R v Tonga - [2024] NZHC 1770

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]…

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 Tonga

Details

AGLC: R v Tonga [2024] NZHC 1770
Case: [2024] NZHC 1770
Decision Date: 2 July 2024

CaseChat Overview and Summary

Viliami Tonga appeared in the Auckland Registry of the High Court of New Zealand to be sentenced on a charge of common assault, following a guilty plea. The Crown opposed an application for a discharge without conviction. The court was required to determine whether the consequences of a conviction would be out of all proportion to the gravity of the offence, and if not, to decide on an appropriate sentence.

The court assessed the gravity of the offence by considering the circumstances and personal background of the defendant. The defendant was part of a gang convoy that accosted an innocent motorist, causing physical damage and psychological harm. While the defendant's guilty plea, youth, and background were mitigating factors, the court found the gravity of the offence to be at the low-to-middle end of the spectrum. The consequences of conviction included potential delays in applying for citizenship and difficulties in employment, though the court found these consequences were not out of all proportion to the gravity of the offence. The court then proceeded to sentence the defendant to two months' home detention, considering the mitigating factors and the defendant's rehabilitative prospects.

The court concluded that the defendant's application for a discharge without conviction should be declined. The sentence imposed was two months' home detention, reflecting the need for accountability, denunciation, deterrence, and rehabilitation. The court emphasized the defendant's potential for positive change and encouraged him to use this incident as a learning experience.

Orders