R v Ponga - [2014] NZHC 677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-1626 [2014] NZHC 677

THE QUEEN

v

JERMAINE MATIU PONGA SEMISI TAPUELUELU

Hearing: 4 April 2014

Appearances: S L McColgan for Crown
N G Cooke for Defendant Ponga
A J Holland for Defendant Tapueluelu

Sentence: 04 April 2014

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland
N G Cooke, Auckland
Public Defence Service, Auckland

R v PONGA [2014] NZHC 677 [4 April 2014]

Introduction

[1] Mr Tapueluelu you are for sentence on one charge of causing grievous bodily harm to Wiremu Erueti, with intent to injure him.1 This offence occurred on
8 December 2012 and you pleaded guilty to it on 24 February 2014. The maximum penalty for the offence is seven years’ imprisonment.

[2] Mr Ponga, you are for sentence today for injuring Daniel Ruka with intent to cause grievous bodily harm.2 This is a serious charge, the maximum penalty for which is 10 years’ imprisonment. You were convicted of this charge following a jury trial at which I presided in February 2014.

[3] I have given each of you a “first strike” warning on conviction. I do not propose to repeat it today.

Facts

[4] The offending occurred at a house in Avondale. A group of four of you, or at least four of you, went to that house late on a Saturday night where the occupants and their friends were having a small party. If your group was invited to that party, it was only by someone with a slight connection to the group that were there. All who gave evidence before me said that they did not know the four of you, that they did not like the fact that you were there, and that they would have much preferred that you were not.

[5] A fight broke out. I am satisfied that one of your group started it and that it was unprovoked.

[6] Mr Tapueluelu, you punched Mr Erueti and knocked him to the ground. Mr Erueti gave evidence in Mr Ponga’s trial. There can be no doubt that you are much bigger than he is. Under no circumstances could a fight between you and Mr Erueti be described as an even contest. He came away from that with his jaw
broken in three places – one in his chin and one under each ear. He spent five days

1 Crimes Act 1961, s 188(2).
2 Ibid, s 189(1).

in hospital, had stitches, three metal plates inserted to hold his jaw together and had braces put on his teeth. Mr Erueti could not eat solid food for three months and, not surprisingly, lost a lot of weight.

[7] Mr Ponga, your victim was another guest, Daniel Ruka. Mr Ruka ended up lying on a concrete driveway, face up, incapable of defending himself, while you and I believe another person, kicked him in the head. I am satisfied that you kicked Mr Ruka in the head at least twice, whilst he was down…

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 R v Ponga

Details

AGLC: R v Ponga [2014] NZHC 677
Case: [2014] NZHC 677
Decision Date: 4 April 2014

CaseChat Overview and Summary

The case of R v Ponga involved the sentencing of Jermaine Matiu Ponga Semisi Tapueluelu and Jermaine Matiu Ponga for their respective roles in violent incidents that occurred on 8 December 2012. Tapueluelu was charged with causing grievous bodily harm to Wiremu Erueti with intent to injure, while Ponga was charged with injuring Daniel Ruka with intent to cause grievous bodily harm. Both defendants were sentenced following their convictions, Tapueluelu having pleaded guilty and Ponga having been convicted following a jury trial. The legal issues before the court were to determine the appropriate starting point for sentencing, to adjust this starting point based on aggravating and mitigating factors, and to consider the defendants' personal circumstances and the principles and purposes of sentencing.

In delivering the sentencing remarks, the court first outlined the facts of the case, noting that the defendants were part of a group that instigated an unprovoked fight at a house party. Tapueluelu was found to have punched Erueti, causing severe injuries including a broken jaw, while Ponga was found to have kicked Ruka in the head multiple times while he was incapacitated, resulting in life-threatening injuries. The court also considered the personal circumstances of both defendants, including their criminal histories and potential for rehabilitation. The court emphasised the seriousness of violence, particularly against the head, and the need for deterrence.

The court then addressed the principles and purposes of sentencing, highlighting the importance of accountability, consistency, and rehabilitation. The court set a starting point for sentencing based on the seriousness of the offending and adjusted this starting point based on personal factors. For Tapueluelu, the court determined a starting point of two years and two months' imprisonment, adjusted for mitigating factors such as his guilty plea and time spent on bail, resulting in a final sentence of one year and seven months' imprisonment. For Ponga, the court determined a starting point of four years' imprisonment, resulting in a final sentence of four years' imprisonment. Both sentences reflected the gravity of the offences and the need for appropriate deterrence and rehabilitation.

Orders