TOA v NEW ZEALAND POLICE [2023] NZHC 403

TOA v NEW ZEALAND POLICE [2023] NZHC 403 [6 March 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-144[2023] NZHC 403BETWEEN BRENDON TOAAppellantAND NEW ZEALAND POLICERespondentHearing: 6 March 2023Appearances: M S Jenkins on behalf of T Braithwaite for the AppellantT W Afoa for the RespondentJudgment: 6 March 2023ORAL JUDGMENT OF PALMER JSolicitorsBraithwaite Law Ltd, RotoruaCrown Solicitor, Gordon Pilditch Solicitors, RotoruaWhat happened?[1] Mr Brendon Toa, now aged 42 and of Te Arawa descent, was charged with fivecharges of burglary and a charge of shoplifting. They each carry maximum penaltiesof 10 years' imprisonment and three months' imprisonment respectively. Theoffending involved:(a) breaking into a residential property in Christchurch on 23 January 2022,stealing jewellery, cash and a laptop worth $9,500 altogether and a carwhich was written off;(b) stealing $30 of makeup from The Warehouse in Christchurch on 24January 2022;(c) breaking into a residential property in Christchurch with two otherpeople on 29 January 2022, stealing an extensive amount of jewellery,watches and high-end handbags, and the keys to a Porsche and twoMercedes;(d) breaking into the Rotorua Sports Bar on 27 February 2022 and stealing$8,000–$10,000 in cash;(e) breaking into Central Auto Dismantlers in Rotorua on 1 March 2022and stealing the till containing $200–$400; and(f) breaking into T P Diesel in Rotorua on 25 April 2022 and stealing $400in cash, multiple keys, and tools.[2] On 29 June 2022, in the Rotorua District Court, Judge D J McDonald gave MrToa a sentencing indication. He set the starting point for the 23 January burglary at18 months' imprisonment, uplifted that for 12 months for the 29 January burglary andanother 12 months for the three Rotorua burglaries. He adjusted that for totality witha reduction of six months, giving a total starting point of three years' imprisonment.The Judge also gave a four-month uplift for Mr Toa's previous offending, includingsix convictions for burglary. The latest of these convictions was on 23 October 2020and Mr Toa received a sentence of home detention. The Judge indicated he wouldapply a 20 per cent discount for a guilty plea and stated that brought the overallsentencing indicated to two and a half years' imprisonment.[3] On 4 November 2022, Judge A J Snell sentenced Mr Toa.1 Prior to the hearing,he correctly noted that the maths in the sentencing indication was wrong and shouldhave resulted in an end sentence of two years and 8.8 months' imprisonment.2 TheJudge accepted the reasoning and rationale in the indication but adjusted the incorrectcalculation after telling counsel how he proposed to proceed. The Judge also gaveMr Toa a 10 per cent discount for his personal background on the basis of a culturalreport.3 He did not believe Mr Toa was remorseful and gave no discount for remorseor rehabilitation efforts.4 He sentenced Mr Toa to two years and five months'imprisonment and recommended the Parole Board give serious consideration toresidential drug and alcohol treatment and the complex matrix of difficulties identifiedin the cultural report.5Submissions[4] Mr Jenkins, appearing on behalf of Mr Braithwaite, for Mr Toa, submits thatMr Toa agreed to the sentence indication of two years and six months, should beentitled to rely upon that, and would not have accepted a sentence indication of twoyears and 8.8 months' imprisonment. He submits the sentencing judge should havereferred the file back to the judge who gave the sentencing indication or checkedwhether Mr Toa wanted to withdraw his acceptance of the indication. Mr Toa hasindicated that he does not wish to withdraw his acceptance of the indication. MrJenkins submits it is not clear that the Judge intended the methodology rather than theend sentence which, by analogy, is the focus of the Court on appeal. He also submitsthe Judge should have applied a 15 to 20 per cent discount for the obvious link betweenMr Toa's deprivation, drug use, and offending. He submits the Judge should haveapplied a discount of five to 10 per cent for remorse and efforts at rehabilitation. Just1 Police v Toa [2022] NZDC 21963.2 At [2].3 At [15].4 At [11].5 At [16].because Mr Toa committed more offending does not mean he is not remorseful. Hepoints to Mr Toa's lengthy letter of remorse, courses he completed in custody, andwillingness to participate in restorative justice.[5] Ms Afoa, for the Police, agrees that Mr Toa should have been given theopportunity to withdraw his guilty plea because he expected it to be 2.8 months lowerthan it was. If he does not vacate his plea, as he has indicated he would not, Ms Afoasubmits the sentence imposed was within the available range. The Policeacknowledges the difficulties Mr Toa faced in growing up. But given his recidivism,the Police submits a 10 per cent discount was adequate to recognise Mr Toa'sbackground. She also submits the Judge was correct not to give a discount for remorseand rehabilitation.Should the appeal be allowed?[6] Under s 250 of the Criminal Procedure Act 2011 (the Act), the Court mustallow the sentence appeal if satisfied there is a material error in the sentence and adifferent sentence should be imposed. The focus is on whether the end sentence iswithin the available range.6 The Court will only intervene and substitute its own viewsif the sentence being appealed is "manifestly excessive".7[7] Section 115 of the Act provides, relevantly:115 Plea of guilty may be withdrawn by leave of court(1) A plea of guilty may, by leave of the court, be withdrawn at any timebefore the defendant has been sentenced or otherwise dealt with.(2) The court must grant leave to a defendant to withdraw a plea of guiltyreferred to in section 116(1) if—(b) the court, presided over by a judicial officer other than the onethat gave the relevant sentence indication, indicates that itproposes to impose a sentence of a different type or types, orof the same type or types but a greater quantum, than thatspecified in the sentence indication.6 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].[8] In Taylor v R, the Court of Appeal stated:8 where there is a significant disparity between indication and final sentence,and where the plea has flowed from the indication, the accused person mustbe offered the opportunity to withdraw his or her plea. An expectation hasbeen created and not met, and the accused should not be held to his or her plea.[9] The sentencing judge applied the methodology of the sentencing indicationcorrectly. And he indicated that Mr Toa's counsel, Mr Braithwaite, had approved himadopting the reasoning and rationale of the indication. But Mr Toa had accepted, andexpected, an appreciably lower indication. The effect of s 115 is that he must be ableto reconsider whether he wishes to plead guilty on the basis of the accurate indication,quash the convictions, and take his chances at a trial and with another sentencing, ornot. Mr Toa has indicated he does not wish to vacate his plea.[10] In terms of the other grounds of appeal, I do not consider they warrant anychange in sentence:(a) The sentencing judge corrected the arithmetical error correctly. Heapplied the reasoning and rationale of the sentencing indication, withwhich counsel agreed.9 There was no error in the reasoning andrationale and its outcome was within the range available to the Judge.The calculation of the result was in error. But Mr Toa does not wish tovacate his plea on the basis of the corrected indication. I do notconsider the error in the calculation is a reason to change the sentence.(b) The cultural report for Mr Toa makes for sad reading. Hanging out withhis cousins and then the Mongrel Mob got him into drinking and drugsat a young age, though he never joined the gang. He has children. Therecent death of Nanny Pa, who raised him, threw him back to a previouspath of substance abuse and offending. Odyssey House has denied himadmission due to a sexual assault conviction. But the sentencing judgetook the cultural report into account. Given the discounts applied in8 Taylor v R [2013] NZCA 55 at [18], citing R v Gemmell [2000] 1 NZLR 695 (CA).9 Police v Toa, above n 1, at [3].other cases such as Berkland v R,10 I do not consider the Judge erred inassessing the effect on culpability as justifying a discount of 10 percent. That was within the range available.(c) Neither do I consider the Judge erred in not providing a discount forremorse. Mr Toa certainly wrote a letter expressing his remorse and hecompleted courses in prison. But his remorse appears to be for himself,not his victims. There is not much that is tangible that he can point toon appeal. And it stands in contrast to the repetitive nature of hisoffending over some months which commenced soon after his post-release conditions ended for previous offending. Given the repetitivenature of his offending, his rehabilitative steps would need to have gonefurther to attract a discount on appeal.[11] Overall, the sentence imposed was within the range available to the Judge. Itis not manifestly excessive. A different sentence should not be imposed.Result[12] I dismiss the appeal.Palmer J10 Berkland v R [2022] NZSC 143 at [138] and [140].