Toetoe v R [2011] NZCA 233 (30 May 2011)

Last Updated: 8 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA815/2010 [2011] NZCA 233

BETWEEN STANLEY RANGI TOETOE Appellant

AND THE QUEEN Respondent

Hearing: 2 May 2011

Court: Wild, Venning and Courtney JJ

Counsel: A Malik for the Appellant C J Lange for the Respondent

Judgment: 30 May 2011 at 10 am

JUDGMENT OF THE COURT

1. The appeal is allowed and the sentences imposed by the High Court are quashed.
   
2. The case is remitted to the High Court with a direction that it resolve the disputed facts relating to the aggravated wounding charge and then re-sentence the appellant.
   

100. In the interim, the appellant is to remain in custody.
     

REASONS OF THE COURT
(Given by Wild J)

[1] This is an appeal primarily against a sentence of preventive detention imposed by Brewer J in the Napier High Court on 22 November 2010. In contending for a finite sentence of imprisonment, Mr Malik submits that the overall sentencing starting point the Judge took on the two most serious charges was too high, and the discount allowed for the appellant’s guilty pleas too low. Nevertheless, Mr Malik accepts that a lengthy sentence of imprisonment was appropriate.
[2] The appellant pleaded guilty to a string of crimes committed in Napier within two weeks of his release from prison. There was a charge of aggravated wounding, one of aggravated robbery, a third of aggravated burglary, a fourth of burglary and a fifth charge of breaching parole release conditions.
[3] The aggravated wounding and aggravated robbery charges arose out of the same incident in which the appellant robbed a suburban dairy and stabbed one of its proprietors.
[4] The Judge took the aggravated wounding as the lead offence, composing the sentence of preventive detention on that charge, with a six year minimum period of imprisonment. On the aggravated robbery charge the sentence was six years imprisonment. Lesser sentences of imprisonment were imposed on the other charges. All sentences were concurrent.
[5] Our consideration of this appeal has driven us to the following conclusions:

• (a) there was a significant dispute as to the facts relating to the aggravated wounding and aggravated robbery charges;
• (b) that dispute needed to be resolved, and the facts determined, before the High Court could sentence the appellant;
• (c) the sentencing Judge did not resolve that dispute; and
• (d) the Judge was therefore not in a position to sentence the appellant.

[6] The regrettable consequence of these conclusions is that this appeal must be allowed.
[7] We need only record what happened in respect of the disputed facts. First, the appellant pleaded guilty to each of the charges of aggravated wounding and aggravated robbery in the District Court on 7 July 2010. The District Court declined sentencing jurisdiction and remanded the appellant in custody for sentence by the High Court. The aggravated robbery information charged that the appellant “being armed with an offensive weapon namely a knife robbed Yanyan Guo of cash”.
[8] The aggravated wounding information charged that the appellant:

With intent to facilitate the flight of himself upon the commission of a crime, namely aggravated robbery, wounded Yong Cheng Chen.

[9] Secondly, the undated police summary of facts detailed the facts of the aggravated robbery and aggravated wounding charges. Briefly, it stated that the appellant had ridden a stolen bicycle to a store in suburban Napier. He went in and tried to open a till. When the female proprietor asked him what he was doing, he waved a knife at her. While she went out the back of the store, he took $115 in notes from the till and made to leave. In the meantime, having been alerted by his wife, the male proprietor came into the store just as the appellant was about to leave. The summary of the aggravated wounding charge then stated:

On seeing the male proprietor, the defendant turned around and walked back towards him and immediately stabbed him a number of times in the upper body.

During the mêlée, the defendant and the proprietor made their way to the pavement outside the store.

The female proprietor picked up a stick and handed it to her husband to protect himself before she ran back inside to call the police.

The defendant grabbed the male proprietor round the shoulder area with his left hand and raising his right hand high over his head he brought down the knife stabbing the male in the head and shoulder area with powerful downward stabs.

The male proprietor collapsed to the ground trying to avoid further wounds.

When a bystander approached, the appellant dropped the knife and some of the money and made off.

[10] Thirdly, on 19 November 2010, the Crown Solicitor at Napier filed a supplementary sentencing memorandum addressing three issues. The first of these was the question of disputed facts. This is the relevant part of that memorandum:

Disputed facts

2. Counsel for the prisoner advises in this respect:

“(a) P3, in 14:

Mr Toetoe accepts waving the knife towards the female shopkeeper but denies demanding that she opened the till;

(b) P4:

Mr Toetoe denies the matters as set out in lines 3–4, being that Mr Toetoe denies turning back to the male proprietor and stabbing him inside the dairy.

Mr Toetoe instructs that as he attempted to flee the dairy, he tripped, got back up and ran towards his bicycle. At this point, Mr Toetoe says he was struck from behind by the victim. Mr Toetoe then stabs the victim as set out in lines 9–11.”

3. The Crown does not accept the prisoner’s account.
4. The Court is required (s 24(2)(a) Sentencing Act 2002) to indicate the weight that it would be likely to attach to the disputed fact if it were found to exist and its significance to the sentence or other disposition of the case.
5. The first disputed fact, the Crown contends, is immaterial. In the circumstances of this offending if the prisoner is correct, then the waving of the knife at the shop attendant, an inherently threatening gesture, was to facilitate the transfer of cash from the till to the offender. Whether or not he demanded the victim open the till is of little moment.
6. The Crown also contends the second disputed fact does little to assist the prisoner’s position. In the course of an aggravated robbery he stabbed a victim six times.

[11] Fourthly, if anything further occurred in relation to the disputed facts either before or at the sentencing, we have not been apprised of it. Mr Malik was counsel for the appellant at sentencing. The unresolved factual dispute issue was not a ground of appeal. It was the Court that raised the issue with Mr Malik in the course of his submissions, not vice versa.
[12] Fifthly, in his sentencing remarks, Brewer J stated the facts thus:

Factual background

[2] I turn first to a summary of the events which gave rise to these charges.

[3] On 12 May 2010 you were released on parole from Hawke’s Bay Prison after having completed a sentence of one year two months’ imprisonment for injuring with intent to injure. 12 days later, on the morning of 24 May 2010, you drove to the Marewa area of Napier where you committed the offences for which you are now being sentenced.

[4] You began by stealing a steak knife that you found around the back of a private residence in McDonald Street. You then walked to a house in Morse Street and stole a bicycle.

[5] Initially, you had gone to Marewa with the intention of committing burglaries, but having obtained the knife you decided that it would be easier to use it to commit a robbery. With that purpose in mind, you rode the stolen bicycle to the Carlyle Street Store and considered whether to rob that. However, you decided there was too much traffic nearby and so you rode on to the Vigor Brown Store and decided to rob that instead. You went into the store. You were wearing a hooded sweatshirt, a beanie and gloves, and you were armed with the steak knife. You pulled out the knife and walked to a till which you tried to open. As you did so the female proprietor, Ms Guo, saw you and asked you what you were doing. You waved the knife at her and you walked to a second till and you managed to open that. You took $115 from the till and you started to leave the store.

[6] Ms Guo’s husband, Mr Chen, appeared while you were leaving. Ms Guo handed her husband an item which was probably in the nature of a small baseball bat. A physical struggle then developed and you had the knife. You stabbed Mr Chen a number of times in the upper body. You also brought the knife down upon him, stabbing him in the head and in the shoulder area with powerful downward stabs. Mr Chen collapsed to the ground and you fled on foot, dropping the knife.

[7] Mr Chen suffered six or seven stab wounds, some of them serious. One went right through his left cheek into his mouth. One of the chest wounds was five centimetres deep and another four centimetres deep.

(The Judge’s summary continued, setting out the facts of the other offences.)

[13] On the appellant’s version of the facts, he was fleeing the store, and was running towards his bicycle, when he slipped over. He was then kicked by Mr Chen, who then hit him over the head with a metal bar. That made him angry and he turned back and stabbed Mr Chen, in the shoulder area, in an attempt to get him to drop the metal bar he was wielding.[1]
[14] The Crown’s version was, presumably, as per the police summary of facts.
[15] It is not clear from [6] of the Judge’s sentencing remarks which version he accepted, or precisely what he found the facts to be in relation to the aggravated wounding. Paragraph [6] does not resolve what we regard as a significant difference between the appellant’s version of the facts and the Crown’s. On the Crown’s version, the appellant turned around when Mr Chen came into the store and walked back toward Mr Chen and stabbed him. It is not clear whether this took place inside or outside the dairy, and perhaps it does not greatly matter. The point is that the Crown’s version has the appellant approaching and confronting Mr Chen and stabbing him. The appellant’s contrasting account has him stabbing Mr Chen after being struck over the head from behind by Mr Chen, while the appellant was fleeing the dairy. Again, although it is not clear, it seems that the appellant says this occurred out on the footpath, or perhaps in or near the entrance to the store. There is the further conflict that the summary of facts stated that Mr Chen was wielding “a stick”, whereas the appellant claimed it was a steel or metal bar. And Brewer J described it as “probably in the nature of a small baseball bat”.
[16] Although both versions constitute the crime of aggravated wounding under s 191(1)(c) of the Crimes Act 1961, what actually happened will affect the degree of culpability involved. As the sentence of preventive detention was imposed on that charge, the degree of culpability is directly relevant to whether preventive detention was an appropriate sentence.
[17] For those reasons we have no alternative but to quash the sentence of preventive detention. As we mentioned in [1], in contending for a finite sentence of imprisonment, Mr Malik submitted that the overall starting point of 12 years imprisonment Brewer J took on the aggravated wounding and aggravated robbery charges was too high. That will depend on the level of culpability involved in the aggravated wounding, and thus on resolving the disputed facts. For that reason, we think the best course is to quash all the sentences imposed by Brewer J, to enable the High Court to re-sentence the appellant afresh, once it has resolved the disputed facts.
[18] Accordingly, we quash the sentences imposed by the High Court. We remit the case to the High Court to resolve the disputed facts and, having done so, to sentence the appellant afresh. Pending re-sentencing, the appellant is to remain in custody.
[19] As the appellant pleaded guilty to the charges he faced, it need not be Brewer J who resolves the disputed facts and sentences the prisoner afresh.

Solicitors:
Crown Law Office, Wellington for the Respondent

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[1] This version is taken from paragraph 19 of the psychological assessment report dated 20 September 2010, prepared pursuant to s 88 of the Sentencing Act 2002. The pre-sentence report of 19 July 2010 reported the appellant as stating “he (the victim) came at me with a steel bar and hit me over the head”.