Toomalatai v Police - [2023] NZHC 2935

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…

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: [2023] NZHC 2935
Decision Date: 19 October 2023

CaseChat Overview and Summary

Corey Toomalatai appeals against his sentence of three years and four months' imprisonment for multiple charges of burglary, attempted burglary, receiving stolen property, obtaining by deception, and possession of methamphetamine. The appeal focuses on the District Court's imposition of uplifts and discounts in the sentencing process. The central issues are whether the District Court correctly applied the uplifts for unreasonable delay and prior convictions, and if the discounts for background factors, addiction, and rehabilitation were adequate. The appellant argues that the delay uplift was unwarranted and that a greater discount for background and rehabilitation should have been applied. The respondent contends that the delay uplift was appropriate and that the end sentence was within the proper range.

The court finds that the delay uplift was not justified as there was no significant delay in the disposition of the charges. The court also considers that a five percent uplift for prior convictions was appropriate given the number and recency of the appellant's dishonesty convictions. Regarding the discounts, the court admits a section 27 report not previously before the District Court, finding it materially alters the outcome of sentencing in the interests of justice. The court finds that a greater discount for the appellant's methamphetamine addiction and rehabilitation efforts is warranted, totaling 20 percent. The court recalculates the sentence, applying the appropriate uplifts and discounts, and arrives at a sentence of two years and eight months' imprisonment.

The appeal is allowed, and the original sentence is quashed, replaced with a sentence of two years and eight months' imprisonment.

Orders