TOOMALATAI v NEW ZEALAND POLICE [2023] NZHC 2935

TOOMALATAI v NEW ZEALAND POLICE [2023] NZHC 2935 [19 October 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-146[2023] NZHC 2935BETWEEN COREY TOOMALATAIAppellantAND NEW ZEALAND POLICERespondentHearing: 5 October 2023Appearances: D J Matthews and S E M Payne for AppellantG E R Alloway for RespondentJudgment: 19 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 19 October 2023 at 2 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Corey Toomalatai was sentenced by Judge Couch in the District Court tothree 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 excessiveuplifts and insufficient discounts, and that the end sentence should have been one ofhome detention.Facts[3] On 14 August 2022, Mr Toomalatai drove his van to a property which storedcontainers and vehicles. He broke the lock on the gate to access the property beforeproceeding to remove catalytic converters from four vehicles and copper materials.On 17 August, he returned and stole two more converters. He returned again on19 August but fled when spotted by the owner.[4] On 5 and 21 October, Mr Toomalatai sold a stolen outboard motor andchainsaw 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 afine not exceeding $1,000.[5] On 24 October, Mr Toomalatai broke into a shed on a residential property andtook four power tools and an air rifle. He sold the tools the following day. On25 October, he went to the same property and took a guitar and trailer. The guitar wassold 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 bankaccount nominated by Mr Toomalatai. He then gave the victim a false address to pickup 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 insidebut 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 agram of methamphetamine.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may be allowed by this Court only if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.7As the Court of Appeal identified in Tutakangahau v R (quoting the lower court'sdecision), a "court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".8 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.97 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 aggravatingfeatures, the forced entry, the targeting of dwellings for some of the offending, therepetition which indicated premeditation and increased emotional harm, and thesubstantial amount of property stolen. A starting point of three years and six monthswas 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 cynicaloffending 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 totalitybasis.[16] The Judge identified as personally aggravating factors, the fact that most of theoffending 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 soughta sentence indication on 15 February 2023. This was set down for 19 May. On19 May, Mr Toomalatai was said to have no longer wanted a sentence indication whichdelayed proceedings again until sentencing. The Judge applied a five per cent upliftsaying the effect of not proceeding with the sentencing indication was "to delay theseproceedings by three months for no purpose".10 A 10 per cent uplift was applied foroffending 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 forremorse. The Judge applied a further 10 per cent discount to recogniseMr Toomalatai's methamphetamine addiction and rehabilitative efforts.[19] The sentence was reduced by four months to reflect time spent onelectronically-monitored bail.SubmissionsAppellant's submissions[20] Mr Matthews, for Mr Toomalatai, seeks to admit a s 27 report which was notbefore the Judge at sentencing. Mr Toomalatai had different counsel at sentencing,and Mr Matthews says the report provides relevant information which will assist theCourt in assessing appropriate credits for personal mitigating factors. He argues thereis no prejudice to the Crown.[21] Mr Matthews acknowledges the starting point adopted by the Judge was withinrange, although he does note it is slightly higher than that put forward by the Crownat sentencing. He submits, however, that the Judge erred in imposing a five per centuplift for "unreasonable delay". Mr Toomalatai appeared before Judge Hix on 19 May,ostensibly for a sentence indication. Counsel indicated further resolution discussionswere likely to resolve the matter, and the sentence indication did not proceed. Counselappearing for the police indicated he did not have authority to engage in resolutiondiscussions, 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 toseven charges, having initially been charged with 14, and an August sentencing datewas allocated.[22] Mr Matthews says the transcript from the two dates shows significant progresswas made in the intervening weeks on achieving a resolution, and this resolution meantthere was no need for a sentence indication. As such, there was no purposeless delayin the disposition of matters, and no uplift was warranted. To the extent that there wasa 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 previousconvictions. 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 offendingin 2018 and 2019 and attracted non-custodial sentences. There was no need to imposean uplift for these convictions.[24] No issue is taken with the guilty plea and remorse discounts, but Mr Matthewssays 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 andteenage use of alcohol. Mr Toomalatai's methamphetamine addiction was significant,with a direct nexus between it and the offending, and a greater discount than10 per cent was warranted. Furthermore, he has since made significant rehabilitativeefforts 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 homedetention is appropriate. Even if the Court reached an end sentence of more thantwo years, Mr Matthews says it is appropriate for the Court to step back and considerwhat is the appropriate final outcome and whether any further calibration isnecessary.11[26] Mr Matthews submits the appellant is a man who was derailed by a seriousmethamphetamine addiction but has since addressed this, and imprisonment is inneither his nor society's best interests. He notes:(a) the extensive and productive rehabilitative efforts made byMr Toomalatai to address the causes of the offending;(b) the pre-sentence report recommendation of a sentence of communitydetention 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 deterrentimpact in its own right;(d) a home detention sentence would have allowed him to continueworking 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 timeof this appeal being heard.Respondent's submissions[27] Mr Alloway submits an uplift for delay was appropriate. He saysMr Toomalatai only indicated that he did not want to proceed with the sentencingindication on 19 May 2023, the day it was scheduled. If resolution discussions wereongoing, a sentence indication on the current charges should not have been sought, orthe sentence indication could still have been given with resolution discussionremaining 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 2018and 2019, and that a five per cent uplift for previous convictions was available. The10 per cent uplift for offending while on bail was also within range.[29] As to the discount for background factors, Mr Alloway first opposes theadmission of the s 27 report, citing the general principle that such reports should notbe produced for the first time on appeal.12 He says the evidence is not fresh as it couldhave been obtained by the time of sentencing, and it is not cogent as the other12 Carroll v R [2019] NZCA 172 at [8].background factors do not directly go to the offending but instead contributed to theaddiction which, in turn, contributed to offending. There was already evidence ofaddiction before the Judge, which was recognised.[30] Mr Alloway submits the end sentence was within range and cannot be said tobe manifestly excessive, which is ultimately the concern on appeal, and the appealshould therefore be dismissed.AnalysisDelay uplift[31] Section 9(1)(k) of the Sentencing Act provides for delays arising from the faultof the offender personally or their lawyer acting on the offender's instructions, to bean aggravating factor at sentencing. In this case, it is not clear that Mr Toomalatai wasresponsible for the late decision not to proceed with the sentencing indication.However, more importantly, I accept Mr Mathews' submissions that this did notmaterially delay the disposition of the charges which occurred only two weeks afterthe sentencing indication date. Mr Toomalatai pleaded guilty to the seven charges hewas ultimately sentenced on. The decision not to proceed with the sentencingindication did not, therefore, result in any undue delay.Previous convictions uplift[32] In deciding whether previous convictions warrant an uplift on sentence, theCourts will consider, inter alia, the number, seriousness, and nature of the convictions,the time since the last conviction, and whether these convictions bear upon characterand culpability of the offender, indicate reoffending is likely, or demonstrate the needto protect society through a deterrent sentence.13[33] Mr Toomalatai has three convictions for receiving property (over $1,000) in2019 and 2018 and one for shoplifting (under $500) also in 2018, for which he wassentenced to community work and supervision. He received a conviction for a chargeof unlawfully getting into a motor vehicle in 2010 and was sentenced to community13 Reedy v Police [2015] NZHC 1069 at [19].work. There is then one theft and one shoplifting charge in 2003 and 2002respectively, both of which involved property under $500 and received low fines. Thesentences imposed for this offending indicates they were not of a grave nature.However, the 2018 and 2019 charges are an escalation from previous dishonestyoffending. Though somewhat stern, I consider a five per cent uplift was available tothe Judge.Background and rehabilitation[34] Mr Matthews seeks to adduce a s 27 report not before the District Court. As ageneral rule, s 27 reports are not admitted for the first time on appeal.14 Before newevidence 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 reportis not fresh evidence given counsel for the appellant could have obtained such a reportand submitted it in evidence before sentencing.16 The real issue is whether it wouldmaterially alter the outcome of sentencing such that it should be admitted in theinterests of justice.[35] The pre-sentence report noted that Mr Toomalatai had been abusingmethamphetamine for a number of years. Leading up to the offending, he was usingit three times a week, and it was his overriding concern. He reported forgetting aboutpeople and family, and his focus was on finding ways to make money to buy more ofthe drug. The report also noted his successful rehabilitative efforts.[36] Central to this appeal is the way in which Mr Toomalatai's addiction was anoperative cause of the offending and the ways in which he has been addressing thiscause through rehabilitation. The report provides more detail and context as to hismethamphetamine addiction. While it does provide information around other factors,such as abuse suffered by Mr Toomalatai, it only identified a "possible" connectionwith his behaviour more broadly. If it was only this, then the s 27 report is very similarto that in Salt v R, where the Court of Appeal did not admit the report.1714 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 providedas to Mr Toomalatai's rehabilitative efforts. There is evidence from a close friendabout 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 alsoevidence from his ex-partner about the positive changes he has been making, such thatshe felt able to let him back into their children's lives, where he has been taking anactive role. This is a factor which I consider points in favour of the report beingadmitted in the interests of justice. While the Judge did have some information aboutMr Toomalatai's rehabilitative efforts, I consider this report materially expands on thatinformation, giving a compelling picture of positive rehabilitative effort. Theapplication to admit the s 27 report is granted.[38] I next consider whether the discount for addiction and rehabilitation wassufficient on the evidence. Mr Toomalatai's addiction was clearly the driving forcebehind the offending, with the motivation being to secure funds to buy furtherquantities of the drug. I consider a 10 per cent reduction for this factor alone waswarranted. Beyond this, Mr Toomalatai has made impressive rehabilitative efforts.He Waka Tapu reports that Mr Toomalatai has completed and engaged in multipleprogrammes in constructive ways. His progress is such that he is being dischargedfrom his He Waka Tapu support worker who reports he was a pleasure to work withand was making a continued effort to improve himself. Ms Hall, a Christchurch-basedsocial worker provided a letter as to Mr Toomalatai's rehabilitative efforts. She hasregular contact with Mr Toomalatai and records that he takes accountability for hisoffending and is clear in the factors of his life which led to that offending. He hasadopted healthy habits, and Ms Hall was confident in his motivation to continue hisrehabilitative journey. I consider a further 10 per cent discount be applied forrehabilitative efforts.[39] The combined discounts for addiction and exceptional rehabilitative efforts is20 per cent. Along with 25 per cent for guilty plea and remorse, the global discount is45 per cent.Sentencing methodology – offending while on bail[40] In order to reach 24 months' imprisonment Mr Matthews treated the uplift foroffending while on bail as an aggravating feature of the offending, rather than anaggravating factor personal to the offender, as the District Court Judge did.[41] Offending while on bail is a factor which is treated inconsistently (withoutclear explanation), sometimes as an aggravating feature of the offending andsometimes as an aggravating feature relating to the offender.18[42] While it makes little difference to the end sentence, I consider the fact theoffending occurred while Mr Toomalatai was on bail is an aggravating factor relevantto the offender in the circumstances of this case, and I calculate the end sentenceaccordingly[43] To summarise, taking the various steps in sentencing and adjusting them whereI consider appropriate, I reach the following result:(a) Starting point: 52 months.(b) Subtracting 15 per cent uplift for prior convictions and offending whileon bail from the total discounts of 45 per cent results in a net discountof 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's18 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 aggravatingthe offending. See Keen v R [2014] NZCA 299; and Lavea v R [2014] NZCA 192 for examplesof 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 stepback, assess the sentence, and conclude it to be incorrect and adjust it to achieve asentence of home detention. Mr Toomalatai's offending involved extensive dishonestyoffending, and the sentence reflects the gravity of that offendingConclusion[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 isimposed.Solicitors:Crown Solicitor, ChristchurchCopy to:D J Matthews, Barrister, Christchurch