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…

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 [2019] NZHC 712
Case: [2019] NZHC 712
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Fitzgerald J sentenced Shane Monu He Fotu Tonga to four years and eight months’ imprisonment on one charge of wounding with intent to cause grievous bodily harm. The Crown and the defence both submitted arguments on the appropriate starting point for the sentence, the adjustment for personal factors, and the discount for the defendant's guilty plea. The defendant's personal circumstances and the prison environment were also considered. The court considered the totality of the defendant's offending and decided on a sentence of four years and eight months’ imprisonment, to be served cumulatively on his existing sentence. As it was a second-strike offence, the defendant must serve the sentence without parole. The court also imposed a 50 per cent minimum period of imprisonment.

The court found that the defendant's offending involved extreme violence over a prolonged period, with the use of weapons, and was gang-related. The starting point was set at eight years and six months’ imprisonment, slightly less serious than that of one of the co-defendants. The court considered the defendant's prior convictions and determined an uplift of six months was warranted, taking into account the three-strikes legislation. The court did not grant any further discounts for personal matters or the prison environment, as they did not affect the defendant's moral culpability for the offending. The court applied a 20 per cent discount for the defendant's guilty plea, considering the practical difficulties in communicating with him and the strength of the prosecution case. The final sentence was adjusted for totality reasons, taking into account the defendant's earlier offending and the need to ensure the total period of imprisonment was not out of proportion to the gravity of his overall offending.

Orders