Chaos at Kmart store entrance in Hamilton. Video / Supplied
The judge who jailed a woman over a violent Kmart attack on staff, failed to hand down appropriate discounts for her guilty plea, her upbringing, youth and general remorse, her lawyer says.
Kitia Lucy Toimata was last month imprisoned for 25 months by Judge John McDonald in the Hamilton DistrictCourt for her role in the shoplifting-turned-aggravated assault in April, in which she punched one woman in the head three times.
Toimata, 24, and Sharice Walker-Grace - who will be sentenced next month - each filled up trolleys full of goods at the central Hamilton Kmart before attempting to leave without paying on the night of April 16 this year, when three staff intervened.
The pair used their trolleys as weapons, pushing them into staff members, while Walker-Grace grabbed a pair of metal tongs and swung them at them.
One of the staff tried to stop Toimata from leaving so Toimata grabbed her by the hair and punched her three times in the head.
It was only when a member of the public intervened that the pair left, but the pair then returned, with Walker-Grace stabbing a staff member in the back and trying to stab others.
Judge McDonald took a start point of 24 months before adding uplifts for other shoplifting incidents and applying discounts resulting in 25 months’ jail - just one month short of qualifying for home detention.
He said the offending was a joint enterprise and although she didn’t stab anyone, “you were each supporting each other”.
In appealing her sentence in the High Court at Hamilton today her lawyer, Stephen Taylor, said the pair, who were drunk at the time, never had any intention of attacking people once they got into the store.
Justice Wylie said the offending “was serious” and was compounded by the fact that once leaving after the initial altercation, they returned and started assaulting people.
“In terms of the offending,” Taylor replied, “It wasn’t to come back and start assaulting people, they came back in to take some items off the shelf and leave again.”
Justice Wylie said the pair were dealt with as co-offenders, thereby shared the responsibility for what each other had done.
Taylor conceded that point but said he took issue with the manner in which Judge McDonald determined their pre-meditation.
“It’s quite clear they went there to shoplift and I take no issue there’s premeditation with respect to that aspect. The shoplifting is under $500 and has a 3-month maximum [penalty],” he said.
However, the seriousness of the incident came about due to the aggravated assault on security officers, which were the lead offences.
“That part of it [assault], there’s no evidence to say that it was premeditated.”
Justice Wylie asked Taylor his thoughts on the pair going back into the store, which was when the serious assault took place.
“It may not be significant premeditation but they certainly chose to behave in that way,” Justice Wylie said.
Taylor said there was an element of premeditation but reiterated it was to shoplift and there was no evidence of a plan to attack people.
“I would say that any premeditation going back into the shop relates to the uplifting of those goods, rather than to assault someone which I say is the lead framework for those offences.”
Kitia Toimata pictured last month during sentencing. She's now pushing for home detention, claiming her jail term is "excessive". Photo / Mike Scott
Taylor also submitted Judge McDonald did not give enough discount for Toimata’s early guilty plea, cultural report, youth, and general remorse.
He said Toimata had “slightly less culpability” than that of Walker-Grace who used the tongs to attack people.
“Miss Toimata went to the third person, and was engaged with that one victim without using any weapon at all.”
“She punched her to the head,” Justice Wylie replied.
Taylor acknowledged that, and said taking a “holistic approach” both enabled each other, but Toimata’s culpability was still “slightly below” that of her co-offender.
Taylor said instead of a 24-month starting point, the judge should have begun at 15 to 16 months.
He added that Toimata had not been in trouble since around 2016 from when she became the caregiver for her grandfather who later died, and which appeared to instigate the latest bout of crimes.
The 5 per cent discount for her cultural report factors was also “wholly inadequate”.
She should also have been given 5 per cent discount for young age at the time, and he believed alcohol was a nexus in her offending as it was always a factor in her previous offending.
“There’s a real nexus there that requires more than 5 per cent handed down by Judge McDonald.”
She had also never had either an electronically-monitored sentence or served jail time before.
He urged Justice Wylie to hand down a home detention sentence of between four and six months, which would ultimately see her term finish by the end of the year.
“Given her age and it appears she has matured over the past five months ... and not offending through that period effectively dedicating her life to her children, there is real prospects of rehabilitation there.”
