Ponga v Police

[2020] NZHC 2774

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000109

[2020] NZHC 2774

BETWEEN

TUMAHANA JOHN PONGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 October 2020

Appearances:

K J Gray for the Appellant

P A Norman for the Respondent

Judgment:

22 October 2020

JUDGMENT OF NATION J

Introduction

[1]    The appellant, Mr Ponga, pleaded guilty in the District Court to unlawful possession of a firearm, unlawful possession of ammunition, unlawfully getting into a motor vehicle and driving while disqualified third or subsequent. Judge Kellar provided a sentence indication on 19 June 2020. On 5 August Mr Ponga was sentenced to six months’ home detention by Judge Neave and was disqualified from driving for

12  months.1   Mr  Ponga  appeals  that  sentence  on  the  basis  the  Judge  failed  to

adequately consider whether Mr Ponga should be sentenced to community detention.2

1      Police v Ponga [2020] NZDC 15619.

2      Mr Ponga’s notice of appeal advanced two other grounds: that the Judge failed to give him credit for the extenuating circumstances of the offending and failed to give sufficient credit for the time in custody. These grounds were not addressed in the sentencing submissions received by the Court.

PONGA v POLICE [2020] NZHC 2774 [22 October 2020]

Facts

[2]    On 27 November 2019 at approximately 10.52 pm, Mr Ponga and his partner were travelling on the southern motorway when they were stopped by Police. The motor vehicle they were travelling in was reported stolen on 20 March 2019 and displayed false plates. Inside a bag in the centre console of the car, the Police found a cut down .22 rifle, a small rotary magazine attached to the rifle containing 11 .22 calibre bullets, a Ruger style magazine loaded with 23 .22 calibre bullets, a small plastic ammunition container containing 27 .22 calibre bullets, a patu and an axe. Upon being searched at the Police station, Mr Ponga was found to have two .22 calibre bullets in his trouser pockets.

[3]    The Department of Corrections had also applied to cancel a sentence of intensive supervision and community work imposed for two injuring with intent to injure convictions following Mr Ponga’s failure to comply with such sentences. With one of those offences, Mr Ponga had confronted a person about a dispute over that person taking a car and money. He punched the victim in the face, then went outside and punched him about the head on several occasions. The victim suffered an injury to the soft tissue of his face and fractures of the nose. With the other offence, the victim was Mr Ponga’s partner. At a party, she attempted to pull Mr Ponga away from a person with whom Mr Ponga was arguing. Mr Ponga put one hand around her neck and squeezed it to the extent she could not breathe. While driving home, Mr Ponga grabbed her by the hair and punched her on the left jaw. She suffered a fractured jaw in two places which required surgery and the insertion of five plates.

[4]    On each of these matters, Mr Ponga was sentenced on 29 November 2018 to 100 hours’ community work and two years’ intensive supervision. He was also to be subject to judicial monitoring. As at 11 November 2019, Mr Ponga had completed only 35 hours of the 100 hours’ community work sentence. He had failed to engage in counselling programmes to which he had been directed as part of his sentence of intensive supervision.

Disputed facts

[5]    While Mr Ponga agreed to the Police summary of facts, he contends he received the guns from a friend and was attempting to hand them to the Police as part of an amnesty agreement. He claimed three other guns were handed to the Police, and his lawyer provided an affidavit about the amnesty agreement.

[6]    There was information before the District Court which suggested Mr Ponga, or others, were seeking to obtain some credit on sentencing in return for a surrendering of firearms. There appeared to be nothing definite about what precisely was proposed or what, if any, credit would be given for that. I note that the summary of facts referred to the Police stopping the vehicle and finding the firearm at around 11.00 pm, an unlikely time for the firearm to be handed to the Police, especially so in a stolen car.

[7]    There has been some dispute as to whether the firearm was loaded. In the sentence indication hearing, Ms Gray for the appellant submitted the firearm was “not actually loaded…it is accepted that the magazine had bullets in it but the firearm itself did not”. Ms Gray referred to an amended summary of facts.3 For the Crown, Ms Norman submitted she has not received an amended summary of facts, the firearm was loaded, and refers to the formal statement of Chris Hickley who confirmed:

The cut down firearm was in the load state with a small rotary magazine attached. By ‘load state’ I mean there was a magazine with round attached to the firearm, however no round was chambered. I noted that the safety switch was selected to ‘fire’.

District Court decision

Sentence Indication

[8]    In his sentence indication, Judge Kellar considered the aggravating factors to be the firearm was easily accessible and cut-down with a pistol grip commonly used in offending or for personal protection, ammunition loaded in two magazines was located in the bag, Mr Ponga had ammunition on him, and there was a total of 63 rounds of ammunition. The Judge considered Mr Ponga’s explanation that he was

3      Police v Ponga DC Christchurch CRI 2017-009-10560, 19 June 2020 at [22].

endeavouring to hand the firearm to Police as part of an arranged amnesty agreement to assist another person awaiting sentence.

[9]    The Judge noted Mr Ponga’s personal aggravating factors were his firearms offending in 1999, 2003 and 2008. However, the Judge recognised as mitigating factors that Mr Ponga’s life had been characterised by violence and deprivation. He set a starting point of two years for the possession charges, an uplift of two months for the unlawfully getting into a motor vehicle charge, and four months for Mr Ponga’s history of offending, leading to a sentence of two years and six months. He then reduced the sentence by five to six months to recognise Mr Ponga’s mitigating factors and posited a further five months discount would be appropriate if a guilty plea was entered leading to a sentence of one year and seven months’ to one year and eight months’ imprisonment.

[10]   Considering Mr Ponga’s other charge for driving whilst disqualified and his period in custody and on electronically monitored (EM) bail, the Judge provided an end sentence of one year and four months to one year and six months’ imprisonment. He accepted the sentence could be served as home detention of between eight and ten months. He said he would not rule out the possibility of community detention but stated it would be tricky and would have to be completed in conjunction with another sentence.

Judge Neave’s sentence

[11]   Judge Neave considered Mr Ponga’s sentencing a difficult exercise. The Judge was asked to impose a sentence for the firearm possession and driving charges for which Mr Ponga had received a sentence indication. The Judge was also asked to resentence Mr Ponga on two charges of injuring with intent to injure for offending in March 2018 as Community Probation had applied to cancel the original sentence for those charges and applied for Mr Ponga to receive a prison term due to poor compliance.

[12]   Judge Neave noted that Mr Ponga’s judicial monitoring sentence collapsed due to further offending. Mr Ponga then spent approximately five and a half months in custody before being released on EM bail for three months. He had an existing

sentence of intensive supervision which suggested Mr Ponga was progressing, but the Judge considered there was a lack of intent and it was therefore impractical to continue with his community work sentence. The Judge cancelled those sentences.

[13]   Judge Neave considered Judge Kellar’s sentence indication did not provide specific allowance for the time Mr Ponga spent in custody and on EM bail. He reduced the sentence to recognise these factors but limited his reduction to account for the sentences he had cancelled. Judge Neave sentenced Mr Ponga to six months’ home detention.

Principles on appeal

[14]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R, quoting 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’”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.7

Submissions

Appellant’s submissions

[15]   Ms Gray acknowledged that, in all the circumstances, both with the indication and the ultimate sentencing, the sentencing exercise was difficult.

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

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

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

7      Skipper v R [2011] NZCA 250 at [28].

[16]   Ms Gray submitted Judge Neave erred in failing to consider community detention. She submitted community detention was appropriate because Mr Ponga’s children required his ongoing support. She acknowledged there were difficulties in Mr Ponga’s relationship with his partner but both parties were motivated to engage in counselling. She submitted a sentence of community detention coupled with supervision would allow him to take up an offer of employment and would provide the best means of addressing his rehabilitative needs.

[17]   Ms Gray pointed to R v Knauf where a community detention sentence was imposed to allow better contact with Mr Knauf’s children.8 In Nicholls v Police, Heath J upheld a sentence of community detention to allow Mr Nicholls to continue to work for the benefit of his family.9 Ms Gray submitted Mr Ponga’s family situation is a matter of primary importance, his home detention is at his uncle’s property away from his children and partner.

[18]   Evidence provided to the Court indicates Mr Ponga and his partner of 18 years have not had a perfect relationship, but they want to engage in relationship counselling. Together, Mr Ponga and his partner have five children ranging from 19 to eight years old. The eldest has a learning disability and requires ongoing care. Ms Gray submitted the only boy, aged 13, is missing his father and is having trouble at school. Mr Ponga provided a letter to the Court indicating he wishes to support his teenage son and family. Ms Gray also submitted Mr Ponga has rehabilitative needs as detailed by a letter provided to the Court from his mother.

[19]   Ms Gray submitted the importance of family commitments and his rehabilitative needs were such that Mr Ponga’s sentence should have been for community detention coupled with intensive supervision.

Respondent’s submissions

[20]Ms Norman’s submissions for the Crown are reflected in my analysis below.

8      R v Knauf HC Auckland CRI 2009-090-7949, 8 September 2009.

9      Nicholls v Police [2017] NZHC 2209 at [25].

Analysis

[21]   Mr Ponga’s main contention was that the overall sentence of home detention was not the least restrictive sentence available, and community detention should have been imposed. My analysis will therefore primarily focus on this issue.

[22]   I consider the end sentence of six months’ home detention was generous. I accept Ms Norman’s submission that Judge Neave made additional reductions against Judge Kellar’s indicated starting point for the time Mr Ponga had spent in custody and on EM bail on the basis Judge Kellar had not taken those matters into account. Judge Kellar had in fact reduced his initial sentence to account for those factors.10

[23]   After discounting Judge Kellar’s starting point, thinking the Judge had not taken those matters into account, Judge Neave then provided for an uplift for the two charges of injuring with intent to injure offending. The charges for which Mr Ponga was resentenced were serious. One victim had received a broken nose, the other a fractured jaw. The sentence originally imposed for that offending was 100 hours’ community work and two years’ intensive supervision. Because of the mistaken discounting for time spent on EM bail and the time Mr Ponga spent in custody, with the sentence imposed by Judge Neave, Mr Ponga avoided an additional sentence for that offending.

[24]   Judge Neave did not refer to the possibility of community detention in his sentencing remarks, however, that does not necessarily mean he did not consider it as a possible sentence. There was detailed reference in the pre-sentence report relevant to a consideration of community detention. In any event, the information before the Judge and before me indicated that a sentence of community detention would not have been appropriate for Mr Ponga.

[25]A Corrections’ report had stated:

Mr Ponga’s ability to comply with a community based sentence is questionable as he has previous non-compliance in his conviction history and is currently very non-compliant with his sentence of Community Work.

10     Police v Ponga, above n 3, at [12]-[14].

[26]   Mr Ponga served one month in prison due to poor compliance with community work in 2019. Corrections’ application to cancel intensive supervision dated 15 January 2020 noted “Mr Ponga reports sporadically but does not engage in the rehabilitative opportunities offered to him”.

[27]   Mr Ponga received what could be said to be a generous sentence for the original injuring with intent to injure charges. In part, that was because the sentencing Judge gave him a credit for his commitment to continuing work in terms of rehabilitation. It was accordingly relevant but disappointing that Mr Ponga had shown poor compliance with his sentence of intensive supervision, failed to attend certain counselling programmes as directed and had not shown any motivation to address a pattern of violence involving his partner.

[28]   Not only did Mr Ponga fail to engage with the rehabilitative aspects of his sentence of intensive supervision, he reoffended with the firearm and ammunition offences, the offence of unlawfully getting into a motor vehicle and driving while disqualified.

[29]   As Ms Norman submitted, community detention, of itself, would not be a rehabilitative sentence as the only condition that can be imposed is a curfew. It was no doubt for that reason Ms Gray submitted, combined with community detention, a sentence of intensive supervision should be imposed, with conditions to ensure Mr Ponga would be assisted with rehabilitative programmes. He was however being resentenced on the injuring with intent to injure charges because he failed to engage with programmes to which he was directed while previously serving a sentence of intensive supervision.

[30]   It was suggested that a sentence of community detention would permit Mr Ponga to take up employment on other properties near his uncle’s farm where he is currently sentenced to home detention. I was however told during the hearing of the appeal that he is permitted to leave the home detention address for such employment.

[31]   Mr Ponga’s partner would like his assistance with the children. Even with a sentence of community detention, Mr Ponga’s ability to do this would be limited.

There is no suggestion Mr Ponga would be able to live with his partner if on community detention. He remains disqualified from driving so would be unable to assist with the children’s transport and activities. With home detention, it is possible for the children to see him at his uncle’s address. Given the domestic violence that has occurred in the past, including an incident that led to one of the injuring with intent to injure offences for which Mr Ponga had to be resentenced, there is likely to be some benefit for the family if Mr Ponga’s contact with his children and his partner is to take place at his uncle’s address.

[32]   In Nicholls v Police, the High Court upheld a decision of the District Court to sentence an offender to community detention. The Judge was only persuaded to grant community detention because the offender had been to several programmes and engaged thoroughly with rehabilitative options.11 This indicated to the Judge it would be beneficial for the children for Mr Nicholls to be able to continue to work in the community. This is not the case here. Mr Ponga has not, as Ms Norman indicated, always engaged with the rehabilitation opportunities offered to him.

[33]   A Court may only impose community detention if satisfied the sentence would achieve the s 7 Sentencing Act 2002 purposes of accountability, responsibility, denunciation and deterrence.

[34]   I consider a sentence of community detention would not serve the purposes of deterrence, denunciation and accountability in this case. Mr Ponga was being sentenced for serious firearms offending. He was also being resentenced on the two injuring with intent to injure charges because of his failure to attend a sentence of community work and intensive supervision. Mr Ponga had shown a disregard for previous community-based sentences. The PAC report noted Mr Ponga posed a medium to high risk of reoffending given his inability to comply with sentences in the past. His previous community-based sentences have not had the requisite deterrent and denunciating effect. All this indicates community protection would not be best served by granting community detention.

11     Police v Nicholls [2017] NZDC 17873 at [10]

[35]   For all these reasons I consider the sentencing Judge was correct in deciding that home detention was the least restrictive sentencing option available in all the circumstances. I do not consider there was any error in the District Court sentencing through the Judge not expressly discussing the option of community detention. The sentence imposed had to provide for denunciation and accountability, and for protection of the community.

[36]   Mr Ponga does have rehabilitative needs. Other Judges have noted that, despite his lack of engagement in appropriate rehabilitative programmes, his pattern of offending is diminishing in seriousness. While serving his sentence of home detention, he has the ability to keep working on the changes and doing all he can to further reduce the risk of offending in the way he has done in the past. That is how he can best ensure he is available to provide positive support for his family.

[37]The appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch.