R v Tonga
[2024] NZHC 1770
•2 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-004-8998
[2024] NZHC 1770
THE KING v
VILIAMI TONGA
Hearing: 2 July 2024 Appearances:
H Steele for the Crown A Zhao for Mr Tonga
Sentence:
2 July 2024
SENTENCE OF MOORE J
Meredith Connell, Auckland
Public Defence Service, Auckland
R v TONGA [2024] NZHC 1770 [2 July 2024]
[1] Mr Tonga you appear before me having pleaded guilty to one charge of common assault.1
[2] You apply for a discharge without conviction which the Crown opposes. My task this morning is to decide whether to grant your application for a discharge without conviction, and, if I decide it should be declined, to sentence you accordingly.
The offending
[3] The facts of your offending are as follows. On the morning on 5 August 2023, members of FITUS, an Otahuhu/Mangere-based gang affiliated with the Rebels became aware of a prearranged fight that was to occur that day in Taurima Reserve in Point England. The fight was to be between the Rebels and Head Hunters.
[4] Ahead of the confrontation, you made your way to the Rebels gang pad on Nikau Road in Otahuhu. A convoy of vehicles then left the gang pad bound for the Taurima Reserve. You were one of two passengers in one of these vehicles, driven by another co-defendant.
[5] Your charge of common assault arises from what happened enroute to the prearranged fight.
[6] At around 1:35pm that day, the complainant, who was unknown to you and who I shall refer to as A, is believed to have changed lanes on Great South Road in Otahuhu. In doing so, he unwittingly merged his vehicle into your convoy. This seemingly innocuous act appears to have cause outrage amongst your number. You and your co-defendants got out of your car when traffic stopped at a red light. You all accosted A. You all demanded he get out. Sensibly he didn’t. You all kicked the door panels of his vehicle. One of your co-defendants smashed A’s front passenger window with his elbow.
1 Crimes Act 1961, s 196. Maximum penalty one year imprisonment.
[7] Another co-defendant, travelling in a separate vehicle, also got out of his car. He kicked the driver-side panels of A’s vehicle and, standing next to the driver-side window, pointed a pistol at A threatening to shoot him if he did not get out.
[8] It was only when the traffic lights changed and members of the public began moving forward that you and your other co-defendants got back into your cars and drove away.
[9] In an attempt to memorise number plates, A followed the convoy. However, he stopped when one of the convoy (not you) pulled alongside. A firearm was presented and A was told to “fuck off”.
[10] At Taurima Reserve, shots were fired and a man later died of gunshot wounds. You were struck too. You suffered two gunshot wounds to your upper left thigh.
[11] I emphasise however that you have not been charged in relation to the confrontation which played out in the reserve let alone the charge of murder which some of your other co-defendants face.
[12] You are here solely for sentence on the charge of assaulting A, although the background which I have described is relevant to your offending’s context.
Should Mr Tonga be discharged without conviction?
[13] The first question I must decide is whether to grant your application for a discharge without conviction.
Applicable principles
[14] So, what is the law? A discharge without conviction may be granted whenever the consequences of a conviction would be out of all proportion to the gravity of the offence.2
2 Sentencing Act 2007, ss 106 and 107.
[15] That assessment involves a three-step process: first, identifying the gravity of the offence; secondly, identifying the direct and indirect consequences of a conviction and finally, asking whether those consequences are out of all proportion to the gravity of the offence identified.3
[16] Assessing the gravity of the offence involves considering all the aggravating and mitigating factors relating to the offending and the offender.4
[17] In light of the applicable law set out, I start first by assessing the gravity of your offence.
Gravity of the offence
[18] The answer to this question has been usefully answered in part because one of your co-defendants, Mr Lavemai, was sentenced by Lang J having pleaded guilty to the same charge.5
[19] In sentencing Mr Lavemai, Lang J identified four aggravating features of the offending being that Mr Lavemai was part of a group that had confronted and threatened an innocent motorist; that considerable damage was caused to A’s vehicle; that A was at serious risk of physical violence had he followed the demand to get out of his car and that the offending had caused A ongoing psychological harm.6
[20] Acknowledging that Mr Lavemai was not directly involved in the threats that had been made to A nor the damage to his vehicle, the Judge adopted a starting point of eight months’ imprisonment. As your counsel responsibly accepts, the same aggravating features and thus starting point apply here.
[21] Your counsel submits that, for the purposes of s 106 of the Sentencing Act 2002, the gravity of your offence is, however, lessened by your guilty plea; your youth; and your background. I generally agree.
3 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
4 At [27].
5 R v Lavemai [2024] NZHC 835.
6 At [6].
[22] You entered your guilty plea at trial call-over roughly four months after your first court appearance. This was after the disclosure of material relating to your identification was received in March 2024. I agree that if you are to be sentenced, a discrete reduction of 20 per cent would be justified.
[23] I am less amenable over the availability of a youth discount in your case. You were 25 at the time of this offending. You are now 26. You sit at the outer limit of youth discount availability. Even so, it is a relevant factor despite that and I take it into account.
[24] More significantly however, I accept that the gravity of your offending is lessened by your background and by what you experienced in the lead up to the events on 5 August 2023. I take what follows largely from an affidavit you have provided, and from a letter penned by your stepfather.
[25] You and your five siblings were all raised by your mother, who worked as a Kindergarten teacher. You grew up in Tonga. You came to New Zealand with your brother in 2012, a year after your mother relocated here with your other siblings. On your arrival, you started at Otahuhu College.
[26] In 2016, you were charged with assault with intent to injure arising out of a school fight when you were in Year 13. You received a discharge without conviction. In your affidavit, you explain that you dropped out of school as a result. The decision granting you a discharge explains that you were expelled.7 After leaving High School, you completed a building course and began working full-time in the building industry. In 2017 you started a two-year mission through the Mormon Church. On your return to Auckland in 2019, you continued working as a builder and then moved into civil construction.
[27] In 2020, your mother was diagnosed with leukaemia. She died in June 2023. You explain that you struggled with your mother’s death. You say that everything you had done to change your ways since 2016 began to unravel. You started to drink and began socialising with people that you had tried to distance yourself from in High
7 Police v Tonga [2016] NZDC 25292 at [5].
School. Your stepfather says that to this day you continue to battle with the loss of your mother.
[28] You explain however that you have been sober since the day of your offending. You say you have tried to immerse yourself in your church community. You say you also want to get back into boxing. You also explain that you have enrolled in a 12- week course in Roading and Earthworks, and that it is your hope that once complete, you will be able to return to civil construction. You tell me that you have not yet started this course, but that you plan to do so as soon as your “court matters” are over. You also explain that you now live with your stepfather in Otahuhu. It is plain he provides a strong pro-social influence in your life.
[29] While your earlier discharge without conviction generally weighs against the grant of another discharge,8 I consider the effect that your mother’s death had on you to be a clear causative contributor to your offending. This is because after your discharge without conviction in 2016, and before your mother died, you were living a positive and productive life. Were you to be sentenced, I would consider a reduction of 20 per cent to be warranted on account of this factor, your youth and previous good character and for your rehabilitative prospects.
[30] For all these reasons, I consider the gravity of your index offending to be at the low-to-middle end of the spectrum. In doing so, I take into account that the attack against A was entirely gratuitous; that your role was similar to Mr Lavemai’s; and that your culpability is lessened by reason of your personal circumstances, as discussed.
Consequences of conviction
[31] I next turn to the consequences of conviction. Your counsel submits there are two: that you will be disadvantaged in applying for citizenship and that you will be further disadvantaged in seeking future employment.
[32] As for the first, an affidavit from an immigration lawyer, Ms Curtis, has been filed. In it, Ms Curtis explains that you would still need to declare that you have been
8 MacDonald v R [2019] NZCA 91 at [28].
“investigated, reviewed or had legal action taken against [you]” by the Police even if you were discharged without conviction.
[33] Ms Curtis explains that if convicted and sentenced, you may not be immediately eligible for a grant of New Zealand citizenship. This is because s 9A of the Citizenship Act 1977 provides that the Minister of Internal Affairs must not authorise a grant of citizenship within the preceding three years in which a person is convicted of an offence for which they did not receive a sentence of imprisonment unless there are exceptional circumstances relating to the conviction such that citizenship should not be precluded. Importantly however, Ms Curtis also explains that as you have held a residence visa for more than two years, a conviction will not put your residence visa at risk of cancellation.9
[34] You explain that you wish to visit your sister in Australia and hope to migrate there yourself in the future. You say that being a citizen of New Zealand will enable you to travel and work in Australia freely, but that your present residence visa will not.
[35] In light of Ms Curtis’ helpful affidavit, I consider the true consequence to be that you will be delayed in applying for citizenship but not precluded from it. And, importantly, even if granted a discharge without conviction, you would still have to disclose the fact of your offending in applying for citizenship. I also agree with the Crown that I should exercise caution and restraint before effectively taking over the function of the Minister of Internal Affairs whose job it is to assess character-related issues for citizenship.
[36] The second stated consequence of conviction is the effect that a conviction will have on your prospects of employment. Given the conviction involved, your counsel submits that you are at a real and substantial risk of being disadvantaged in your employment prospects because employers may be unwilling to look behind your conviction for assault. Your counsel also emphasises that you have not been able to gain an established pattern of employment to displace any stigma which might arise from a conviction, and that your educational background is limited.
9 Immigration Act 2009, s 161(1)(a)(iii).
[37] Even accounting for your two-year mission through the Mormon Church, you have still had – on your own evidence – at least three years working in the building industry and then later in civil construction. In that respect, I consider it goes too far to say that you have not been able to gain an established pattern of employment. Even so, I accept that a conviction will make finding employment more difficult. The question is whether that difficulty is out of all proportion to the gravity of your offence.
Are the consequences out of all proportion?
[38] And so, I come to the central question on this application: whether the consequences you are likely to face if a conviction was entered are out of all proportion to the gravity of your offending.
[39] As the Crown rightly emphasises, it is not enough that the consequences of a conviction merely outweigh the gravity of your offending.10 They must, as s 107 of the Sentencing Act says, be out of all proportion to it.
[40] Here, the consequences of conviction are that you will likely be delayed by three years in applying for citizenship and that you will, as a consequence of your conviction, find it more difficult to gain employment than you otherwise might if you were conviction-free.
[41] I find the consequences that a conviction will have on your prospects of successfully applying for citizenship not to be out of all proportion to the gravity of the offence. Importantly, you would still have to disclose your offending in applying for citizenship. You are also not at risk of your residence visa being cancelled. While travel to Australia may be made more difficult than if you had no conviction at all, there is nothing before me to suggest that you will not be able to travel to Australia at all in the future. Notably, Ms Curtis does not offer an opinion on this despite her expertise in this area.
[42] The greater and more difficult question is whether the effect a conviction will have on your employment prospects are out of all proportion to the gravity of your
10 R v Hughes [2017] NZCA 530 at [12].
offence. The effect that a conviction will have on a defendant’s employment prospects is generally regarded as a usual consequence, and one that does not trump an employer’s right to know.11 However, such consequences may be out of all proportion where the Court is satisfied that employers may be unwilling to look behind a conviction or where the offending may exclude a defendant from a particular type of employment being sought.12 Such risks may arise where a conviction labels a person as violent but does not fairly reflect that person’s character or culpability.13
[43] While I accept that a conviction for common assault will be prejudicial to your employment prospects, the difficulty, Mr Tonga, is that there is little in the way of evidence to show that a conviction will seriously stand in your way of qualifying to work in the civil construction industry. Indeed, your counsel has confirmed that it is not a condition of the Roading and Earthworks programme that you have applied for that you must not have criminal convictions. As for whether your conviction may be one that some employers are unwilling to look behind, I accept that your offending does not define you or fairly reflect your character. Clearly, the offending was an aberration in your life. The difficulty is that in light of the gravity of your offence – and the particularly serious nature of the offending itself – I cannot say that the disadvantage rises to the required threshold.
[44] In light of your career history and the qualification you intend to pursue, I struggle to see how the disadvantage that you might face in seeking employment as a consequence is out of all proportion to the gravity of your offence here.
[45] For these reasons, I decline your application for a discharge without conviction.
What is the appropriate sentence?
[46] Having declined your application for a discharge without conviction I must now proceed to sentence you on the charge of common assault to which you pleaded guilty.
11 R v Taulapapa [2018] NZCA 414 at [42(a)].
12 At [42(b)].
13 At [42(b)].
[47] In sentencing you I have in mind the need to hold you accountable for the harm you caused A, to denounce your conduct, to deter others from committing the same or similar offending and also the need to assist in your rehabilitation and reintegration.
[48] In sentencing you, I must adopt a two-stage process of setting a starting point based on the seriousness of your offending before adjusting that starting point – up or down – to take account of your personal circumstances.14
[49] As I indicated in the preceding discussion, I adopt a starting point of eight months’ imprisonment.
[50] From this, I make reductions of 20 per cent for your guilty plea and a further 20 per cent to recognise:
(a)first, that your mother’s death in 2023 was a causative contributor to your offending;
(b)secondly, that you were relatively young at the time of your offending
– being 25;
(c)thirdly, that you had a seven-year period of demonstrable good character after your offending in 2016; and
(d)fourthly, that your rehabilitative prospects are strong.
[51] From a starting point of eight months’ imprisonment, that brings me to an end sentence of five months’ imprisonment which allows me to consider the appropriateness of home detention. Home detention was, of course, the sentence imposed by Lang J on your co-defendant.
[52] Your counsel Mr Zhao suggests community detention which he said might make your rehabilitative endeavours easier than home detention. He also referred to intensive supervision.
14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[53] I am satisfied by the material I have seen that your efforts at rehabilitation to date are cause for optimism and that you understand the importance of self- improvement.
[54] In your case, I am satisfied that home detention is the appropriate and least restrictive sentence in the circumstances. I therefore adopt an end sentence of two months’ home detention, rounded down.
[55] Before I formally hand down sentence, I want to make a couple of comments. You made some unwise decisions about who you mixed with and you ended up in trouble as a result. You have shown you have the insight to recognise the dangers of that. You have a very supportive stepfather and whanau. It is obvious you are a young man with considerable promise. You have goals and aspirations which you are on track to realising. Don’t let this most recent mistake define you because it is not who you are. You are better than that.
Result
[56] Mr Tonga, please stand. On the charge of common assault I sentence you to two months’ home detention to the address, and on the conditions set out, in your pre- sentence report.
[57]Stand down.
Moore J
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