R v Ponga [2014] NZHC 677 (4 April 2014)

Last Updated: 11 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-090-1626 [2014] NZHC 677

THE QUEEN

v

JERMAINE MATIU PONGA SEMISI TAPUELUELU

Hearing: 4 April 2014

Appearances: S L McColgan for Crown

N G Cooke for Defendant Ponga

A J Holland for Defendant Tapueluelu

Sentence: 04 April 2014

_{SENTENCING REMARKS OF PETERS J}

Solicitors: Meredith Connell, Crown Solicitor, Auckland

N G Cooke, Auckland

Public Defence Service, Auckland

R v PONGA [2014] NZHC 677 [4 April 2014]

Introduction

[1] Mr Tapueluelu you are for sentence on one charge of causing grievous bodily harm to Wiremu Erueti, with intent to injure him.¹ This offence occurred on

8 December 2012 and you pleaded guilty to it on 24 February 2014. The maximum penalty for the offence is seven years’ imprisonment.

[2] Mr Ponga, you are for sentence today for injuring Daniel Ruka with intent to cause grievous bodily harm.² This is a serious charge, the maximum penalty for which is 10 years’ imprisonment. You were convicted of this charge following a jury trial at which I presided in February 2014.

[3] I have given each of you a “first strike” warning on conviction. I do not propose to repeat it today.

Facts

[4] The offending occurred at a house in Avondale. A group of four of you, or at least four of you, went to that house late on a Saturday night where the occupants and their friends were having a small party. If your group was invited to that party, it was only by someone with a slight connection to the group that were there. All who gave evidence before me said that they did not know the four of you, that they did not like the fact that you were there, and that they would have much preferred that you were not.

[5] A fight broke out. I am satisfied that one of your group started it and that it was unprovoked.

[6] Mr Tapueluelu, you punched Mr Erueti and knocked him to the ground. Mr Erueti gave evidence in Mr Ponga’s trial. There can be no doubt that you are much bigger than he is. Under no circumstances could a fight between you and Mr Erueti be described as an even contest. He came away from that with his jaw

_{broken in three places – one in his chin and one under each ear. He spent five days}

¹ _{Crimes Act 1961, s 188(2).}

² Ibid, s 189(1).

in hospital, had stitches, three metal plates inserted to hold his jaw together and had braces put on his teeth. Mr Erueti could not eat solid food for three months and, not surprisingly, lost a lot of weight.

[7] Mr Ponga, your victim was another guest, Daniel Ruka. Mr Ruka ended up lying on a concrete driveway, face up, incapable of defending himself, while you and I believe another person, kicked him in the head. I am satisfied that you kicked Mr Ruka in the head at least twice, whilst he was down and unresponsive, and quite possibly more than that.

[8] The upshot was that Mr Ruka was left unconscious in what medical personal describe as a “status one” condition, meaning that his injuries were life threatening. In his submissions, your counsel has said that this can be attributed to Mr Ruka being intoxicated. I do not accept that submission. Mr Ruka, in my view, was in a status one condition because you and someone else had kicked him repeatedly in the head whilst he was on that concrete driveway and incapable of getting out of your way or protecting himself.

[9] I accept your counsel’s point that Mr Ruka has made what appears to have been a complete recovery, and quite quickly, but that is no thanks to you. It is because he recovered relatively quickly that you are only charged with causing injury, and not something vastly more serious.

[10] Needless to say your group took off when the police were called. As usual, the police, ambulance personnel and hospital staff were left to pick up the pieces.

[11] Mr Tapueluelu and Mr Ponga, if you hit or kick someone in the head, you will do them harm. How much harm is a matter of chance – a lot will depend on how quickly they can be got to the hospital and how quickly they can be treated. These are matters that you do not control. Your actions are going to have serious consequences for you, and in your case Mr Ponga, for your children. But it could have been much worse for Mr Erueti and Mr Ruka – and if it had been worse for them, it would have been much worse for you.

Personal Circumstances

[12] Mr Tapueluelu you are 22. This is your twelfth conviction – all committed since you were 17. You committed this offence whilst on bail for other offending. You have one other conviction for violent offending, namely an aggravated robbery in 2010. Aside from that, however, your offending has largely consisted of stealing cars and motorbikes. It has been dishonesty – not violence. It is a great pity that you have offended in this way. Courts take violence very seriously because the consequences for the victim can be so dire.

[13] I have read the Corrections report. What it boils down to Mr Tapueluelu, in my view, is that you drink too much on occasions and when you do you think it is okay to hit someone, particularly if you form the view that they have started it.

[14] Mr Ponga you are 23 and have 11 other convictions aside from this one. Several of these were committed when you were a youth. You have a conviction for common assault and for aggravated robbery. You committed the present offence shortly after your release from prison on that aggravated robbery.

[15] You have three children and the writer of the pre-sentence report says that you regret what you have done in this instance, not least because of the consequences that it is going to have for your children, your partner and your ability to support them financially. I have read your letter and the various pieces of paper that go with it. They are all very helpful thank you and I have taken them into account.

[16] The report says that you do not think you have a tendency to be violent but that you get upset “when people mess with you”. I am willing to accept that you do not have a propensity for violence at the moment. I think you are well on the way to developing it. In any event, I do not think this was a situation where people were “messing with you” in your words. I think this was a case of your group picking a fight with people who did not want to fight. Even if someone does have a go at you, you have to walk away.

[17] You both need to realise that if you drink too much, there is a chance that you will end up in trouble. If you end up in trouble you are likely to spend longer and longer and longer periods in prison.

[18] What I think makes this totally unnecessary is the fact that you, Mr Tapueluelu, are quite capable of holding down a job as appears from your employer’s letter. I have no doubt Mr Ponga that you are in exactly the same category and here you are sitting in the dock, about to be sentenced for offending which, I accept, occurred very quickly but which has had serious consequences.

Analysis

[19] To sentence each of you today, I must first set a starting point that reflects the seriousness of your offending. I must then adjust that starting point to reflect aggravating and mitigating factors that are personal to you. Finally, Mr Tapueluelu in your case, I must take into account your guilty plea.

Principles and purposes of sentencing

[20] In sentencing you the law requires me to keep in mind several important principles and purposes.³ The most important is to impose a sentence that I hope will stop you, and others, from committing the same or similar offences in the future. As I have said, the Court takes a particularly dim view of violence and even more so in the case of violence to the head.

[21] I must also hold you accountable for the harm done to Mr Erueti and Mr Ruka, take into account the gravity of your offending and bear in mind the desirability of consistency. What I mean by that is that I have to treat you, and I want to treat you, each on the same basis that others who have done similar things have been treated. No better, no worse. I also need to impose the least restrictive outcome appropriate and, as Mr Holland has reminded me, bear in mind that both of you have prospects for rehabilitation, particularly if you make this the last time you

_{are appearing on this sort of offence.}

³ Sentencing Act 2002, ss 7 and 8.

[22] You are for sentence on different offences and I am going to sentence you separately. But in each case I have the benefit of the Court of Appeal’s decision in R v Taueki⁴ which we have already discussed this morning and particularly its assessment of the factors that aggravate violent offending.

Mr Tapueluelu

[23] Mr Tapueluelu, I will sentence you first. I have also had the benefit in your case of another Court of Appeal decision in a case called Nuku v R⁵ and that applies directly for this sort of offence, namely causing grievous bodily harm with intent to injure.

Starting Point

[24] The first thing is I have to set the starting point and then I have to adjust that for factors that relate to you. Then I have to take into account your guilty plea.

[25] In your case I think there are two aggravating factors that are present: you attacked Mr Erueti’s head and, in my view in the context of this offence, the injury you caused him was serious. I do not consider it at all significant that Mr Erueti may have been fighting Mr Moala. As I have said, I am satisfied your group picked the fight. I am quite satisfied Mr Erueti would not have picked a fight with anyone that night and I do not accept for a moment that he walked into your punch.

[26] Both Crown counsel and your lawyer consider that this offending falls within what is referred to as “Band two”, and I agree. That means a starting point of up to three years’ imprisonment.

[27] Mr Holland, your counsel, submits that a starting point of 18 to 22 months’

imprisonment should be adopted. The Crown has submitted that a higher starting point, of between two years and two and a half years’ imprisonment, is appropriate.

⁴ _{Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).}

⁵ Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39; and R v Taueki [2005] 3 NZLR 372 (CA).

[28] I have read the two cases that Mr Holland referred me to, namely Sheppard v R and R v Rowe.⁶ I do not propose to discuss these today but they will appear in the sentencing note.

[29] Both of these cases involved the offender stabbing the victim during an argument outside a bar. In Sheppard the offender stabbed a bouncer in the neck with a small screwdriver and in Rowe the offender stabbed the victim with a broken bottle. The starting point in each case was two and a half years imprisonment.

[30] Having considered those cases, and bearing in mind what I think is the important differential in size between you and Mr Erueti and the seriousness of his injuries, in my view a starting point of two years and two months’ is appropriate.

Aggravating and mitigating factors personal to Mr Tapueluelu

[31] Turning to the factors that relate to you personally I do not think there is anything aggravating which requires me to increase the sentence from starting point. The fact that you were on bail for other unrelated offences and your previous convictions are not of sufficient relevance or importance to uplift the sentence.

Mitigation

[32] Your counsel has asked that I reduce the starting point on account of several other matters. These factors are time spent on restrictive bail conditions, remorse and prospects of rehabilitation.

[33] I am going to put remorse to one side. I am going to give you a discount for your guilty plea of course but I am not satisfied that I need to make any further reduction on account of remorse.

[34] I bear in mind your work opportunities and I am satisfied I should make some deduction for time spent on bail. That includes five and a half months on bail on a

24 hour curfew and a further period of time on a night time curfew. I propose to

_{reduce the starting point for those factors by two months.}

⁶ Sheppard v R [2013] NZCA 639; and R v Rowe [2011] DCR 538.

Guilty plea discount

[35] Although you did not formally enter a guilty plea until 24 February 2014, I am satisfied that in July 2013 you said you would do so if the charge you were facing were amended as it has been. Mr Holland suggests a discount of 20 per cent and the Crown says 15 to 20 per cent. I am satisfied that a 20 per cent discount is appropriate.

[36] Taking all of these matters into account, once I have spoken to Mr Ponga, I

intend to sentence you to one year and seven months’ imprisonment. That is

19 months.

Home detention

[37] I am not required to address the matter of home detention because you have waived your right to have me consider it and, as I understand it also, there is no suitable address at present.

Mr Ponga

[38] Mr Ponga, the factors that the Court of Appeal in Taueki identified as aggravating violent offending apply equally in your case. Those that are relevant in this case are that you attacked Mr Ruka’s head which I have said to you several times now, that you did so with another person, and that Mr Ruka was vulnerable at the time because he was incapable of defending himself.

[39] The Crown urges me to view this case as one of extreme violence causing serious injury. If I considered it extreme violence it would be because you kicked Mr Ruka in the head and I have already taken that into account. I am satisfied that serious injury was caused, but it was relatively short lived so I intend to give that reduced weight.

[40] Your counsel has submitted that the nature of your offending puts you in the least serious band of Taueki, being Band one and would mean a starting point of between, say, two and four years’ imprisonment.

[41] I accept the Crown’s submission, however, that this offending is within Band two. Making the necessary adjustments to the Taueki ranges, that would mean a starting point of between three and a half at the low end and seven years’ imprisonment at the top.

[42] The Crown proposes a starting point of between four years and two months’ and four years and 10 months’ imprisonment and it has referred me to two cases that it considers comparable.⁷ In both cases the offender received essentially a starting point of four years.

[43] I have also considered other cases dealing with offending under s 189(1). Two that are particularly relevant are R v Abbott and another case called Cooper-Siggleko R.⁸

[44] In the first, Abbott, the offender forced his way into the victim’s house and then punched and kicked her about the head and face in what seems to have been sustained and terrifying attack. The Judge adopted a starting point of four and a half years’ imprisonment. Your attack was not sustained in the same way but as I have said Mr Ruka was incapable of defending himself.

[45] In Cooper-Siggleko the offender was on bail and attacked a police officer who was checking on him. The offender knocked the police officer to the ground, sat on her, trapped her arms and then punched her at least 10 times around the head whilst his younger brother joined in. The Court of Appeal upheld a starting point of five years and six months. The particularly aggravating factor was that the attack was on a police officer.

[46] Your counsel submits that a sentence as short as one year’s imprisonment might be appropriate in your case. I cannot accept that submission. This was serious and dangerous offending. I consider that that the appropriate starting point is four

_{years’ imprisonment.}

⁷ _{Tuhiwai v R [2012] NZCA 209; and R v Kohunui CA126/05, 1 November 2005.}

⁸ R v Abbott [2013] NZHC 62; and Cooper-Siggleko v R [2012] NZCA 580.

Aggravating and mitigating factors personal to Mr Ponga

[47] No particular factors arise in your case which require me to increase or reduce the sentence from that starting point.

[48] I am not required to consider a reduction on account of time spent on bail because you have been remanded in custody throughout. Given that, I intend to impose a sentence of four years’ imprisonment.

Sentencing

[49] Please stand:

(a) Mr Tapueluelu you are sentenced to one year and seven months’

imprisonment.

(b) Mr Ponga, you are sentenced to four years’ imprisonment. [50] Please stand down.

..................................................................

M Peters J