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…

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.

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Details

Case: [2025] NZHC 671
Decision Date: 27 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Tangaroa Warren Tonihi appealed his 24 months and 15 days’ imprisonment sentence handed down by the District Court. The appeal centered on the assertion that the starting point for the lead offending was set too high. Mr. Tonihi was convicted of demanding with intent to steal, using a firearm to commit another offence, common assault, theft, and breaching conditions of supervision and community work. The central legal issue was whether the starting point for the lead offence of demanding with intent to steal using a firearm was excessively high. The Crown argued that the seriousness of the offence, given the use of a firearm and the threat it posed, justified a higher starting point. Mr. Tonihi, on the other hand, contended that a lower starting point of around 20 months was appropriate, considering the absence of certain aggravating factors present in other cases. The court compared the case with other precedents involving demanding with menace offending, taking into account factors such as the presence of a firearm, the threat it posed, and the absence of actual violence or stolen goods. The court found that while the starting point of 28 months was on the higher end, it was not manifestly excessive, especially when considering an uplift for previous convictions. Ultimately, the appeal was dismissed as the court found no basis for appellate intervention. The sentence imposed by the District Court was affirmed.

Orders