Iongi v Police

[2025] NZHC 2329

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-98

CRI-2025-409-99 [2025] NZHC 2329

BETWEEN

JOSHUA HEAMONI IONGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 August 2025
Appearances:	C C Gullidge for Appellant K N Stitely for Respondent
Judgment:	18 August 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 18 August 2025 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

IONGI v NEW ZEALAND POLICE [2025] NZHC 2329 [18 August 2025]

Introduction

[1]    Joshua Heamoni Iongi (age 26) appeals a sentence of two years’ imprisonment imposed on him by Judge Couch on 27 March 2025 for the following charges:1

(a)assault on person in family relationship (x 5);2

(b)breaching protection order (x 3);3

(c)wilful damage;4 and

(d)driving while prohibited.5

Facts

[2]    Mr Iongi was served a temporary protection order on 9 January 2024. The victim of the family violence offending was the protected person under that order.6

[3]    On 27 April 2024, Mr Iongi was at the victim’s Christchurch home address helping her move in. An argument ensued. Mr Iongi grabbed the victim’s phone (valued new at $969) and broke it. In response to Mr Iongi’s violence escalating, the victim gathered her two children and left the property.

[4]    The next day, the victim returned to her home with her children and began unpacking. Mr Iongi approached the victim, pushed her to the ground and struck her twice, including a slap with moderate force. The victim sustained tenderness to the right side of her face, and to her scalp where her hair was pulled. Mr Iongi admitted to slapping the victim’s face and pushing her to the ground. These events gave rise to charges of wilful damage, assault on person in a family relationship, and contravening a protection order.

1      Police v Iongi [2025] NZDC 7646.

2      Crimes Act 1961, s 194A—maximum penalty two years’ imprisonment.

3      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a)—maximum penalty three years’ imprisonment.

4      Summary Offences Act 1981, s 11(1)(a)—maximum penalty three months’ imprisonment or

$2,000 fine.

5      Land Transport Act 1998, s 52(1)(c)—maximum penalty $10,000 fine.

6      Based on the subsequent charges, the order has presumably become permanent.

[5]    On the evening of Thursday 21 November 2024, Mr Iongi and the victim were at their address when an argument began about the couple’s finances. Mr Iongi and the victim left in the victim’s vehicle so she could pay her rent using free public wifi. Mr Iongi used the victim’s last remaining funds in her account to purchase a packet of cigarettes. The argument escalated. The couple returned home and parked outside their address. Mr Iongi punched the victim at least three times in the side of the head causing the victim to cry.

[6]    Mr Iongi, while smoking a cigarette, demanded the victim apologise to him for something he felt she had done wrong. He leant over and placed the burning end of the cigarette against the victim’s thigh which caused a small burn to the victim’s skin. Mr Iongi leant over the victim and said “shut the fuck up and stop crying, otherwise I’ll burn your face” and continued making similar demands to the victim including that she apologise. The victim sheltered her face with her hands and Mr Iongi punched her once forcefully in the hand. The victim described the force used as about an  eight out of 10 and said she felt Mr Iongi was aiming for her face.

[7]    The victim attempted to leave the vehicle but Mr Iongi grabbed her head and pulled her back into the car. The victim said she felt like she was being held captive or hostage in the vehicle for several hours. She told Mr Iongi she needed to go to the toilet and he responded, “you can fucken piss yourself”. The victim eventually apologised to Mr Iongi despite feeling she had done nothing wrong. Mr Iongi demanded she not stop  saying  sorry and that she hug him.  At about  3.30 am  on  22 November, Mr Iongi allowed the victim to go inside with him.

[8]    The victim suffered bruising and pain as a result of being punched. Some of her hair fell out as a result of Mr Iongi grabbing her back into the car. Mr Iongi stated he smacked the victim to teach her a lesson about respecting him but that the burn on her leg was accidental and he did not threaten to burn her face. He admitted to pulling her back into the car but denied holding her captive. These events gave rise to four convictions of assault of person in family relationship and two for contravening a protection order.

[9]    Mr  Iongi  was  found  driving,  which  he  had  been  prohibited  from,  on  11 August 2024, giving rise to his conviction under the Land Transport Act 1998.

Victim impact statement

[10]   The victim wrote a thoughtful statement for the Court in which she largely focused on how Mr Iongi’s actions were caused by a lack of support and ability to manage his emotions. She says the couple were expecting their first child together in April 2025 and that she will need his help with this child.

District Court decision

[11]   The Judge considered the domestic violence offending on 21/22 November (the November offending) as the most serious as it involved violence over an extended period, controlling behaviour, breach of trust and a degree of premeditation due to repeated threats and assaults to force the victim to apologise, demonstrating a controlling and manipulative attitude. The Judge adopted a two-year starting point to this offending.7

[12]   For the offending that occurred on 27/28 April (the April offending), the Judge set a starting point of eight months to reach a combined starting point of 32 months. An adjustment for totality was applied, resulting in an adjusted starting point of     28 months’ imprisonment.

[13]   The Judge applied an uplift of 12 per cent “for the proportion of the starting point attributable to the November offending” to reflect the fact the November offending occurred whilst Mr Iongi was on bail and in breach of an express term of the bail.8 A five per cent uplift was applied to reflect Mr Iongi’s 2023 conviction for assault on person in a family relationship against the same victim.

[14]   A 22 per cent deduction was allowed for Mr Iongi’s guilty pleas which occurred after having entered not guilty pleas to the April offending.9

7      Police v Iongi, above n 1, at [11].

8 At [14].

9      The Judge incorrectly referred to these as the “March charges”.

[15]   The Judge acknowledged the pre-sentence report and alcohol and drug report, but rejected counsel’s argument that Mr Iongi was entitled to a discrete deduction for background factors and cannabis use. The Judge also refused to allow a deduction for the impact of parental incarceration on the child with the victim which was due in April 2025.10

[16]   An end sentence of “just under 24 months’ of imprisonment” was reached.11 The Judge indicated he would have allowed home detention, but Mr Iongi did not provide an address. The Judge therefore sentenced Mr Iongi to 24 months’ imprisonment imposed on the breaching protection order charges. The Judge convicted and discharged Mr Iongi on the driving charge and granted Mr Iongi leave to apply for home detention due to Mr Iongi’s limited criminal history.

Principles on appeal

[17]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 As the Court of Appeal commented in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.13 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14

Fresh evidence

[18]   Mr Iongi seeks leave to adduce a psychological report, authored by a clinical psychologist Ms McKeogh as fresh evidence. It is relied on for the ground of appeal that challenges the Judge’s refusal to allow a deduction for personal background

10     Police v Iongi, above n 1, at [19].

11 At [20].

12     Criminal Procedure Act 2011, ss 250(2) and 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

14     Ripia v R [2011] NZCA 101 at [15].

factors. He also seeks to adduce an email exchange from Corrections staff confirming that the victim and their newborn baby visited Mr Iongi 10 times in prison before she was banned from visiting him for 12 months for delivering contraband to Mr Iongi.

[19]   For admission on appeal, the evidence must generally be fresh, credible and cogent.15 However, the overriding consideration is whether admission of the evidence is in the interests of justice.16

[20]   The respondent opposes the admission of the psychological report and contends the information it contains, for the purposes of this appeal is not fresh evidence and could have been put before the Court at sentencing, albeit perhaps in a different form, such as a letter or affidavit. It is further submitted that this information is not sufficiently cogent such that it would have made a difference at sentencing. In terms of the email, the respondent accepts it is fresh, but submits it assists little with the issue of whether a deduction for parental incarceration should be made.

[21]   Information relating to Mr Iongi’s background was before the sentencing Judge, to some extent, in the form of an alcohol and drug report and a pre-sentence report. However, the Judge declined to allow any reductions of the sentence on the basis of the content in those reports. That decision has now become a ground of appeal. The production of the psychological report was clearly a result of the Judge’s decision that the content of the other reports did not justify a deduction. Ms McKeogh, in the report, draws (albeit tentative)  conclusions  as  to  the  connection  between Mr Iongi’s background and his offending. Despite the fact it likely could have been produced at sentencing, I consider it is in the interests of justice to allow the report to be adduced so that all material relevant to the appeal can be considered.

[22]   Leave is granted for the psychological report and for the email from Corrections to be adduced on appeal.

15     Mark v R [2019] NZCA 121 at [16].

16     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].

Submissions

Uplift for prior conviction

[23]   The primary submission on this  ground  of  appeal  is  that  the  uplift  of  five per cent for previous convictions on the starting point of 28 months’ imprisonment was disproportionate. Mr Gullidge refers this Court to Carruth v R17 and Irwin v R.18 In Carruth, the appellant was sentenced on charges of demanding with intent to steal and aggravated robbery. The Court of Appeal found the sentencing Judge had erred in applying an uplift of four months for previous violent offending, when “there was only one such incident and it was both relatively insignificant and relatively aged” (the previous conviction having occurred ten years earlier).19 The Court considered there was no proper basis for an uplift.20

[24]   In Irwin, the appellant had been sentenced on three charges of possession of methamphetamine for supply. An uplift of one month imprisonment was applied to a starting point of two years and eight months, to reflect one prior conviction for supply of methamphetamine that had occurred the previous year which was of low culpability and where the appellant had been sentenced to six months community detention. The uplift was removed on appeal. Mr Gullidge contends that other than the present charges being violence rather than drug offending, the present case is indistinguishable to the facts of Irwin.

[25]   Ms Stitley submits that while uplifts must be proportionate to both the starting point for the offending sentenced, and the sentence provided for the previous conviction, there is no rule that a starting point of imprisonment cannot be subject to uplifts for previous convictions, where the sentence imposed for those convictions was less than a sentence of imprisonment. Ms Stitely refers to Taylor v R where an uplift of two months’ imprisonment was imposed on appeal for four “relatively minor” charges which had attracted sentences of two months’ community detention and a fine.21

17     Carruth v R [2013] NZCA 296.

18     Irwin v R [2020] NZCA 181.

19     Carruth v R, above n 14, at [27].

20 At [27].

21     Taylor v R [2014] NZCA 561 at [13].

Discussion

[26]   As I set out in Reedy v Police, uplifts for previous convictions can be imposed where the previous convictions bear on the character and culpability of the offender; indicate a predilection to offend in a specific way; or reflect the need to protect society by the imposition of a deterrent sentence.22

[27]   I do not consider Mr Iongi’s situation similar to Carruth. Mr Iongi’s previous family violence offending occurred in 2022 and therefore was relatively recent. While the penalty imposed (a $300 fine) suggests the offending was not serious, it is nevertheless an identical charge to that which he has been sentenced for—assault on a person in a family relationship. Although Mr Gullidge contends the Judge erroneously believed the conviction involved the same victim, that is not a material issue. There is clearly prior similar offending which the previous sentence did not sufficiently deter.

[28]   In circumstances where the prior conviction was recent, and on the same charge as the charges presently faced, the principles as set out in Reedy are relevant. An uplift was therefore justified to reflect those principles and, in particular, the culpability of the offender and the need to deter him from offending in this way. It can also be difficult to judge whether an uplift is proportionate when comparing a non-custodial sentence with a custodial sentence. In light of the decisions in Irwin, and Taylor, and the relatively low sentence of a $300 fine imposed on the prior conviction of assault, an uplift of 1.4 months was on the stern side, but the real issue is, of course, whether the end sentence was in range.

Parental incarceration

[29]   The appellant challenges the Judge’s decision to decline a deduction for hardship to his infant child resulting from imprisonment, on the basis a deduction would have  very  little  impact  on  the  appellant’s  relationship  with  his  child.  Mr Gullidge submits that it is the inability of Mr Iongi to form that relationship with the infant that will likely have the impact on the child, particularly given the age and stage of the infant. Mr Gullidge says the presence of parent/s in the first year of an

22     Reedy v Police [2015] NZHC 1069 at [19].

infant’s life is significant and the Court may be willing to take judicial notice of that fact. He also refers to Nguyen v R, where a reduction of five and a half per cent was allowed for the appellant’s first child who was born approximately four weeks prior to his sentencing.23 Mr Gullidge suggests Mr Iongi’s situation is similar to that case. He also relies on the evidence that Mr Iongi has sought to establish a relationship with this child since the child was born in April through regular visits while in prison.

[30]   Ms Stitley, however, refers to Philip v R, where it was recognised that inter- familial violence may be a primary consideration in determining whether a deduction is appropriate to reflect parental separation.24 She submits it was open to the Judge, in the exercise of his discretion, to decline a discount for the impact on the appellant’s child. He is not the primary caregiver and does not have an established relationship with the child. He also lacks remorse and insight into his offending.

Discussion

[31]   In Allen v R Eaton J summarised the factors to be taken into account when determining whether a deduction should be provided for the impacts of parental incarceration.25 These include:26

… the importance of children growing up in a familial environment, absence of remorse or lack of rehabilitative steps taken, whether the defendant is a primary caregiver, the nature and seriousness of the offending, the loss of a supportive parent in the family home, and the strength of the bond with the child and the impact imprisonment may have.

[32]   The factors set out above applied to the present case do not weigh strongly in favour of a parental incarceration deduction. While I acknowledge the importance that should be placed on children growing up in a familial environment, it is notable that there is an absence of remorse shown by Mr Iongi. It is clear that Ms McKeogh considers Mr Iongi has either denied some of the acts or alternatively, minimised the severity of his actions and attributed blame towards the victim. The psychological report outlines that Mr Iongi does not consider engagement in offence-specific

23     Nguyen v R [2024] NZHC 2974.

24     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [56].

25     Allen v R [2024] NZHC 1972.

26     At [38] (footnotes omitted).

intervention is necessary and Ms McKeogh concludes there is a significant risk of future violence within an intimate partner context.

[33]   The pre-sentence report states Mr Iongi was ordered by the Family Court to attend a Stopping Violence programme, but he did not comply with that direction. Furthermore, he blamed his partner for the violence saying “she’s two years older than me … she should be more mature than me … she should know better”. All of those considerations reflect that Mr Iongi is not currently interested in rehabilitation and that limits the weight that may be given to the importance of Mr Iongi providing a supportive familial environment, in these circumstances.

[34]   The offending was serious, being against the mother of Mr Iongi’s child, in breach of a protection order. Some of the offending occurred in November 2024, at which time the victim was five months pregnant with this child. Mr Iongi is not the primary caregiver, and his child was born while he was in custody, meaning the strength of the bond between father and child is limited. On the other hand, I accept that the impact of imprisonment will be challenging to the mother of his child. I do not ignore that she has stated  in  the  victim  impact  statement  that  she  requires Mr Iongi’s help with the child.

[35]   That said, weighing all the factors, I am not persuaded the Judge erred by declining to allow a deduction for parental incarceration. While brief, the Judge’s reasoning that the modest deduction would do very little for the effect on the relationship between father and child was correct. Having particular regard to the fact Mr Iongi was sentenced for family violence towards the mother of his unborn child in the context of breaching a protection order, I am not satisfied that the deduction sought is justified.

Deductions for additional mitigating factors

[36]   The appellant seeks a 15 per cent deduction to reflect his upbringing and its impact on his ability to deal with conflict in his personal relationships. The sentencing Judge considered whether a deduction for earlier life and cannabis use was available on the basis of the contents of the pre-sentence report and the drug and alcohol report but was not persuaded a further sentence reduction was justified.

[37]   The appellant now relies on the psychological report to support such a deduction. Mr Gullidge submits Mr Iongi was deprived of a stable home life and firm attachment figures, and these, coupled with exposure to domestic violence, are causative factors to the present offending, because they have impacted his ability to deal with conflict in his personal relationships. He submits Mr Iongi’s early use and subsequent addiction to cannabis would have added to these difficulties.

[38]   Ms Stitely highlights the psychological report does not make it clear what exposure the appellant had to physical violence or the effect it had on him. Further, Ms Stitely suggests the links drawn by the report writer between the offending and the appellant’s background are tenuous. For example, the report writer “hypothesises” that the appellant’s experiences of living with his New Zealand family caused him to develop beliefs that normalised the use of violence, alongside probable negative attitudes and feelings towards women. However, it is not clear what information that report writer uses to draw these conclusions.

Discussion

[39]   The key background factors that are  primarily  relied  on  as  causative  of Mr Iongi’s offending are lack of a stable home and firm attachment figures, having been raised by three different families, as well as the infliction of physical punishment on Mr Iongi as a teenager and the reported continued use of cannabis since he was nine years old.

[40]   Where background factors contribute causatively to offending (that is, they help to explain how the offender came to offend), they will be relevant for the purpose of sentencing.27 I must therefore determine whether the nature of Mr Iongi’s upbringing and the stated cannabis use and abuse in Mr Iongi’s background was a causative contributor to the present offending.

[41]   As noted, Mr Iongi over the course of his youth was raised in three different households. He was shifted from one family in Tonga to another, and then to live with extended family in New Zealand, at the age of 12. Mr Iongi faced educational barriers,

27     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

leaving school relatively early.   I accept, as the psychological report states, that     Mr Iongi faced the adversity of early disruption in his relationships. Mr Iongi reports having begun using cannabis at the age of nine, and by the age of 17 was using it daily up until his remand in custody. The psychological report states Mr Iongi was consuming cannabis daily in the period surrounding the index offending.

[42]   A connection, albeit only tentatively, is drawn by Ms McKeogh between these background factors and the present offending. She says his “history of childhood [adversities] by way of early disruption in his attachment to key figures … may have impacted on his ability to form stable, trusting and secure relationships” and this was further impacted by the move to New Zealand. If she is right, it goes some way to explaining why he is unable to manage conflicts in relationships.

[43]   However, his background does not clearly explain the link to the use of violence. The psychological report states “Mr Iongi’s responses suggested he was subject to punitive parenting, including physical abuse as punishment and exposure to domestic verbal conflict”. There are no specific examples set out in the psychological report, or in the other reports on the file and it is unclear who the perpetrator of the violence was, how often it occurred or how it might have led to the possibility of him normalizing the use of violence. In all other respects Mr Iongi’s childhood is not marred by deprivation or neglect, and I can place only modest weight on the link between his background and his current offending.

[44]   In terms of his cannabis use there is simply no evidence to link that to his current offending except Ms McKeogh’s opinion that its “disinhibiting effects” may have perpetuated his propensity to engage in impulsive or violent behaviour. However, that type of connection is expressly prohibited from being taken into account by s 9(3) of the Sentencing Act 2002.

[45]   In summary, I accept Mr Stitley’s submission that the psychologist’s report is entirely based on self-reporting (which information was already before the Court) and is lacking in detail about how the appellant’s background has causatively contributed to the offending. While a modest discount for the generalised links Ms Keogh

tentatively draws could be available, I can not say the Judge was in error to decline such a deduction.

Sentencing methodology

[46]   The Judge’s end sentence does not reflect the indicated adjusted starting point and uplifts and deductions set out in the District Court judgment. As Mr Gullindge notes, the Judge’s arithmetic is difficult to follow. Counsel have not agreed in submissions what the Judge’s likely approach was. The problem appears to arise out of the application of the 12 per cent uplift to the proportion of the starting point that relates to the November offending. It is unclear at what stage in the methodology the proportionate uplift was applied, as the 12 per cent deduction could not have been applied as ‘a net percentage’ along with all other uplifts and deductions, as usually occurs at step two under the Moses method.28

[47]   In resolution, I set out the Judge’s adopted  figures  as  applied  in  the  District Court, as they would be applied using the Moses methodology.

[48]   There starting point of 32 months was made up of 8 months for the April offending (25 per cent) and 24 months for the November offending (75 per cent). The Judge adjusted that starting point for totality downwards to 28 months. A 12 per cent uplift should have been applied to the proportion of the totality-adjusted starting point that reflects the November offending. That can equally be achieved by adopting a nine per cent uplift on the entire starting point for ease of calculation. Adding on the five per cent uplift for prior offending, the uplifts total 14 per cent. When the deduction for guilty plea is netted off against that there is an eight per cent redeuction on the starting point of 28 months, the resulting sentence is 25.76 months. The sentence imposed in the District Court was, however, just under 24 months (albeit not specified exactly).

[49]   Clearly, there was an error in the arithmetic in the District Court that favoured Mr Iongi. Thus, even if the Judge was wrong not to allow a modest discount of

28     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

five per cent for background factors, it is the end sentence which must be shown to be manifestly excessive. That is not the case here.

Result

[50]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
M J Smit, Barrister, Christchurch