PONGIPONGI v POLICE [2017] NZHC 1133

PONGIPONGI v POLICE [2017] NZHC 1133 [29 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000118[2017] NZHC 1133BETWEEN SIONE PONGIPONGIAppellantAND NEW ZEALAND POLICERespondentHearing: 29 May 2017Appearances: S Oliver for AppellantJ Bull for RespondentJudgment: 29 May 2017JUDGMENT OF WOOLFORD JSolicitors/Counsel:Meredith Connell, AucklandPublic Defence Service, AucklandIntroduction[1] On 29 March 2017 in the Auckland District Court, Sione Pongipongi was sentenced to nine months imprisonment on one charge of assaulting his partner with intent to injure her. He now appeals against sentence on the basis that the sentencing Judge should have exercised his discretion to allow him to serve his sentence by way of home detention.Facts of offending[2] The offending happened over a year earlier, on 18 February 2016. The agreed summary of facts recorded that the victim of Mr Pongipongi's offending was his partner of five and a half years with whom he had a four year old son and who was also eight weeks pregnant with their second child at the time.[3] On the evening of 18 February 2016, Mr Pongipongi and his partner were at their home address. During the course of the evening Mr Pongipongi consumed about 16 cans of beer. He became angry with his partner about a household chore she had not completed. He started swearing, yelling and verbally abusing her.[4] Mr Pongipongi entered the bedroom where his partner was putting their son to bed. He approached his partner by pretending to throw a beer can at her. As his partner got off the bed where their son was lying, Mr Pongipongi grabbed her by the neck and threw her back down. He then held her down.[5] As his partner stood up, Mr Pongipongi grabbed her by the hair and threw her to the ground. He kept hold of her hair and swung her around, slamming her head into the floor. Mr Pongipongi slapped her in the head once with a closed fist.[6] His partner tried to call her mother on her mobile phone, but Mr Pongipongi attempted to knock the phone away from her. Mr Pongipongi briefly left the room, but then came back and continuously punched her with a closed fist in the back of the head as she was crouching on the floor. His partner ended up lying on the floor, facing away from Mr Pongipongi. Mr Pongipongi then told her "I'm going to get ridof the baby. You are not going to have another one to me." Mr Pongipongi subsequently left the room, but remained at the property until police arrived.[7] The victim suffered a sore chest. Her neck was also red and bruised. She received swelling to her face and on the left and right cheeks and scratches to her left shoulder. In explanation, Mr Pongipongi stated he lost his temper when he was called lazy.Criminal history[8] Mr Pongipongi has a moderate criminal history built up over 14 years. The pre-sentence report notes 34 previous convictions, of which seven are said to be violence-related. The seven convictions which are said to be violence-related appear to be:Offence date Court date Offence and Sentence5 January 2007 25 May 2007 Disorderly behaviour$150 fine27 October 2008 31 October 2008 Disorderly behaviour$250 fine13 January 2009 3 August 2010 Wilful damage300 hours community work, 18 monthsintensive supervision(Imposed at the same time as large number oftheft and receiving charges for which thesame sentence was imposed)24 August 2009 3 August 2010 Possession of an offensive weapon300 hours community work, 18 monthsintensive supervision(Imposed at the same time as large number oftheft and receiving charges for which thesame sentence was imposed)2 April 2011 7 June 2011 Behave threateninglyTwo months community detention,15 months intensive supervision20 April 2014 24 April 2014 Resisting Police40 hours community work20 April 2014 24 April 2014 Assaulting Police40 hours community workIt should be noted that the violence-related charges are not the most serious. The only violence-related charges in the last six years are resisting and assaulting police for which Mr Pongipongi received 40 hours community work. He has never previously been sentenced to a term of imprisonment. He also has never previously been sentenced to a term of home detention.Appellant's submissions[9] Two specific appeal grounds are advanced:(a) The Judge erred in considering factual allegations that were outside the agreed summary of facts; and(b) The Judge gave too little regard to considerations in favour of an electronically monitored sentence.Agreed summary of facts[10] In his sentencing notes, the Judge referred to allegations contained in the original victim impact statement, including an allegation that Mr Pongipongi grabbed his partner by the neck and held her for about five seconds so that she could not breathe, as a consequence of which she suffered bruising around her neck from the pressure of the grip. Further, the sentencing Judge referred to Mr Pongipongi kicking his partner a number of times and the fact that she was very scared, including scared not only for her own safety, but also for the safety of their son and their unborn child.[11] These specific allegations were deleted from the original draft summary of facts and an amended summary of facts was agreed to by the prosecution and defence and filed in the District Court. It made no reference to Mr Pongipongi grabbing his partner by the neck or kicking her.[12] The appellant submits that where there is an agreed summary of facts, sentencing should proceed on the basis of the material in the summary and counselcannot invite the Court to go beyond it.1 The sentencing Judge is entitled to draw inferences from the summary, provided they are grounded on established primary facts.2 The appellant submits that in the present case the sentencing Judge fell into error, which should be corrected on appeal.Imprisonment/Home Detention[13] The appellant submits that imprisonment should not be imposed lightly. Section 16(2) of the Sentencing Act provides that the Court must not impose a sentence of imprisonment unless it is satisfied that no other sentence would be consistent with the application of the principles in s 8 to the particular case. The appellant submits that home detention provides a real alternative to imprisonment and case law illustrates that where convictions for violent offending result in a sentence of home detention, the Court has considered there was a real prospect of reconciliation and/or rehabilitation.[14] In the present case, Mr Pongipongi and his partner now have two young children. Mr Pongipongi provides financially for his family as his partner is not employed. Mr Pongipongi is also in fulltime employment. If a custodial sentencewere to be imposed, there is a risk that without Mr Pongipongi's income his familywould face financial difficulties.[15] On pleading guilty to the charge, the District Court directed Mr Pongipongi to undertake two courses – a community alcohol and drugs course and an anger management course. Mr Pongipongi completed both these courses and proof of this was filed in the District Court.[16] In a victim impact statement dated 9 September 2016, Mr Pongipongi'spartner supported contact with him and was of the view that this was the first time that Mr Pongipongi had taken responsibility for his actions and taken steps to address his offending, stating:1 Pokai v R [2014] NZCA 356 at [30].2 R v Kinghorn [2014] NZCA 168 at [20] - [22] and [31], Pokai v R, above n 1, at [31].Sione has stopped his drinking and to my knowledge there have been no incidents since February. I don't have any safety concerns for myself, babyor our son.[17] Mr Pongipongi was on bail for approximately 11 months. Of those 11 months, Mr Pongipongi was subject to a 24 hour curfew for four months. In light of Mr Pongipongi respecting his bail conditions and continuing employment responsibilities, the District Court reduced the curfew to 7.00pm to 7.00am, which he was subject to for the remaining seven months he was on bail. The appellant submits that this demonstrates that he complied with stringent bail conditions for a lengthy period.[18] On 9 March 2017, a pre-sentence report was completed which recommended an end sentence of community detention and supervision. Finally, in a victim impact statement dated 3 April 2017, the victim stated that she supported Mr Pongipongi undergoing a sentence of home detention:I think it would also be good for him to continue with his counselling with CADS and the Stopping Violence Programme with SHINE. He has been attending that counselling since he was released on bail in April 2016. I think the counselling was good for him, both me and my eldest son (aged 5) have both noticed the change that Sione has made and there has been a big change from him drinking alcohol every day.[19] In all the circumstances described above, the appellant submits that the Judge also fell into error in not imposing a sentence of home detention as being the least restrictive outcome.AnalysisAgreed summary of facts[20] The Crown accepts that the additional allegations referred to by the sentencing Judge were deleted from the original draft summary of facts and were not included in the amended agreed summary of facts filed in the District Court on 9 September 2016.[21] A similar issue arose in Tepania v Police where the sentencing Judge referred to factual allegations in the victim impact statement and earlier draft summary offacts.3 On appeal, Priestley J considered that one of the errors was compounded inthe sentencing notes and became "critical to the Judge's assessment of culpability".He noted that the sentencing Judge had made a number of factual and other errors and ultimately a lesser sentence was imposed.[22] In Blay v Police the sentencing Judge referred to allegations that were outside the summary of facts by drawing an inference from a statement in the victim impact statement.4 On appeal, Duffy J proceeded by assessing the gravity of the offending without considering the erroneous inference.[23] I agree with the Crown that the appropriate approach on appeal is to assess whether reference to the additional allegations led the sentencing Judge to incorrectly characterise the seriousness of the offending. The Crown submits that the sentencing Judge would have been likely to have reached the same conclusion on the gravity of the offending, even if he had taken no account of the allegations deleted from the draft summary of facts. Firstly, the sentencing Judge adopted the 15 months starting point that was proposed by the appellant's counsel at sentencing.Secondly, there are a number of other features of the offending that are in the agreed summary of facts and were described in the sentencing notes that would havecontributed to the sentencing Judge's characterisation of the offending as "disturbingly serious".[24] I am of the view that the sentencing Judge did fall into error when referring to the additional allegations, which were not accepted and were not included in the agreed summary of facts. If this was the sole ground of appeal, I would, however, have dismissed the appeal because the agreed summary of facts did disclose asustained assault to the victim's head while she was defenceless on the bedroomfloor. However, this error by sentencing Judge has to be seen in the context of the next ground of appeal, to which I now turn.3 Tepania v Police [2013] NZHC 2327.4 Blay v Police [2014] NZHC 2923.Imprisonment/home detention[25] The approach to appeals against a refusal to grant home detention was set out by the Court of Appeal in James v R:5[17] an appeal against a refusal to grant home detention does notprovide an opportunity to revisit or review the merits. The question is whether [the sentencing Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? [Counsel] for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.[26] I also accept that where a defendant is on the cusp of home detention the Court will ordinarily defer to the assessment of the sentencing Judge.[27] In the present case, the sentencing Judge noted that the appellant had attended a number of courses and that while the first pre-sentence report recommended imprisonment, the second recommended intensive supervision and community detention. The Judge dealt with the issue as to the appropriate sentence as follows:[11] As a starting point, Ms Oliver says 15 months' imprisonment wouldbe appropriate and I accept what she said about that. However, she advocates for the community detention and supervision sentences to be imposed because of the good progress made.[12] However, in my view, the seriousness of the offending is such that I do not think community detention and supervision are sufficient to denounce the conduct, to deter you and to deter others from offending of this sort. It is disturbingly serious and in my view a sentence of imprisonment is appropriate.[28] The Crown submits that in the above passage the sentencing Judge identified the factors that led to his conclusion that imprisonment was necessary. He weighed imprisonment against a lesser sentence, although the Crown accepts that he did not expressly weigh the option of home detention compared with imprisonment. The Crown submits that an experienced District Court Judge such as the sentencing Judge would have been well aware of the various sentencing options open to him, up5 James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17].to and including imprisonment. He had referred to the second pre-sentence report, which recorded that home detention was available.[29] Nonetheless, the Crown accepts that this Court may conclude that the Judge fell into error because he did not explicitly weigh up home detention compared with imprisonment. The Crown submits that it would then be open for this Court to make a fresh assessment of whether imprisonment should have been imposed and submits that, even on a fresh consideration of the issue, the appropriate sentence is one of imprisonment.[30] The Crown acknowledges that the appellant has made attempts to improve himself since the offending. It recognises that rehabilitative efforts and remorse are certainly to be encouraged, but notes that the sentencing Judge recognised this and imposed a discrete discount of 20 per cent for steps towards rehabilitation together with remorse and compliance with bail conditions.[31] It is my view, however, that a sentence of home detention would be sufficientto meet the principles set out by the Judge of denouncing Mr Pongipongi's conductand to deter him and others from offending of this sort. It is the least restrictive outcome possible in terms of the Sentencing Act.[32] In reaching my view I have had regard to the following factors:(a) A detailed evaluation of Mr Pongipongi's criminal history discloses that his previous violence-related convictions are not the most serious. Some could be characterised as relatively minor, apart from convictions for resisting arrest and assaulting a police officer in 2014. The last recorded violence-related conviction is six years ago and that was the offence of behaving threateningly.(b) There has been a substantial period of 13 and half months since the offending in which time Mr Pongipongi has engaged in substantive efforts at rehabilitation. First, he has been subject to stringent bail conditions, including a curfew, with which he has complied.Secondly, he has completed two Community Alcohol and Drug Services programmes and Shine's 20 week No Excuses group programme.(c) The pre-sentence recommended community detention and supervision. The report stated:While Mr Pongipongi's criminal history cannot be ignored, thechanges he has made since the offence, approximately a year ago, are considerable. He has completed Shine's 20 week No Excuses group programme and two Community Alcohol and Drugs Services (CADS) programmes. He also reported to have not consumed alcohol since the assault and third party enquiries support this view. At interview, Mr Pongipongi presented as a man ashamed of his behaviour. He showed insight into his offending and his remorse appeared genuine.Based solely on the seriousness of the offence and Mr Pongipongi's conviction history, the report writer would be recommending a custodial sentence. However, in light of the positive changes that he has made and with the support of both the victim and his programme provider, a sentence combination of community detention and supervision is recommended.(d) The victim supports Mr Pongipongi being released on home detentionto enable him to continue working. She advises that Mr Pongipongi'semployers do not want to lose him and have kept his job open for him.Conclusion[33] Although the sentencing Judge made reference to allegations which had been deleted from the draft summary of facts, I accept that this was moderately serious domestic violence, but I am of the view that the principles of denunciation and deterrence, which were enunciated by the sentencing Judge can be sufficiently met through a sentence of home detention, which would enable Mr Pongipongi to continue with his rehabilitative efforts.[34] The sentence of nine months imprisonment is quashed and in its place a sentence of four months home detention is imposed, which is to be served at the home detention residence identified in the pre-sentence report dated 9 March 2017. Further special conditions are imposed as follows:(a) Mr Pongipongi is not to possess, consume or use any alcohol or drugs not prescribed;(b) If assessed as suitable to attend, Mr Pongipongi is to participate in and adhere to the rules of a relapse prevention group as directed by and to the satisfaction of a probation officer.(c) Mr Pongipongi is to undertake and complete the recommended Departmental programme, if directed to do so by the probation officer and abide by the rules of the programme to the satisfaction of a probation officer.[35] I note that Mr Pongipongi is currently on bail, having been granted bail by the District Court ten days after his sentence. Accordingly, the sentence of home detention is to commence on a date to be specified by a probation officer._________________________Woolford J