Tonga v The King
[2025] NZCA 549
•17 October 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA440/2025 |
| BETWEEN | CURTIS TONGA |
| AND | THE KING |
| Hearing: | 30 September 2025 |
Court: | Collins, Cull and Osborne JJ |
Counsel: | A C Cresswell and M T Dempsey for Appellant |
Judgment: | 17 October 2025 at 11 am |
JUDGMENT OF THE COURT
A The time to appeal is extended.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Osborne J)
The appellant, Curtis Tonga, was one of three men involved in a violent attack on a man in the driveway to his rural property in October 2023 (the “October 2023 offending”).
Mr Tonga was charged with one charge of assault with a weapon and one charge of wounding with intent to cause grievous bodily harm. He initially pleaded not guilty to both charges. On the second day of his trial, he pleaded guilty to the charge of assault with a weapon.[1] The charge of wounding with intent to cause grievous bodily harm was withdrawn. Mr Tonga was sentenced by Judge Hikaka to nine months’ home detention.[2]
[1]Crimes Act 1961, s 202C(1)(a): maximum penalty five years’ imprisonment.
[2]R v Coley [2025] NZDC 12864 [sentencing notes]. Mr Coley was Mr Tonga’s co-defendant and was sentenced with Mr Tonga.
Mr Tonga appeals the sentence. The notice of appeal was filed four days out of time. The delay having been explained and there being no prejudice to the Crown, time will be extended for the appeal.
The grounds of appeal focus on two matters:
(a)the starting point; and
(b)a lack of credit for time spent in custody and on electronically monitored (EM) bail.
No issue is taken with the credit (15 per cent) allowed by the Judge on account of the appellant’s guilty plea.
Approach on appeal
An appeal against sentence must be allowed if the Court is satisfied there is an error in the sentence imposed on conviction and a different sentence should be imposed.[3] The primary consideration is that the sentence is “manifestly excessive”.[4]
The October 2023 offending
[3]Criminal Procedure Act 2011, s 250.
[4]Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
Three offenders, including Mr Tonga, were involved in the assault on the victim, who was the appellant’s uncle. Mr Tonga was 38 years of age;[5] the victim in his early 60s. The victim was in the company of his partner, who had previously been in relationships with Mr Tonga and one of his co-defendants.
[5]Mr Tonga’s age was incorrectly stated in the District Court as 39 at the time of offending.
There was a background of ill-will between the defendants and the victim. The appellant had been particularly aggrieved because he considered the victim was on land Mr Tonga was entitled to.
On the day of the offending, the victim and his partner were at their driveway having returned home. Two men drove past the address on a motor-scooter and a quad-style motorbike.
The victim’s partner recognised one of those two men and drove after them to establish why he was in the area. In her car, the victim’s partner overtook the quad‑bike as she was returning to her address. The quad-bike rider stopped, completed a U-turn, and drove back towards the victim.
In the meantime, the victim had walked towards his partner as she was returning. As he did so Mr Tonga, who had appeared on a two-wheeler dirt bike, drove towards the victim. He lifted the front wheel before colliding the bike directly into the victim. The victim fell to the ground. Mr Tonga was thrown from his bike. He began to struggle with the victim. Around the same time, the other two men walked up and, during the struggle, one of them struck the victim on the head with a stick.
The attack stopped when an associate of all parties arrived at the scene and pleaded with them to stop.
The victim suffered multiple injuries which are detailed in his victim impact statement as including a scalp wound, a wound to the back of his head with sticks impaled in it, facial injuries, an open wound on his left leg, an open wound to his right hand, and wounds to his head, neck, trunk and forearm, contusions to his wrist and knee and a severe concussion. The victim also suffered memory loss and cognitive issues which have affected his ability to sustain his farming workload and reduced his income. Both the victim and his partner provided victim impact statements as to the psychological impacts of the offending.
Period between the October 2023 offending and trial
The three men involved in the October 2023 offending were charged. One pleaded guilty to his charge.
Mr Tonga, having been charged in relation to the October 2023 offending with wounding with intent to cause grievous bodily harm, was initially on bail simpliciter for five months to March 2024. At that point he committed further violent offences (the “March 2024 offending”) and was remanded in custody, remaining so for five months. He was then released on EM bail and was on that bail for nine months until he was sentenced in June 2025 for the October 2023 offending. The exact number of days is 171 days (in custody) and 271 days (on EM bail), as identified in the sentencing remarks of Judge Singh in relation to the March 2024 offending (discussed below at [23]).
While on EM bail, the appellant completed a number of programmes with the Grace Foundation, the Foundation reporting “strong and steady progress in his rehabilitation journey”.
The sentencing
On the second day of trial, Mr Tonga and his remaining co-defendant requested informal sentence indications should they face a single amended charge of assault with a weapon. Judge Hikaka indicated a starting point of 24 months. Mr Tonga and his co-defendant then pleaded guilty to the amended charge.
At sentencing, the Judge adhered to the starting point of 24 months.[6] He had regard to a breach of trust involved through the family relationship and to the significant injuries suffered by the victim. The Judge noted the submission of Mr Tonga’s counsel that the starting point (which she submitted should be 12–18 months’ imprisonment) could be uplifted by two months on account of the appellant’s criminal history.[7] The Judge did not expressly identify Mr Tonga’s criminal history as an aggravating factor when setting the 24-month starting point.
[6]Sentencing notes, above n 2, at [20].
[7]At [13] and [20].
The Judge allowed the (accepted) 15 per cent credit for the guilty plea and a further two months’ (or eight per cent) credit for rehabilitative progress.[8]
[8]At [22]–[26].
The Judge refused a requested discount for time spent in custody and on EM bail. The Judge observed those circumstances were a result of the (then alleged) reoffending in March 2024.[9]
[9]At [15] and [24].
The end calculation was 18 months’ imprisonment which the Judge converted to home detention.[10]
The outcome of the charges in relation to the March 2024 offending
[10]At [26]–[28].
The charges Mr Tonga faced in relation to the March 2024 offending were resolved in August 2025 when he pleaded guilty to six charges.[11]
[11]The six charges were: assault with intent to injure; assault on a person in a family relationship (representative); threatening to kill (representative); threatening behaviour; willful damage; and possession of an offensive weapon.
Mr Tonga, now serving home detention for the October 2023 offending, was sentenced to one month’s home detention in relation to the March 2024 offending, to be served cumulatively with the nine months’ home detention he was already serving.[12]
[12]Police v Tonga [2025] NZDC 20758.
In sentencing Mr Tonga, Judge Singh identified the time spent in custody (171 days) and on EM bail (271 days) since the appellant was arrested for the March 2024 offending.[13] From a global starting point of 16 months’ imprisonment, the Judge deducted one month for very late guilty pleas; three months for the time spent on EM bail; and 11 months for the time spent in custody.[14] Hence the sentence imposed of one month’s home detention.
The starting point
Appellant’s submissions
[13]At [8].
[14]At [7]–[8] and [10].
For Mr Tonga, Ms Cresswell submitted the October 2023 offending had limited aggravating features and involved moderate injury, for which previous cases suggest a starting point between 11 and 14 months’ imprisonment.[15]
[15]The cases cited were Silao v Police [2014] NZHC 3303; Barrett v Police [2014] NZHC 1259; Edmondson v Police [2015] NZHC 3184; and Emery v Police [2021] NZHC 851.
Ms Cresswell identified that, in assessing aggravating factors, the Judge focussed on breach of trust and the injuries suffered by the victim. In relation to the first factor, Ms Cresswell observed the nephew/uncle relationship between Mr Tonga and the victim did not of itself give rise to the exploitation of a relationship of reliance that is generally central to that consideration. In relation to the injuries suffered by the victim, Ms Cresswell submitted the Judge’s focus should have been on the injuries directly attributable to Mr Tonga driving into the victim, namely injuries to his hand and bruising to his shoulder.
On this basis, Ms Cresswell submitted the appropriate range for the starting point was 11 to 14 months’.
Respondent’s submissions
For the respondent, Mr Mara referred to the guidelines in R v Taueki in relation to “grievous bodily harm offences”[16] and to the further guidelines in Nuku v R in relation to other offences under the Crimes Act 1961 involving infliction of violence.[17] Neither guideline judgment deals with the offence of assault with a weapon but, Mr Mara submits, the guidelines in Nuku are applicable by analogy as recognised by this Court in Hurunui v R.[18]
Discussion
[16]R v Taueki [2005] 3 NZLR 372 (CA).
[17]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[18]Hurunui v R [2014] NZCA 290 at [26]–[27].
We have regard to this Court’s comments in Nuku and to the factors in ss 7, 8 and 9 of the Sentencing Act 2002.
While we do not view a breach of trust as a significant factor in this case, there were significant aggravating features present. These included Mr Tonga’s unprovoked use of a motor vehicle as a weapon; the involvement of multiple assailants; the significant hand injury suffered by the victim as a direct result of Mr Tonga’s assault; and the victim’s other serious injuries including a head injury sustained while Mr Tonga remained involved in the attack. It would also have been open to the Judge to have imposed an uplift for previous convictions for violence, including five assaults and a conviction for possession of an offensive weapon a few months earlier.
Having regard to the sentencing bands identified in Nuku,[19] a starting point of two years was justified, albeit stern.
Allowance for time spent in custody and on EM bail
[19]Nuku v R, above n 17, at [38].
Ms Cresswell submitted the sentence imposed by Judge Hikaka for the October 2023 offending failed to incorporate orthodox allowance for the time Mr Tonga spent in custody and on EM bail following his March 2024 arrest.
It would have been open to the Judge to bring those matters into account in the sentence imposed for the October 2023 offending. But nothing turns on the fact that no allowance was made in that sentencing, as Judge Singh made a significant allowance in the much-reduced sentence he imposed for the March 2024 offending.[20]
Sentence not manifestly excessive
[20]Police v Tonga, above n 12.
In these circumstances, we are not persuaded the sentence of nine months’ imprisonment was manifestly excessive.
Result
The application for an extension of time is granted.
The appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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