Pongipongi v Police - [2017] NZHC 1133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000118 [2017] NZHC 1133

BETWEEN
SIONE PONGIPONGI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 May 2017

Appearances:

S Oliver for Appellant
J Bull for Respondent

Judgment:

29 May 2017

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:
Meredith Connell, Auckland
Public Defence Service, Auckland

PONGIPONGI v POLICE [2017] NZHC 1133 [29 May 2017]

Introduction

[1] On 29 March 2017 in the Auckland District Court, Sione Pongipongi was sentenced to nine months imprisonment on one charge of assaulting his partner with intent to injure her. He now appeals against sentence on the basis that the sentencing Judge should have exercised his discretion to allow him to serve his sentence by way of home detention.

Facts of offending

[2] The offending happened over a year earlier, on 18 February 2016. The agreed summary of facts recorded that the victim of Mr Pongipongi’s offending was his partner of five and a half years with whom he had a four year old son and who was also eight weeks pregnant with their second child at the time.

[3] On the evening of 18 February 2016, Mr Pongipongi and his partner were at their home address. During the course of the evening Mr Pongipongi consumed about 16 cans of beer. He became angry with his partner about a household chore she had not completed. He started swearing, yelling and verbally abusing her.

[4] Mr Pongipongi entered the bedroom where his partner was putting their son to bed. He approached his partner by pretending to throw a beer can at her. As his partner got off the bed where their son was lying, Mr Pongipongi grabbed her by the neck and threw her back down. He then held her down.

[5] As his partner stood up, Mr Pongipongi grabbed her by the hair and threw her to the ground. He kept hold of her hair and swung her around, slamming her head into the floor. Mr Pongipongi slapped her in the head once with a closed fist.

[6] His partner tried to call her mother on her mobile phone, but Mr Pongipongi attempted to knock the phone away from her. Mr Pongipongi briefly left the room, but then came back and continuously punched her with a closed fist in the back of the head as she was crouching on the floor. His partner ended up lying on the floor, facing away from Mr Pongipongi. Mr Pongipongi then told her “I’m going to get rid

of the baby. You are not going to have another one to me.” Mr Pongipongi subsequently left the room, but remained at the property until police arrived.

[7] The victim suffered a sore chest. Her neck was also red and bruised. She received swelling to her face and on the left and right cheeks and scratches to her left shoulder. In explanation, Mr Pongipongi stated he lost his temper when he was called lazy.

Criminal history

[8] Mr Pongipongi has a moderate criminal history built…

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.

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Details

Case: [2017] NZHC 1133
Decision Date: 29 May 2017

CaseChat Overview and Summary

Sione Pongipongi appeals against his sentence of nine months imprisonment imposed by the Auckland District Court for assaulting his partner with intent to injure her. The sentencing Judge should have exercised his discretion to allow Mr Pongipongi to serve his sentence by way of home detention. The legal issues for the court to decide were whether the sentencing Judge erred by considering factual allegations outside the agreed summary of facts, and whether the Judge gave too little regard to considerations in favour of an electronically monitored sentence. The court found that the sentencing Judge erred by considering allegations outside the agreed summary of facts, but that this error did not lead to the imposition of a sentence of imprisonment. The court also found that the Judge did not sufficiently consider home detention as a possible sentence. The court quashed the sentence of imprisonment and imposed a sentence of four months home detention instead, to be served at the home detention residence identified in the pre-sentence report. Special conditions were also imposed that Mr Pongipongi is not to possess, consume or use any alcohol or drugs not prescribed; if assessed as suitable to attend, he is to participate in and adhere to the rules of a relapse prevention group as directed by and to the satisfaction of a probation officer; and he is to undertake and complete the recommended Departmental programme, if directed to do so by the probation officer and abide by the rules of the programme to the satisfaction of a probation officer. The sentence of home detention is to commence on a date to be specified by a probation officer.

Orders