R v Toko CA526/95 [1996] NZCA 389 (7 March 1996)

Last Updated: 13 December 2021

TOKO Keith Manu Gregory Frank v R

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

526/95

7 Mar 1996

Gault J - McKay J - Henry J

Appellant: Keith Manu Gregory Frank TOKO Respondent: The Queen

Coram No.: 3

Appellant's Counsel: Written submissions

Filing date: 23 Nov 95

Hearing Year: 1996

Keytitles: Criminal Law, Appeals against conviction, Offences, Abduction, Grounds, Counsel, Sentencing

Statutes: Crimes Act 1961 - Orig. Sentence: 6 years imprisonment Judgments: 52695

Criminal Law - Abduction - complaints against counsel - police and judge - no matters of substance to suggest miscarriage of justice - n o undue delay in trial - sentence of 6 years within judge's discretion - and no concern on ground of disparity.

Appeal against conviction and sentence dismissed.

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.526/95}

_{THE QUEEN}

v

_{KEITH MANU GREGORY FRANK TOKO}

Coram: Gault J

McKay J

Henry J

_{Judgment: 7 March 1996}

_{(ex parte)}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

Mr Toko was found guilty by a jury on two charges of kidnapping with intent to hold for ransom. He was sentenced

to six years imprisonment. He appeals against both conviction and sentence.

The victims were two Taiwanese brothers aged 17 and 21. They were living in New Zealand as students while the parents remained in Taiwan. The appellant and another offender entered the boys' house, both being disguised and both carrying firearms. The boys had their hands and faces bound with black insulation tape, and were taken away to a garage, where demands were made for a ransom of $300,000. The younger boy was then taken away to organise the ransom, while the older boy was tied to a pole with a rope round his neck, and a knife held against his throat with the threat that if he moved, his throat would be cut. He was later taken in the boot of a car to a caravan park, and from there escaped and alerted the police. It seems clear that more than two persons were involved, but the only persons apprehended were the appellant and his girl friend, who was the co-accused.

Page 2

The grounds of appeal were stated to be lack of proper preparation by counsel, underhand police activity in investigation, the alteration of Crown witness statements, intimidation of the jury by the police and by the Judge in Court, and the fact that the evidence produced was not directly linked to the appellant, although he received the longer sentence. The appellant sought legal aid, but this was refused after reference to three members of the Court, none of whom considered that there were arguable grounds of appeal. The appellant was notified of his right to put forward written submissions, and has done so. These submissions have now been considered by the Court as at present constituted.

The appellant's defence was a complete denial of having ever seen the victims or of having any involvement in their kidnapping or abduction. His complaint is that his counsel did not spend much time with him, but there is no specific complaint showing lack of preparation and no indication of any evidence which could and should have been called.

He complains of the attitude adopted by the police investigating officers, the remarks made by one of them and

accusations made against his father. None of these matters are such as to suggest any miscarriage of justice in the trial. He complains that a taxi driver who took one of the victims to the police station had in a statement described him as wearing a green woollen jersey, but this was omitted in his deposition evidence which was read to the jury. There is no suggestion that it was material to any issue in the trial.

In his written submissions, the appellant complained of the lack of a speedy trial. The appellant was arrested on 7

December 1994. He was committed for trial on 1 May 1995, and his trial commenced on 25 September. There is no substance in his complaint. He claims that the police officer "made slanderous comments and gestures"

Page 3

during the trial for the jury to see and hear, but we are not told what they were, and they were apparently not observed by the Judge. We were told that the Judge indicated to the jury that she would be engaged for a period while they were deliberating, presumably so that they would understand if there was any delay if they wished to ask a question or if they reached a verdict. Neither of these matters gives us any concern as to the jury's verdict. There was ample evidence to support the verdict, based on the police tracing of telephone calls, the execution of a search warrant in respect of a unit in the caravan park and a vehicle, and forensic evidence matching items found with items involved in the kidnapping.

In regard to sentence, the appellant says that all the physical evidence presented linked the offence with his de facto spouse, who was the co-accused, yet her sentence was only half of his. The Judge was satisfied that there were at least two other people involved in the kidnapping. These were indications that the co-accused was clearly not one of the abductors, as both were male, but the appellant was not shown by evidence to have been one of them. What was clear, she said, was his greater involvement, particularly in the planning and organising of the offence. There were indications that the co-accused may well have been used by the appellant. Taking 9 years and possibly higher as a starting point for an offence of this kind with the aggravating factors present, the Judge said she would not treat them as having been the primary offenders. She imposed a term of six years on the appellant and a term of three years on the co-accused. These sentences were within the range properly open to her, and cannot be described as manifestly excessive. The difference between them was justified by the different levels of involvement, and does not give rise to any concern on the ground of disparity.

_{The appeals against both conviction and sentence are dismissed.}

Appellant's Counsel: Written submissions

End of Document