Tonihi v Police

[2025] NZHC 671

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-000052

[2025] NZHC 671

BETWEEN

TANGAROA WARREN TONIHI

Appellant

AND

POLICE

Respondent

Hearing:	11 March 2025 via AVL from Wellington
Appearances:	C Andersen for Appellant M Brownlie for Respondent
Judgment:	27 March 2025

JUDGMENT OF CULL J

[1]    Mr Tonihi was sentenced to 24 months and 15 days’ imprisonment in the District Court1 after pleading guilty to charges of demanding with intent to steal,2 use of a firearm to commit another offence,3 common assault,4 theft,5 breaching conditions of supervision6 and breaching community work.7 Mr Tonihi appeals the sentence on the basis that the starting point for the lead offending was too high.

Background to the offending

[2]    The background to the offending is taken from the police summary of facts to which Mr Tonihi pleaded guilty. At about 6 pm on 19 November 2023, Mr Tonihi

1      Police v Tonihi [2024] NZDC 25960.

2      Crimes Act 1961, s 239(2); maximum penalty seven years’ imprisonment.

3      Arms Act 1964, s 54(2); maximum penalty five years’ imprisonment.

4      Crimes Act, s 196; maximum penalty one year’s imprisonment.

5      Sections 219 and 223(c); maximum penalty one year’s imprisonment.

6      Sentencing Act 2002, s 70(a); maximum penalty three months’ imprisonment or $1000 fine.

7      Section 71(1)(a); maximum penalty three months’ imprisonment or $1000 fine.

Tonihi v Police [2025] NZHC 671 [27 March 2025]

asked his sister to drive him to a petrol station to buy some cigarettes. His sister dropped him off. Mr Tonihi entered the petrol station, picked up a few items, and approached the counter.

[3]    Mr Tonihi told the attendant to ‘give him some money’, before pulling up his hoody and showing the attendant a black air pistol tucked into the top of his shorts. The victim turned and fled to the back of the store, pressing the panic alarm button. As the victim was doing this, Mr Tonihi pulled the pistol from his pants, pointed in towards the victim and pulled the trigger. The victim was not hit. Mr Tonihi then fled the store without taking anything.

[4]    As Mr Tonihi was running back towards his sister’s vehicle, he punched the second victim in the back of the head as he ran past him.   The victim shouted at    Mr Tonihi, and Mr Tonihi pulled the pistol from his trousers, presenting it at the victim before getting into his sister’s vehicle, which drove away. The second victim did not suffer any injury.

[5]    The theft charge involved Mr Tonihi’s stealing a backpack container a personal locator beacon from a car in August 2023.

Sentencing decision

[6]    The sentencing Judge observed that the authorities typically impose a sentence of between two years and two years and 10 months’ imprisonment where the defendant pulls a knife or gun on the complainant and makes demands for money or other property. The Judge identified the aggravating features in the present offending to be the showing of the gun and that Mr Tonihi pulled the trigger. The Judge imposed a starting point of 28 months for the demanding and possessing a firearm offending.

[7]    The Judge imposed an uplift of three months’ imprisonment for the assault charge, noting that this was made worse by the fact that that victim was also shown the gun. The Judge imposed an uplift of two months for the theft charge, noting that it did not happen on the same day, and further uplifts of one month for each of the breaching community work and supervision charges. That resulted in a starting point of 35 months’ imprisonment.

[8]    The Judge imposed reductions of 25 per cent for Mr Tonihi’s guilty plea and five per cent for remorse. That led to an end sentence of 24 and a half months’ imprisonment. The Judge observed that Mr Tonihi was not eligible for home detention. The Judge cancelled the community work and supervision sentences and all of Mr Tonihi’s fines, and made an order prohibiting Mr Tonihi from having a firearm for 10 years post-release.

Principles on appeal

[9]    The appellant’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion.8

[10]   In order to succeed, Mr Tonihi must show that there was an error in the sentence reached and that a different sentence should have been imposed.9 The Court will not intervene where the sentence is within the range available to the sentencing Judge.10 The Court will intervene only if the sentence is manifestly excessive.11

Parties’ positions

[11]   Ms Anderson, for Mr Tonihi, submits that the starting point for the lead offending of 28 months’ imprisonment, and the total starting point of 35 months’ imprisonment, was manifestly excessive when compared to the authorities and considering the aggravating factors not present. Ms Anderson submits that a starting point for the lead offending of  around  20  months’ imprisonment  is  appropriate. Ms Anderson accepts that an end sentence of imprisonment is appropriate.

[12]   Mr Brownlie, for the Crown, submits that the starting point for the lead offending was well within range. Mr Brownlie says that Mr Tonihi fired an air pistol at a service station attendant and pointed the pistol at another victim are serious aggravating factors of the offending. Further, the Crown submits that an uplift would have been warranted for Mr Tonihi’s relevant prior convictions.

8      Filivao v R [2024] NZCA 103 at [30].

9      Criminal Procedure Act 2011, s 250(2).

10     Tutakangahau v R [2014] NZCA 279 at [36].

11     Kumar v R [2015] NZCA 406 at [81].

Analysis

[13]   The principal issue on appeal was whether the starting point was within the accepted range for the lead offences of demanding with intent to steal with a firearm. The Judge did not refer to any authorities when he adopted the starting point of      28 months or two years and four months’ imprisonment. The Judge said:12

[5] In setting the first part of your prison sentence, I have to think about  what made what you did really serious. Of course there is the showing the gun and there is the pulling the trigger, as the guy in the petrol station fled. What I think is the appropriate place to start is a prison sentence of 28 months, so that is two years and four months and that amount of prison is also the prison sentence for having the gun in your possession. I am not adding anything for that charge.

[14]   The Judge uplifted seven months for the remaining current offending but did not make any uplift for Mr Tonihi’s previous offending.

[15]   Both the Crown and the appellant accept that there should be an uplift for   Mr Tonihi’s previous convictions and an agreed uplift is three months.

[16]   The real issue in contention is whether the starting point for the lead offending of 28 months’ imprisonment is in the available range. Ms Andersen contends that on a comparison with the authorities, 20 months is the appropriate starting point.

[17]   The Crown, on the other hand, rely on the Court of Appeal’s decision in R v Carpenter,13 an authority on attempted aggravated robbery, submitting that this offending was so close to aggravated robbery that it should be considered in the same way. The difference here is that the items uplifted by Mr Tonihi from the petrol station were not taken or stolen by him. But for that, this would have been considered as aggravated robbery offending and the Crown urges that a stern approach is warranted.

[18]   I do not consider this approach is appropriate here. Mr Tonihi has been charged with demanding with menace offending. I consider it is appropriate therefore, to assess his starting point with reference to the authorities involving demanding with menace offending.

12     Police v Tonihi, above n 1.

13     Carpenter v R [2010] NZCA 560.

[19]   Given that there is no guideline decision for charges of demanding with intent to steal under s 239(2) of the Crimes Act, I consider it is helpful to set out the range of cases provided by Counsel, for a comparative analysis.14

Case	Facts	Aggravating factors	Starting point
Young v Police [2022] NZHC 1009.	The appellant picked up a steak knife from the cutlery shelf, which was taken off him. He said to the victim that he was not there to harm him/her, and that he wanted the owner. The appellant picked up two more steak knives, and pointed them at the victim’s chest/neck area and demanded that the victim open the till in an attempt to lure the owner to the café through CCTV. The appellant ushered the victim into the kitchen area of the café to call the owner. The appellant told the owner to come to the café with $2,500 otherwise the victim would be stabbed. The café owner hung up on the appellant, who then smashed the victim’s cell phone.	Use of the knives with the threat; and the proximity of the knife to the victim’s face. The Court noted that there was no actual violence and no money was taken.	16 months.
Regan v R [2012] NZCA 227.	The appellant, in a heavily intoxicated state, walked into a bank, approached a teller’s station, and demanded the money in the till, telling the teller to “move it”. The appellant spoke in a commanding voice, leaving the teller, who was aged 18 years and on her first day of work, feeling intimidated and shocked. The appellant took $905.	Amount of money taken; intention to make off with a substantial    sum; burglary     of     a commercial premises; harm to the    victim;    and premeditation.	18 months.
Opetaia v R [2011] NZCA 621.	Two patched gang members demanded protection money of $1200 per month from a bar owner. The co-accused grabbed the victim by his shirt and threatened to damage the store if their demands were not met. The victim handed over $5 in coins to the appellant.	Two people made the demand; both wore patches; premeditation; and the demand was not insignificant.	24 months.

14 The Crown referred me to Mita v R [2012] NZCA 137. I have not included this decision in the table below. I consider the offending there to be more serious, as it involved actual stabbing and a three-and-a-half hour detention. This makes it unhelpful for present purposes.

R v Brown- Martin [2022] NZHC 2805.	Two co-offenders got into the victim’s vehicle and took possession of a pistol. The victim was taken to his property where he was punched in the head several times, and then taken to the co-offenders’ residence. During the drive to the residence, the defendant demanded payment from the victim and threatened violence. The victim jumped from the moving vehicle to escape, receiving minor injuries, but was retrieved. Further demands for payment were made until the victim acquiesced. As part of the demands, the appellant arranged for the victim’s vehicle to be traded for methamphetamine. The defendant took the victim to the bank to make a withdrawal the next morning.	Demand      made after    a     violent assault;          the repeating   of   the demand;        two offenders; depriving        the victim    of    their vehicle;        and tracking        and controlling      the victim’s movements.	30 months.
R v Thomas [2016] NZHC 3083.	Two offenders entered the home of the victims in the early morning wearing gang patches. The defendant made a demand for money he believed the victim had stolen from him. The victim denied this, and the offenders proceeded to take possessions from the house. The defendant attempted to take a phone from the other victim, who resisted the theft. The defendant’s associate held a knife at her and threatened to stab her. The defendant began to choke her while her son watched. The co-offenders left the premises with about $1500 worth of possessions after further threats. The possessions were returned prior to the defendant’s arrest.	Unlawful presence in the victim’s home; the use of violence in the presence of a child; the number of items taken from the property; multiple offenders; premeditation; and intimidation.	32 months.
Vujcich v Police [2013] NZHC 1747.	The appellant entered the victim’s property with two others and demanded money owed for a vehicle purchase. The appellant made threats of violence against the victim, his family and his house, before the victim was hit over the head with a spade and kicked in the back of the head. The victim received no substantive injuries.	Multiple offenders; premeditation; threats of violence; and            actual violence.	32 months.

[20]   The agreed aggravating factors relating to this offending are premeditation, possession of an air pistol, and that the air pistol was fired. No separate uplift was given for the use of a firearm to commit another offence. Ms Anderson emphasises that there is an absence of a number of aggravating factors here, including the lack of actual violence and that there was no money obtained.

[21]   Given the presence of a firearm, albeit a black air pistol, the Court of Appeal’s comments in R v Mako (the guideline decision for aggravated robbery) are relevant:15

Generally the use of unloaded firearms (though no comfort to victims) gives rise to less danger – but it can be noted that in the case under appeal an unloaded weapon still led to shots having to be fired by the police in a residential area. It should be kept in mind that the very object of offenders is to convince victims that firearms are loaded and the impact on them is no less because they are in fact not loaded. Nor is there any less risk that victims might react in ways dangerous to themselves or others believing they are in mortal danger.

[22]   Here, Mr Tonihi brandished and fired an air pistol, which being black, may well have the appearance of a small black firearm. I accept the Crown’s submission that this is a seriously aggravating factor.

[23]   It was accepted that the offending in Young v Police16 and Regan v R17 was less serious than the present offending. Although no items were taken (as in Regan), the pistol was discharged here, presenting a greater perceived threat to the victim.

[24]   However, the offending is less serious than the offending in R v Brown-Martin,18 which involved an extended period of detention, the use of a real pistol, actual violence and a significant loss of property. Similarly, the offending in  R v Thomas19 is more serious because of the presence of home invasion, strangulation in front of a child and the theft of items as aggravating factors. In Vujcich v Police,20 the offending involved home invasion, violence and multiple offenders and is similarly more serious than the present offending.

[25]   In relation to the cited authorities, Opetaia v R21 is closest to the current offending. Two people made the demands, both wearing gang patches, there was premeditation and the demand for protection money of $1,200 per month from a bar owner was significant. I consider the presence of the black pistol, which was discharged, presented a greater threat to the victim, making this offending slightly

15     R v Mako [2000] 2 NZLR 170 (CA) at [39] (emphasis added).

16     Young v New Zealand Police [2022] NZHC 1009.

17     Regan v R [2012] NZCA 227.

18     R v Brown-Martin [2022] NZHC 2805.

19     R v Thomas [2016] NZHC 3083.

20     Vujcich v Police [2013] NZHC 1747.

21     Opetaia v R [2011] NZCA 621.

more serious. However, I consider this offending is closer in seriousness to the offending in Opetaia v R than the offending in R v Brown-Martin, R v Thomas or Vujich v Police.

[26]   In reviewing the authorities, I consider that a starting point for this offending, was in the range of 25 to 26 months. However, I do not consider appellate intervention is justified here. The Judge, in adopting 28 months, did not make a further uplift for previous convictions. Both Counsel accept that three months’ uplift for previous offending is appropriate. I agree.

[27]   Given that an amended starting point for the lead offending of 25 to 26 months with a three-month uplift for previous convictions would result in a slightly higher end sentence, it demonstrates that the current sentence is not manifestly excessive. No appellate interference is warranted.

[28]Accordingly, the appeal is dismissed.

Result

[29]The appeal against sentence is dismissed.

Cull J

Solicitors:

Andersen Law, Dunedin, for Appellant Crown Solicitor, Dunedin, for Respondent