Tonga v The King - [2025] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA440/2025
[2025] NZCA 549

BETWEEN	CURTIS TONGA Appellant
AND	THE KING Respondent

Hearing:	30 September 2025
Court:	Collins, Cull and Osborne JJ
Counsel:	A C Cresswell and M T Dempsey for Appellant I A A Mara for Respondent
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guilty to the charge of assault with a weapon.[1] The charge of wounding with intent to cause grievous bodily harm was withdrawn.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.…

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 Tonga v The King

Details

AGLC: Tonga v The King [2025] NZCA 549
Case: [2025] NZCA 549
Decision Date: 17 October 2025 at 11 am

CaseChat Overview and Summary

Curtis Tonga was one of three men involved in an attack on the victim, his uncle, on the victim's rural property in October 2023. Mr Tonga was initially charged with assault with a weapon and wounding with intent to cause grievous bodily harm. He changed his plea to guilty for the former charge, and the latter charge was withdrawn. He was sentenced to nine months’ home detention. Mr Tonga appeals the sentence, arguing the starting point was too high and that he was not given credit for the time he spent in custody and on electronically monitored bail. The appeal was lodged four days out of time, but the delay was explained and no prejudice was caused to the Crown. The court extended the appeal time and dismissed the appeal.

The court considered whether the starting point and sentence were correct. The court noted aggravating features such as the unprovoked use of a motor vehicle as a weapon, the involvement of multiple assailants, and the significant injuries suffered by the victim. A starting point of two years was justified. While the sentence did not include credit for time spent in custody and on bail, the much-reduced sentence for the later offending made up for this. The court found the sentence was not manifestly excessive. The appeal was dismissed.

The court granted the application for an extension of time and dismissed the appeal.

Orders