R v Tonga

[2019] NZHC 712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-4671

[2019] NZHC 712

THE QUEEN

v

SHANE MONU HE FOTU TONGA

Hearing:	5 April 2019
Counsel:	DG Johnstone for Crown SNB Wimsett for defendant
Sentenced:	5 April 2019

SENTENCING NOTES OF FITZGERALD J

Solicitors:           Crown Law Office

To:  S Wimsett, Auckland

R v Tonga [2019] NZHC 712

[1]    Mr Tonga, on 19 February 2019, I gave you a sentence indication on one charge of wounding with intent to cause grievous bodily harm, of four years and eight months’ imprisonment. That would be served cumulatively on your existing sentences, and served in full, given at the time of the present offending, you were already on your first strike.

[2]    You accepted that sentence indication the same day and entered a guilty plea before me. You therefore appear today for formal sentencing.

Facts

[3]    I will now summarise the factual background from the agreed summary of facts. You and the lawyers who are here today are no doubt aware of the factual background. But is it also important that the public are aware of the basis upon which I am sentencing you today.

[4]    Mr Tonga, you and four co-defendants involved in the offending are members of either the Black Power or Crips gangs. The victim is a member of the Mongrel Mob gang. You were all at the relevant time serving prisoners in the maximum- security unit at Auckland Prison at Paremoremo.

[5]    The offending involved a pre-meditated and prolonged attack on the victim. The attack began when two of your co-defendants approached the victim when out of the cells on a reasonably narrow landing during what is known as “landing time”. Those co-defendants began to punch and hit the victim. You then joined in, kicking the victim in the abdomen and in the head. A co-defendant pulled out a metal shank and repeatedly stabbed the victim. You then retrieved a broom that was on the prison landing, kicked the victim a number of times, and then struck the victim repeatedly with the broom handle. When the handle broke, you continued to strike him with a sharp piece of broken broom.

[6]    Throughout the attack the victim was in the foetal position on the ground, offering no resistance. When he tried to get away, you punched the victim three times to the head.

[7]    While the assault was ongoing, your group prevented Corrections officers from entering the space and providing assistance to the victim. One of your co-defendants, Mr Rangitoheriri, smeared the victim’s blood across the cell doors of other Mongrel Mob members in the cell block.

[8]    The victim suffered life threatening injuries including numerous stab wounds; the summary of facts records he was stabbed at least 33 times. He required urgent surgery and a blood transfusion.

[9]    This was a violent and disturbing inter-gang attack within a maximum-security prison environment. I accept, however, that insofar as you are concerned, the summary of facts does not demonstrate your offending was premeditated, with your involvement and choice of weapon being somewhat opportunistic. You have stated to the writer of the pre-sentence report that has been provided to me that your participation on the day was in a sense revenge, in that you say members of the Mongrel Mob gang had attacked you the week earlier. I do not have any information about any such earlier incident, but you have said that you “should have just left it”, which is of course right. You did, however, participate, and when you did, you did so fully and meted out serious violence to the victim.

Analysis

Starting point

[10]   In deciding what sentence should be imposed on you, I have first considered what we call a starting point. It is common ground between the lawyers and the Court that the starting point is influenced by the bands in a case called Taueki.1

[11]   Here, the offending had a number of the aggravating features identified in that case:

(a)It involved extreme violence over a prolonged period, involving five assailants against one victim;

1      R v Taueki [2005] 3 NZLR 372.

(b)The victim’s injuries were life-threatening;

(c)It involved the use of weapons, including both the shank and the broom handle; and

(d)It was also gang-related violence.

[12]   The Crown and your lawyer have each referred me to a number of other cases involving violent prison attacks which are helpful in assessing a starting point.2 Another useful guide is Wylie J’s recent sentencing of one of your co-defendants,  Mr Rangitoheriri.3 Wylie J considered that Mr Rangitoheriri’s offending warranted a start point of nine years’ imprisonment.

[13]   I consider your offending and culpability to be slightly less serious than that of Mr Rangitoheriri. You did not stab the victim, so you are not responsible for the most serious injuries. Taking this into account, and also the guidance from the other cases I have read, I therefore agree with your lawyer’s submission that the starting point ought to be somewhat less than that adopted for Mr Rangitoheriri.

[14]   As I noted in my sentencing indication to you, I adopt a starting point of eight years, six months’ imprisonment.

Adjusting for personal factors

[15]   I now turn to whether the starting point I have adopted should be adjusted up or down for factors relating to you, rather than the offending itself.

[16]   At the time of the offending, you were serving a prison sentence for wounding with intent to cause grievous bodily harm. This was one of seven charges for which you were sentenced in May 2016. The wounding with intent charge (but not the other six, being various assault charges) was a first-strike offence. That results in the present

2      Including R v Shepherd HC Auckland, CRI 2007-044-9145, 19 October 2010; Lake v R [2017] NZCA 39 and R v Wereta [2014] NZHC 2555.

3      R v Rangitoheriri [2018] NZHC 2355.

charge being your second-strike offence. As you know, this means you are required to serve the sentence I give you today in full, without parole.4

[17]   At the sentence indication hearing, the Crown sought an uplift of one year to the starting point, to reflect that you were a serving prisoner when you offended, as well as to recognise your conviction history. Mr Wimsett, on the other hand, submitted that an uplift of no more than six months was appropriate.

[18]   Normally, both the fact that you were a serving prisoner when the present offending occurred, and your conviction history would warrant an uplift, in my view, in the vicinity of what the Crown sought. However, the courts have recognised that in a second-strike context, this may need adjustment, or an uplift may not be appropriate at all, when the earlier convictions were not second-strike offences but the uplift for them would nevertheless be served in full.5 The sentencing court must therefore consider these matters and the purposes and principles of sentencing to ensure there is no “double counting”.

[19]   In this case, six of your seven related prior convictions were not strike offences, and the seventh, the wounding with intent to cause grievous bodily harm, as already noted, triggered the present second strike.

[20]   Nevertheless, I consider an uplift is warranted for your prior relevant convictions, despite the loss of parole. They involved violence, including wounding with intent to cause grievous bodily harm. It is this sort of repeat offending at which the three-strikes legislation is aimed.

[21]   But I do not consider a total uplift of one year as sought by the Crown is appropriate. That would, in my view, involve an element of double counting. I agree with your lawyer that a total uplift of 6 months is warranted. I also take into account that your conviction history appears less serious than that of Mr Rangitoheriri, in respect of whom Wylie J adopted an overall uplift of one year.

4      Sentencing Act 2002, s 86C(4).

5      Wipa v R [2018] NZCA 219 and Paerau v R [2018] NZCA 139.

[22]   After the sentence indication, Mr Wimsett filed a memorandum outlining your personal circumstances “by way of mitigation”. The memorandum outlines a difficult upbringing in which you developed anti-social behaviours from around  the age  of  7 years old. It also describes the difficulties you faced moving from Tonga to New Zealand aged 17, which ultimately led to you living in a gang house.

[23]   The Supreme Court has made clear that the personal circumstances may be relevant either because there is some link between a person’s circumstances and their offending, or on purely compassionate grounds.6 However, in my view, no further discount is warranted based on the new information from Mr Wimsett. While I accept that you have faced difficulties in your life, there is no suggestion these difficulties are such that they affect your moral culpability for the offending.

[24]   I am also not persuaded that there are grounds to grant a discount despite a lack of connection between your background and offending; such discounts are normally reserved for extreme cases.7

[25]   Mr Wimsett’s memorandum also suggests the landing where your offending took place provides inadequate space for prisoners, particularly when there are gang animosities, such that it creates (in his words) “a hot-bed of tension”. It is suggested in the memorandum that “it cannot be a surprise to anyone that serious violence is the result” in such a space, and says that the mix of prisoners from different gangs in such a confined space meant they were “doomed to reoffend”.

[26]   A similar submission was made to Wylie J when sentencing Mr Rangitoheriri. Like Wylie J, I can understand that submission, but it does not justify the violence which occurred. In my view it would therefore be inappropriate to grant you a discount because of the description of the prison landing and the co-location of different gangs in the same wing.

[27]   I do not see a basis for any further discounts for personal matters. You are disappointed at facing a longer sentence of imprisonment, and that is inevitable. You

6      R v Jarden [2008] NZSC, [2008] 3 NZLR 612 at [14].

7      Simon France (ed) Adams on Criminal Law — Sentencing (looseleaf ed, Thomson Reuters) at [SA8.10].

do not show any real remorse, although I note your comment that you should have just left matters, which you should have. I also note your comment that once you are released, you want to live a more “straight life”. Mr Tonga, I really hope that that is the case; when you are released, you will still be relatively young, and could contribute usefully to society, rather than continue the downward and ultimately sad path that you have taken to date.

Guilty plea

[28]   I now turn to your guilty plea. You are entitled to a discount to your sentence to reflect the fact you have pleaded guilty to the present charge. At the sentencing indication, the Crown proposed a discount of around 15 per cent. It highlighted both the lengthy time between you being charged and seeking a sentencing indication, the proximity of your trial, and the strength of the prosecution case (as the attack was caught on CCTV camera). It said this level of discount is also appropriate in light of the full 25 per cent discount given to Mr Rangitoheriri for his guilty plea, when his plea was entered at a much earlier stage.

[29]   Your lawyer, however, sought a 20 per cent discount. Mr Wimsett advised that there have been a number of difficulties in communicating with you; you had been moved between prisons meaning letters of advice had not reached you; there were difficulties organising meetings with prison staff; and English is not your first language. Mr Wimsett informed the Court that were it not for these practical difficulties, a sentencing indication would have been sought much earlier.

[30]   Taking all these factors into account, I indicated that I would apply a 20 per cent discount for your guilty plea, as your lawyer suggests, and I will do that today.

Totality adjustment

[31]   A starting point of eight years six months, uplifted by six months for personal aggravating factors, then discounted by 20 per cent for a guilty plea, results in an end sentence of seven years, two months’ imprisonment.

[32]   Both parties, and I, agree however, that some downward adjustment to this end sentence is needed for totality reasons; you were sentenced to four years, one-month imprisonment in May 2016 and the current sentence will be served cumulatively on that. Without an adjustment, your total sentence would be 11 years, three months. Had you been sentenced at the same time for your earlier offending and the present offending, it is highly likely there would have been downward adjustment for totality.

[33]   There is no detailed information before me about your first strike offending, other than it was also a charge of wounding with intent to cause grievous bodily harm. I am required to ensure that the total period of imprisonment is not wholly out of proportion to the gravity of your overall offending.8 I infer from the end sentence on your earlier seven charges that your earlier offending was significantly less serious than your current offending. The Crown therefore suggests that the sentence for the present offending should be adjusted down to five years and three months’ imprisonment. Mr Wimsett, on the other hand, submits four years and eight months is appropriate, being the same end sentence for Mr Rangitoheriri. As I said earlier, Mr Rangitoheriri entered a guilty plea at an earlier stage and thus received the full  25 per cent discount, though in my view was more culpable than you are.

[34]   I indicated in the sentencing indication that the final sentence would be one of four years and eight months’ imprisonment. That is the sentence I will impose on you today. Given this is a second-strike offence, this sentence must be served without parole.

MPI

[35]   The Sentencing Act also requires me, when sentencing for a second-strike offence, to state any minimum period of imprisonment I would otherwise have imposed.9

[36]   In this case, I consider a 50 per cent minimum period of imprisonment would have been justified. The report writer assesses your risk of reoffending as high to very

8      Section 85.

9      Section 86C(6).

high. The report also records that you expressed a total lack of remorse. These factors, as well as the fact the offending involved serious violence, engage the sentencing principles of denunciation and deterrence. A 50 per cent MPI also achieves parity with the MPI which would have been imposed for Mr Rangitoheriri.10

Conclusion

[37]   Mr Tonga, would you please now stand. I sentence you to four years and eight months’ imprisonment on the charge of wounding with intent to cause grievous bodily harm. This sentence is to be served cumulatively on your existing sentence. Because it is a second-strike offence, this sentence must be served without parole.

[38]You may now stand down.

Fitzgerald J

10     R v Rangitoheriri [2018] NZHC 2355 at [54].