set down for 19 May. On 19 May, Mr Toomalatai was said to have no longer wanted a sentence indication which delayed proceedings again until sentencing. The Judge applied a five per cent uplift saying the effect of not proceeding with the sentencing indication was “to delay these proceedings by three months for no purpose”.10 A 10 per cent uplift was applied for offending while on bail and five per cent for relevant criminal history.
10 At [20].
[18] An 18 per cent discount was applied for the guilty pleas and seven per cent for remorse. The Judge applied a further 10 per cent discount to recognise Mr Toomalatai’s methamphetamine addiction and rehabilitative efforts.
[19] The sentence was reduced by four months to reflect time spent on electronically-monitored bail.
Submissions
Appellant’s submissions
[20] Mr Matthews, for Mr Toomalatai, seeks to admit a s 27 report which was not before the Judge at sentencing. Mr Toomalatai had different counsel at sentencing, and Mr Matthews says the report provides relevant information which will assist the Court in assessing appropriate credits for personal mitigating factors. He argues there is no prejudice to the Crown.
[21] Mr Matthews acknowledges the starting point adopted by the Judge was within range, although he does note it is slightly higher than that put forward by the Crown at sentencing. He submits, however, that the Judge erred in imposing a five per cent uplift for “unreasonable delay”. Mr Toomalatai appeared before Judge Hix on 19 May, ostensibly for a sentence indication. Counsel indicated further resolution discussions were likely to resolve the matter, and the sentence indication did not proceed. Counsel appearing for the police indicated he did not have authority to engage in resolution discussions, but Mr Matthews says it was indicated such discussions could be fruitful. The matter was adjourned to 1 June. At this stage the appellant pleaded guilty to seven charges, having initially been charged with 14, and an August sentencing date was allocated.
[22] Mr Matthews says the transcript from the two dates shows significant progress was made in the intervening weeks on achieving a resolution, and this resolution meant there was no need for a sentence indication. As such, there was no purposeless delay in the disposition of matters, and no uplift was warranted. To the extent that there was a delay in the entry of guilty pleas, this was reflected in the reduced discount for that.
[23] Further, he submits there should not have been an uplift for previous convictions. Mr Matthews says Mr Toomalatai has only four dishonesty convictions, one of which was a charge of theft from 2003 and three which arose from offending in 2018 and 2019 and attracted non-custodial sentences. There was no need to impose an uplift for these convictions.
[24] No issue is taken with the guilty plea and remorse discounts, but Mr Matthews says a greater credit for background factors and rehabilitative efforts was appropriate. He points to additional factors noted in the s 27 report including physical, psychological, verbal, and sexual abuse in Mr Toomalatai’s formative years and teenage use of alcohol. Mr Toomalatai’s methamphetamine addiction was significant, with a direct nexus between it and the offending, and a greater discount than 10 per cent was warranted. Furthermore, he has since made significant rehabilitative efforts as demonstrated by his engagement with, and discharge from, He Waka Tapu. In total, Mr Matthews proposes a 25 per cent discount to recognise background, addiction, and rehabilitation.
[25] Mr Matthews says his proposed changes yield an end sentence of 24 months. Having reached a short-term sentence, Mr Matthews says a sentence of home detention is appropriate. Even if the Court reached an end sentence of more than two years, Mr Matthews says it is appropriate for the Court to step back and consider what is the appropriate final outcome and whether any further calibration is necessary.11
[26] Mr Matthews submits the appellant is a man who was derailed by a serious methamphetamine addiction but has since addressed this, and imprisonment is in neither his nor society’s best interests. He notes:
(a)the extensive and productive rehabilitative efforts made by Mr Toomalatai to address the causes of the offending;
(b)the pre-sentence report recommendation of a sentence of community detention and intensive supervision;
11 Citing Martin v R [2022] NZCA 285 at [110]–[111].
(c)Mr Toomalatai had never previously been sentenced to home detention, which would have carried a significant denunciative and deterrent impact in its own right;
(d)a home detention sentence would have allowed him to continue working and pay reparations;
(e)significant remorse was shown, and the victim, at restorative justice, expressed a wish for the appellant to not go to jail;
(f)a home detention sentence would facilitate rehabilitation; and
(g)Mr Toomalatai will have served three months in custody as at the time of this appeal being heard.
Respondent’s submissions
[27] Mr Alloway submits an uplift for delay was appropriate. He says Mr Toomalatai only indicated that he did not want to proceed with the sentencing indication on 19 May 2023, the day it was scheduled. If resolution discussions were ongoing, a sentence indication on the current charges should not have been sought, or the sentence indication could still have been given with resolution discussion remaining ongoing. The Judge and prosecution had prepared for a sentence indication, and this time was wasted.
[28] Counsel argues there are seven dishonesty convictions, with four from 2018 and 2019, and that a five per cent uplift for previous convictions was available. The 10 per cent uplift for offending while on bail was also within range.
[29] As to the discount for background factors, Mr Alloway first opposes the admission of the s 27 report, citing the general principle that such reports should not be produced for the first time on appeal.12 He says the evidence is not fresh as it could have been obtained by the time of sentencing, and it is not cogent as the other
12 Carroll v R [2019] NZCA 172 at [8].
background factors do not directly go to the offending but instead contributed to the addiction which, in turn, contributed to offending. There was already evidence of addiction before the Judge, which was recognised.
[30] Mr Alloway submits the end sentence was within range and cannot be said to be manifestly excessive, which is ultimately the concern on appeal, and the appeal should therefore be dismissed.
Analysis
Delay uplift
[31] Section 9(1)(k) of the Sentencing Act provides for delays arising from the fault of the offender personally or their lawyer acting on the offender’s instructions, to be an aggravating factor at sentencing. In this case, it is not clear that Mr Toomalatai was responsible for the late decision not to proceed with the sentencing indication. However, more importantly, I accept Mr Mathews’ submissions that this did not materially delay the disposition of the charges which occurred only two weeks after the sentencing indication date. Mr Toomalatai pleaded guilty to the seven charges he was ultimately sentenced on. The decision not to proceed with the sentencing indication did not, therefore, result in any undue delay.
Previous convictions uplift
[32] In deciding whether previous convictions warrant an uplift on sentence, the Courts will consider, inter alia, the number, seriousness, and nature of the convictions, the time since the last conviction, and whether these convictions bear upon character and culpability of the offender, indicate reoffending is likely, or demonstrate the need to protect society through a deterrent sentence.13
[33] Mr Toomalatai has three convictions for receiving property (over $1,000) in 2019 and 2018 and one for shoplifting (under $500) also in 2018, for which he was sentenced to community work and supervision. He received a conviction for a charge of unlawfully getting into a motor vehicle in 2010 and was sentenced to community
13 Reedy v Police [2015] NZHC 1069 at [19].
work. There is then one theft and one shoplifting charge in 2003 and 2002 respectively, both of which involved property under $500 and received low fines. The sentences imposed for this offending indicates they were not of a grave nature. However, the 2018 and 2019 charges are an escalation from previous dishonesty offending. Though somewhat stern, I consider a five per cent uplift was available to the Judge.
Background and rehabilitation
[34] Mr Matthews seeks to adduce a s 27 report not before the District Court. As a general rule, s 27 reports are not admitted for the first time on appeal.14 Before new evidence will be admitted on appeal, it is normally required to be credible and fresh, but the overriding criteria is the interests of justice.15 There is no dispute that the report is not fresh evidence given counsel for the appellant could have obtained such a report and submitted it in evidence before sentencing.16 The real issue is whether it would materially alter the outcome of sentencing such that it should be admitted in the interests of justice.
[35] The pre-sentence report noted that Mr Toomalatai had been abusing methamphetamine for a number of years. Leading up to the offending, he was using it three times a week, and it was his overriding concern. He reported forgetting about people and family, and his focus was on finding ways to make money to buy more of the drug. The report also noted his successful rehabilitative efforts.
[36] Central to this appeal is the way in which Mr Toomalatai’s addiction was an operative cause of the offending and the ways in which he has been addressing this cause through rehabilitation. The report provides more detail and context as to his methamphetamine addiction. While it does provide information around other factors, such as abuse suffered by Mr Toomalatai, it only identified a “possible” connection with his behaviour more broadly. If it was only this, then the s 27 report is very similar to that in Salt v R, where the Court of Appeal did not admit the report.17
14 Carroll v R, above n 12 at [8].
15 Salt v R [2022] NZCA 611.
16 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] and [124]–[125].
17 Above n 15 at [30]–[32].
[37] In my view, though, what is more helpful is the extensive information provided as to Mr Toomalatai’s rehabilitative efforts. There is evidence from a close friend about Mr Toomalatai realising the need to address his addiction and having since “made a permanent change, otherwise I still wouldn’t be talking to him”. There is also evidence from his ex-partner about the positive changes he has been making, such that she felt able to let him back into their children’s lives, where he has been taking an active role. This is a factor which I consider points in favour of the report being admitted in the interests of justice. While the Judge did have some information about Mr Toomalatai’s rehabilitative efforts, I consider this report materially expands on that information, giving a compelling picture of positive rehabilitative effort. The application to admit the s 27 report is granted.
[38] I next consider whether the discount for addiction and rehabilitation was sufficient on the evidence. Mr Toomalatai’s addiction was clearly the driving force behind the offending, with the motivation being to secure funds to buy further quantities of the drug. I consider a 10 per cent reduction for this factor alone was warranted. Beyond this, Mr Toomalatai has made impressive rehabilitative efforts. He Waka Tapu reports that Mr Toomalatai has completed and engaged in multiple programmes in constructive ways. His progress is such that he is being discharged from his He Waka Tapu support worker who reports he was a pleasure to work with and was making a continued effort to improve himself. Ms Hall, a Christchurch-based social worker provided a letter as to Mr Toomalatai’s rehabilitative efforts. She has regular contact with Mr Toomalatai and records that he takes accountability for his offending and is clear in the factors of his life which led to that offending. He has adopted healthy habits, and Ms Hall was confident in his motivation to continue his rehabilitative journey. I consider a further 10 per cent discount be applied for rehabilitative efforts.
[39] The combined discounts for addiction and exceptional rehabilitative efforts is 20 per cent. Along with 25 per cent for guilty plea and remorse, the global discount is 45 per cent.
Sentencing methodology – offending while on bail
[40] In order to reach 24 months’ imprisonment Mr Matthews treated the uplift for offending while on bail as an aggravating feature of the offending, rather than an aggravating factor personal to the offender, as the District Court Judge did.
[41] Offending while on bail is a factor which is treated inconsistently (without clear explanation), sometimes as an aggravating feature of the offending and sometimes as an aggravating feature relating to the offender.18
[42] While it makes little difference to the end sentence, I consider the fact the offending occurred while Mr Toomalatai was on bail is an aggravating factor relevant to the offender in the circumstances of this case, and I calculate the end sentence accordingly
[43] To summarise, taking the various steps in sentencing and adjusting them where I consider appropriate, I reach the following result:
(a)Starting point: 52 months.
(b)Subtracting 15 per cent uplift for prior convictions and offending while on bail from the total discounts of 45 per cent results in a net discount of 30 per cent, taking the sentence to 36 months.
(c)Reduction of four months for time spent on EM bail.
(d)Result: 32 months’ imprisonment.
Home detention
[44] Even adopting those discounts, and removing the uplift for delay, Mr Toomalatai would not reach a short-term sentence. Despite Mr Toomalatai’s
18 See Tonks v New Zealand Police [2017] NZHC 880; W v New Zealand Police [2019] NZHC 2933; and Pham v R [2022] NZCA 538 at [26] for examples of cases where it was treated as aggravating the offending. See Keen v R [2014] NZCA 299; and Lavea v R [2014] NZCA 192 for examples of cases where offending while on bail or parole was treated as a personal aggravating factor.
rehabilitative prospects, I do not consider this to be a case where the Court should step back, assess the sentence, and conclude it to be incorrect and adjust it to achieve a sentence of home detention. Mr Toomalatai’s offending involved extensive dishonesty offending, and the sentence reflects the gravity of that offending
Conclusion
[45] The appeal is allowed. The sentence of three years and four months’ imprisonment is quashed, and in its place a sentence of two years and eight months is imposed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
D J Matthews, Barrister, Christchurch
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