TOKO v R [2017] NZCA 460

TOKO v R [2017] NZCA 460 [17 October 2017]NOTE: PURSUANT TO S 123G OF THE SENTENCING ACT 2002 AND S 125OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THISPROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILYCOURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/ABOUT/NEWS-AND-MEDIA/MEDIA-CENTRE/MEDIA-INFORMATION/MEDIA-GUIDE/COURTS-WITH-SPECIAL-MEDIA-PROVISIONS/FAMILY-COURT/.IN THE COURT OF APPEAL OF NEW ZEALANDCA638/2016[2017] NZCA 460BETWEEN WILLIAM SHALONE TOKOAppellantAND THE QUEENRespondentHearing: 3 October 2017Court: Winkelmann, Wylie and Whata JJCounsel: P H Tomlinson for AppellantA J Ewing for RespondentJudgment: 17 October 2017 at 10.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, Mr William Toko, appeals a sentence of three years and twomonths' imprisonment imposed on him by Judge Pippa Sinclair in the District Courtat North Shore on 24 November 2016.1 The sentence was imposed in respect of six charges — injuring with intent to injure, threatening to kill and four charges of male assaults female.[2] Guilty pleas to three of the male assaults female charges were entered prior to the commencement of the trial. Not guilty pleas were entered to the remaining charges and the trial proceeded. After the complainant had given her evidence-in-chief, Mr Toko advised that he was prepared to change his pleas. The Crown did not proceed with some other outstanding charges and Mr Toko subsequently pleaded guilty to the three additional charges noted above — injuring with intent to injure, threatening to kill and male assaults female.[3] Mr Toko contends his sentence on the six charges is manifestly excessive.Factual background[4] The complainant and Mr Toko had previously been in a relationship. They had known each other for approximately 12 years.[5] In January 2016 Mr Toko, who had recently been released from prison, wasstaying at his sister's house.[6] On the evening of 28 January 2016 Mr Toko returned to the house. He found the complainant socialising with a female boarder, who also resided in the house.[7] Later in the evening the complainant went outside to have a cigarette. Mr Toko followed and then confronted her. He was jealous about the fact that she had been speaking with the female boarder. After a short verbal exchange, Mr Toko punched the complainant in the face with a closed fist and without warning.[8] The complainant was shocked. She stayed away from Mr Toko for the rest of the evening to try and avoid any further conflict.1 R v Toko [2016] NZDC 23841.[9] At about 11 pm that night the complainant, Mr Toko and Mr Toko's sister, travelled in the complainant's car to a bar in the South Auckland area. When they arrived at the bar, the complainant and Mr Toko got out of the car and went into thebar. Mr Toko's sister stayed in the car to sleep. Mr Toko was acting aggressively.The complainant and Mr Toko spent a short time in the bar then went back to the car. As they did so, Mr Toko pulled the complainant aside and accused her of looking at a DJ who had been playing music in the bar. Mr Toko punched the complainant three times in the face, before pulling her back to the car. He then punched her twice more in the head before they both got back into the car. As they drove back to the house, Mr Toko threatened the complainant.[10] When they got back to the house, Mr Toko's sister went inside leavingMr Toko and the complainant in the car alone. Mr Toko began to yell obscenities at the complainant. He again accused her of having looked at the DJ in the bar. Mr Toko then punched the complainant in the head repeatedly as she sat in the frontpassenger's seat. She managed to get out of the car. Mr Toko also got out of the car.He further assaulted her, again punching her in the head and the face numerous times. One of the punches knocked the complainant to the ground where she momentarily lost consciousness.[11] When she regained consciousness, the complainant attempted to pick herselfup off the ground. As she did so, Mr Toko swung open the driver's door of the carand slammed it into the back of the complainant's head and neck, causing her to fallto the ground again. While she was on the ground, Mr Toko kicked her in the face.[12] The complainant eventually picked herself up and tried to regain her balance. Mr Toko then approached her and pushed a lit cigarette into her throat, burning her and causing her to scream in pain (the injuring with intent to injure charge).[13] The complainant went back inside the house, saying that she was leaving. She endeavoured to gather her belongings. Mr Toko punched her around the head again, preventing her from leaving and throwing her on the floor. He said to her"You're not going anywhere bitch, I'll fucking kill you if you go anywhere"(the threatening to kill charge). Believing that he would assault her again if she tried to leave, the complainant lay down on the bed and kept quiet.[14] The following day, Mr Toko forced the complainant to drive him to an ATM. When he got out to withdraw money, she managed to drive off in the car, call her mother in distress and drive to a hospital. She was admitted and received treatment for her injuries, including bruises to her lips and left thigh, a sore forehead and a circular shaped lesion in the front of her throat from the cigarette burn. She also complained of aching soreness to the back of her neck and top of her spine as a resultof being struck with the driver's door by Mr Toko. She was required to stay inhospital overnight for observation.District Court decision[15] Judge Sinclair took injuring with intent to injure as the lead offence. However, she approached the sentence by fixing a starting point for all of the assault charges and then imposing an uplift for the threatening to kill charge.2 The Judge adopted an initial starting point of two years and nine months' imprisonment for allassault charges.3 She noted the extent of the violence and that it targeted thecomplainant's head and neck. She observed that the assaults were prolonged. Shecommented on the physical and psychological trauma inflicted on the complainant.4She noted that there is no tariff case for the charge of threatening to kill.5 Sheaccepted that Mr Toko's threat was not premeditated and that he was out of control atthe time. She nevertheless considered that the threat was made directly to the complainant immediately after one of the assaults. She added an uplift of sevenmonths' imprisonment for the threat to kill.62 R v Toko, above n 1, at [15].3 At [20].4 At [17]–[18].5 At [21].6 At [22].[16] Judge Sinclair then adopted a further uplift of three months' imprisonment for Mr Toko's previous violence-related convictions,7 and for the fact that the offending took place soon after Mr Toko had been released from prison, and while he was subject to a sentence of community work for driving while disqualified.8 The Judge allowed a five-per-cent discount for Mr Toko's willingness to engage in restorativejustice and a further eight-per-cent discount for Mr Toko's guilty pleas, resulting in an end sentence of three years and two months' imprisonment.9 Judge Sinclair finally made a protection order in favour of the complainant.10Grounds of appeal[17] Mr Toko appeals his sentence on the basis that it is manifestly excessive. Mr Tomlinson, appearing on his behalf, argues that the appropriate starting point forall offending was two years and nine months' imprisonment — the uplift of seven months for the charge of threatening to kill was excessive and in breach of the totality principle. He also argues that the three-month uplift for personal aggravating features was excessive.Appeals against sentence[18] The appeal is brought pursuant to s 250 of the Criminal Procedure Act 2011. It provides that an appeal court must allow an appeal against sentence if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should have been imposed. In any other case, the court must dismiss the appeal.11[19] Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.127 Mr Toko has an extensive criminal history. His violence-related previous convictions include four convictions for male assaults female, two convictions for assault with intent to injure, three convictions for common assault and one conviction for injuring with intent to cause grievousbodily harm. One of Mr Toko's convictions for male assaults female was in early January 2016.The rest of his violence-related convictions took place in 2000 and earlier.8 R v Toko, above n 1, at [23]–[24].9 At [26] and [29].10 At [32].11 Criminal Procedure Act 2011, s 250(3).12 See for example Ripia v R [2011] NZCA 101 at [15].The court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.Analysis[20] Judge Sinclair dealt with all assaults together when fixing her initial starting point. Mr Tomlinson did not take issue with this and we agree that it was appropriate in the circumstances of this case. The assaults were part of a connected series of offences, of a similar kind, against the same complainant.[21] The tariff judgment for this type of offending is the decision of this Court inNuku v R.13 Judge Sinclair placed Mr Toko's offending at the top of band 2 asdiscussed in Nuku. She did so because of the prolonged nature of the attack, thetargeting of the complainant's head and the injuries caused.[22] The bands discussed in Nuku are as follows:[38] The following bands apply:(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.(b) Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.[23] Here, there was a combination of aggravating features.(a) There was serious violence meted out over a lengthy period. The offending did not result from a one-off loss of temper. As was noted13 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.in Nuku, prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band 3, even if there are few other aggravating features.14(b) The violence inflicted by Mr Toko was targeted to the complainant'shead.(c) The assault with the car door involved the use of a weapon — the door.(d) Finally, in what we consider to be an additional aggravating feature, the assault with the door was undertaken while the complainant was on the ground (having just recovered consciousness) and was vulnerable.[24] In our judgment, the starting point of two years and nine months adopted by Judge Sinclair was well within the available range given the aggravated nature of Mr Toko's offending.[25] It was submitted for Mr Toko that the uplift imposed by Judge Sinclair for the threatening to kill charge was not justified — the threat to kill was not offending of a different kind, on a different occasion, to a different complainant. It was argued that the threat to kill charge was rather part of the continued course of conduct which Mr Toko had embarked on, and that it did not require or justify a separate sentence.[26] We disagree that the uplift was unjustified. The threat to kill came at the end of a long night of gratuitous violence inflicted by Mr Toko on the complainant. In context it was a credible threat that Mr Toko would kill his victim. The threat would understandably have caused the victim to fear for her life. It was delivered atclose quarters in Mr Toko's bedroom, and it was accompanied by another blow to the head. Mr Toko had the ability to carry out the threat and he posed a danger to the complainant when the threat was made. The threat was clearly intended to be taken seriously. The Judge regarded the threat as a seriously aggravating feature of the14 At [38(c)].assault offending, given the circumstances in which it occurred. We agree with that assessment.15 It was offending which was different in kind from the assault charges. In any event, the uplift was simply the method the Judge used to reach a sentence she considered reflected the totality of the offending.[27] On that point, we reject the submission the Judge failed to take into account s 85 of the Sentencing Act 2002, which provides in short that a court must consider the totality of the offending. Judge Sinclair recorded that the appropriate way ofdealing with Mr Toko's offending was to "provide a starting point on a totality basisfor all of the assault charges and then impose an uplift for the threatening to killcharge".16[28] Mr Tomlinson also submitted that Judge Sinclair's three-month uplift for Mr Toko's personal aggravating features was not warranted, given his criminalhistory.[29] Again, we disagree. The Judge took account of the fact that, with oneexception, Mr Toko's previous convictions for violence occurred in 2000 or earlier.She expressed the view that the earlier convictions were "somewhat historic".17 Of more concern, both to the Judge and to this Court, is the fact that Mr Toko assaulted the complainant shortly after his release from prison and not long after another conviction of male assaults female in January 2016. The assaults were in breach of his release conditions and while he was subject to a sentence of community work. These features warranted the three-month uplift. They suggest that Mr Toko was prepared to reoffend, notwithstanding that he was subject to several forms of oversight at the time.18[30] Mr Toko did not criticise the discount for his guilty plea. Nor could he properly do so. The eight-per-cent discount allowed by Judge Sinclair could well have been lower given that pleas to three of the charges were only entered during trial, after the complainant had given her evidence-in-chief. We accept the Crown15 See also Paraone v Police [2016] NZHC 2549 at [10].16 R v Toko, above n 1, at [15].17 At [24].18 R v Whiunui CA212/05, 9 November 2005 at [17].then agreed to withdraw and/or reduce some of the charges, but nevertheless the guilty pleas were offered very late in the day. The complainant had to undergo the obviously traumatic experience of giving evidence against her former partner.[31] In our judgment, the sentence imposed by Judge Sinclair was well within the available range given the totality of the offending. It was not manifestly excessive.[32] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent