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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ponga v Police

Details

AGLC: Ponga v Police [2020] NZHC 2774
Case: [2020] NZHC 2774
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of Ponga v Police involved an appeal by Mr Ponga against his sentence of six months’ home detention and disqualification from driving for 12 months, imposed by the District Court. Mr Ponga was found guilty of unlawful possession of a firearm, unlawful possession of ammunition, unlawfully getting into a motor vehicle, and driving while disqualified. He contended that the sentence was too lenient and that community detention should have been imposed instead. The High Court was required to determine whether the District Court judge had erred in sentencing by not considering community detention, and if so, whether the sentence was manifestly excessive.

The Court found that the District Court judge had not erred in imposing home detention instead of community detention. The judge had considered the mitigating factors but also the aggravating factors, including Mr Ponga's history of non-compliance with previous community-based sentences and his failure to engage with rehabilitation opportunities. The judge was satisfied that home detention was the least restrictive sentence available in all the circumstances, and that it would provide for denunciation, accountability, and community protection. The Court also noted that while Mr Ponga had rehabilitative needs, he had the opportunity to address them during his sentence of home detention. The appeal was dismissed.

The final orders of the Court were that the appeal against sentence was dismissed. Mr Ponga's sentence of six months’ home detention and disqualification from driving for 12 months, as imposed by the District Court, was upheld.

Orders