PONGA v POLICE [2020] NZHC 2774

PONGA v POLICE [2020] NZHC 2774 [22 October 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000109[2020] NZHC 2774BETWEEN TUMAHANA JOHN PONGAAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2020Appearances: K J Gray for the AppellantP A Norman for the RespondentJudgment: 22 October 2020JUDGMENT OF NATION JIntroduction[1] The appellant, Mr Ponga, pleaded guilty in the District Court to unlawfulpossession of a firearm, unlawful possession of ammunition, unlawfully getting into amotor vehicle and driving while disqualified third or subsequent. Judge Kellarprovided a sentence indication on 19 June 2020. On 5 August Mr Ponga was sentencedto six months' home detention by Judge Neave and was disqualified from driving for12 months.1 Mr Ponga appeals that sentence on the basis the Judge failed toadequately consider whether Mr Ponga should be sentenced to community detention.21 Police v Ponga [2020] NZDC 15619.2 Mr Ponga's notice of appeal advanced two other grounds: that the Judge failed to give him creditfor the extenuating circumstances of the offending and failed to give sufficient credit for the timein custody. These grounds were not addressed in the sentencing submissions received by theCourt.Facts[2] On 27 November 2019 at approximately 10.52 pm, Mr Ponga and his partnerwere travelling on the southern motorway when they were stopped by Police. Themotor vehicle they were travelling in was reported stolen on 20 March 2019 anddisplayed false plates. Inside a bag in the centre console of the car, the Police found acut down .22 rifle, a small rotary magazine attached to the rifle containing 11 .22calibre bullets, a Ruger style magazine loaded with 23 .22 calibre bullets, a smallplastic ammunition container containing 27 .22 calibre bullets, a patu and an axe.Upon being searched at the Police station, Mr Ponga was found to have two .22 calibrebullets in his trouser pockets.[3] The Department of Corrections had also applied to cancel a sentence ofintensive supervision and community work imposed for two injuring with intent toinjure convictions following Mr Ponga's failure to comply with such sentences. Withone of those offences, Mr Ponga had confronted a person about a dispute over thatperson taking a car and money. He punched the victim in the face, then went outsideand punched him about the head on several occasions. The victim suffered an injuryto the soft tissue of his face and fractures of the nose. With the other offence, thevictim was Mr Ponga's partner. At a party, she attempted to pull Mr Ponga away froma person with whom Mr Ponga was arguing. Mr Ponga put one hand around her neckand squeezed it to the extent she could not breathe. While driving home, Mr Pongagrabbed her by the hair and punched her on the left jaw. She suffered a fractured jawin two places which required surgery and the insertion of five plates.[4] On each of these matters, Mr Ponga was sentenced on 29 November 2018 to100 hours' community work and two years' intensive supervision. He was also to besubject to judicial monitoring. As at 11 November 2019, Mr Ponga had completedonly 35 hours of the 100 hours' community work sentence. He had failed to engagein counselling programmes to which he had been directed as part of his sentence ofintensive supervision.Disputed facts[5] While Mr Ponga agreed to the Police summary of facts, he contends hereceived the guns from a friend and was attempting to hand them to the Police as partof an amnesty agreement. He claimed three other guns were handed to the Police, andhis lawyer provided an affidavit about the amnesty agreement.[6] There was information before the District Court which suggested Mr Ponga,or others, were seeking to obtain some credit on sentencing in return for a surrenderingof firearms. There appeared to be nothing definite about what precisely was proposedor what, if any, credit would be given for that. I note that the summary of facts referredto the Police stopping the vehicle and finding the firearm at around 11.00 pm, anunlikely time for the firearm to be handed to the Police, especially so in a stolen car.[7] There has been some dispute as to whether the firearm was loaded. In thesentence indication hearing, Ms Gray for the appellant submitted the firearm was "notactually loadedit is accepted that the magazine had bullets in it but the firearm itselfdid not". Ms Gray referred to an amended summary of facts.3 For the Crown, MsNorman submitted she has not received an amended summary of facts, the firearm wasloaded, and refers to the formal statement of Chris Hickley who confirmed:The cut down firearm was in the load state with a small rotary magazineattached. By 'load state' I mean there was a magazine with round attached tothe firearm, however no round was chambered. I noted that the safety switchwas selected to 'fire'.District Court decisionSentence Indication[8] In his sentence indication, Judge Kellar considered the aggravating factors tobe the firearm was easily accessible and cut-down with a pistol grip commonly usedin offending or for personal protection, ammunition loaded in two magazines waslocated in the bag, Mr Ponga had ammunition on him, and there was a total of 63rounds of ammunition. The Judge considered Mr Ponga's explanation that he was3 Police v Ponga DC Christchurch CRI 2017-009-10560, 19 June 2020 at [22].endeavouring to hand the firearm to Police as part of an arranged amnesty agreementto assist another person awaiting sentence.[9] The Judge noted Mr Ponga's personal aggravating factors were his firearmsoffending in 1999, 2003 and 2008. However, the Judge recognised as mitigatingfactors that Mr Ponga's life had been characterised by violence and deprivation. Heset a starting point of two years for the possession charges, an uplift of two months forthe unlawfully getting into a motor vehicle charge, and four months for Mr Ponga'shistory of offending, leading to a sentence of two years and six months. He thenreduced the sentence by five to six months to recognise Mr Ponga's mitigating factorsand posited a further five months discount would be appropriate if a guilty plea wasentered leading to a sentence of one year and seven months' to one year and eightmonths' imprisonment.[10] Considering Mr Ponga's other charge for driving whilst disqualified and hisperiod in custody and on electronically monitored (EM) bail, the Judge provided anend sentence of one year and four months to one year and six months' imprisonment.He accepted the sentence could be served as home detention of between eight and tenmonths. He said he would not rule out the possibility of community detention butstated it would be tricky and would have to be completed in conjunction with anothersentence.Judge Neave's sentence[11] Judge Neave considered Mr Ponga's sentencing a difficult exercise. The Judgewas asked to impose a sentence for the firearm possession and driving charges forwhich Mr Ponga had received a sentence indication. The Judge was also asked toresentence Mr Ponga on two charges of injuring with intent to injure for offending inMarch 2018 as Community Probation had applied to cancel the original sentence forthose charges and applied for Mr Ponga to receive a prison term due to poorcompliance.[12] Judge Neave noted that Mr Ponga's judicial monitoring sentence collapsed dueto further offending. Mr Ponga then spent approximately five and a half months incustody before being released on EM bail for three months. He had an existingsentence of intensive supervision which suggested Mr Ponga was progressing, but theJudge considered there was a lack of intent and it was therefore impractical to continuewith his community work sentence. The Judge cancelled those sentences.[13] Judge Neave considered Judge Kellar's sentence indication did not providespecific allowance for the time Mr Ponga spent in custody and on EM bail. He reducedthe sentence to recognise these factors but limited his reduction to account for thesentences he had cancelled. Judge Neave sentenced Mr Ponga to six months' homedetention.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.4As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court'sdecision, a court "will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles'".5 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.6 Thefocus of an appellate court must "primarily be on the appropriateness of the endsentence, not the means by which that end sentence has been reached".7SubmissionsAppellant's submissions[15] Ms Gray acknowledged that, in all the circumstances, both with the indicationand the ultimate sentencing, the sentencing exercise was difficult.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].7 Skipper v R [2011] NZCA 250 at [28].[16] Ms Gray submitted Judge Neave erred in failing to consider communitydetention. She submitted community detention was appropriate because Mr Ponga'schildren required his ongoing support. She acknowledged there were difficulties inMr Ponga's relationship with his partner but both parties were motivated to engage incounselling. She submitted a sentence of community detention coupled withsupervision would allow him to take up an offer of employment and would providethe best means of addressing his rehabilitative needs.[17] Ms Gray pointed to R v Knauf where a community detention sentence wasimposed to allow better contact with Mr Knauf's children.8 In Nicholls v Police, HeathJ upheld a sentence of community detention to allow Mr Nicholls to continue to workfor the benefit of his family.9 Ms Gray submitted Mr Ponga's family situation is amatter of primary importance, his home detention is at his uncle's property away fromhis children and partner.[18] Evidence provided to the Court indicates Mr Ponga and his partner of 18 yearshave not had a perfect relationship, but they want to engage in relationship counselling.Together, Mr Ponga and his partner have five children ranging from 19 to eight yearsold. The eldest has a learning disability and requires ongoing care. Ms Gray submittedthe only boy, aged 13, is missing his father and is having trouble at school. Mr Pongaprovided a letter to the Court indicating he wishes to support his teenage son andfamily. Ms Gray also submitted Mr Ponga has rehabilitative needs as detailed by aletter provided to the Court from his mother.[19] Ms Gray submitted the importance of family commitments and hisrehabilitative needs were such that Mr Ponga's sentence should have been forcommunity detention coupled with intensive supervision.Respondent's submissions[20] Ms Norman's submissions for the Crown are reflected in my analysis below.8 R v Knauf HC Auckland CRI 2009-090-7949, 8 September 2009.9 Nicholls v Police [2017] NZHC 2209 at [25].Analysis[21] Mr Ponga's main contention was that the overall sentence of home detentionwas not the least restrictive sentence available, and community detention should havebeen imposed. My analysis will therefore primarily focus on this issue.[22] I consider the end sentence of six months' home detention was generous. Iaccept Ms Norman's submission that Judge Neave made additional reductions againstJudge Kellar's indicated starting point for the time Mr Ponga had spent in custody andon EM bail on the basis Judge Kellar had not taken those matters into account. JudgeKellar had in fact reduced his initial sentence to account for those factors.10[23] After discounting Judge Kellar's starting point, thinking the Judge had nottaken those matters into account, Judge Neave then provided for an uplift for the twocharges of injuring with intent to injure offending. The charges for which Mr Pongawas resentenced were serious. One victim had received a broken nose, the other afractured jaw. The sentence originally imposed for that offending was 100 hours'community work and two years' intensive supervision. Because of the mistakendiscounting for time spent on EM bail and the time Mr Ponga spent in custody, withthe sentence imposed by Judge Neave, Mr Ponga avoided an additional sentence forthat offending.[24] Judge Neave did not refer to the possibility of community detention in hissentencing remarks, however, that does not necessarily mean he did not consider it asa possible sentence. There was detailed reference in the pre-sentence report relevantto a consideration of community detention. In any event, the information before theJudge and before me indicated that a sentence of community detention would not havebeen appropriate for Mr Ponga.[25] A Corrections' report had stated:Mr Ponga's ability to comply with a community based sentence isquestionable as he has previous non-compliance in his conviction history andis currently very non-compliant with his sentence of Community Work.10 Police v Ponga, above n 3, at [12]-[14].[26] Mr Ponga served one month in prison due to poor compliance with communitywork in 2019. Corrections' application to cancel intensive supervision dated 15January 2020 noted "Mr Ponga reports sporadically but does not engage in therehabilitative opportunities offered to him".[27] Mr Ponga received what could be said to be a generous sentence for the originalinjuring with intent to injure charges. In part, that was because the sentencing Judgegave him a credit for his commitment to continuing work in terms of rehabilitation. Itwas accordingly relevant but disappointing that Mr Ponga had shown poor compliancewith his sentence of intensive supervision, failed to attend certain counsellingprogrammes as directed and had not shown any motivation to address a pattern ofviolence involving his partner.[28] Not only did Mr Ponga fail to engage with the rehabilitative aspects of hissentence of intensive supervision, he reoffended with the firearm and ammunitionoffences, the offence of unlawfully getting into a motor vehicle and driving whiledisqualified.[29] As Ms Norman submitted, community detention, of itself, would not be arehabilitative sentence as the only condition that can be imposed is a curfew. It wasno doubt for that reason Ms Gray submitted, combined with community detention, asentence of intensive supervision should be imposed, with conditions to ensure MrPonga would be assisted with rehabilitative programmes. He was however beingresentenced on the injuring with intent to injure charges because he failed to engagewith programmes to which he was directed while previously serving a sentence ofintensive supervision.[30] It was suggested that a sentence of community detention would permit MrPonga to take up employment on other properties near his uncle's farm where he iscurrently sentenced to home detention. I was however told during the hearing of theappeal that he is permitted to leave the home detention address for such employment.[31] Mr Ponga's partner would like his assistance with the children. Even with asentence of community detention, Mr Ponga's ability to do this would be limited.There is no suggestion Mr Ponga would be able to live with his partner if oncommunity detention. He remains disqualified from driving so would be unable toassist with the children's transport and activities. With home detention, it is possiblefor the children to see him at his uncle's address. Given the domestic violence thathas occurred in the past, including an incident that led to one of the injuring with intentto injure offences for which Mr Ponga had to be resentenced, there is likely to be somebenefit for the family if Mr Ponga's contact with his children and his partner is to takeplace at his uncle's address.[32] In Nicholls v Police, the High Court upheld a decision of the District Court tosentence an offender to community detention. The Judge was only persuaded to grantcommunity detention because the offender had been to several programmes andengaged thoroughly with rehabilitative options.11 This indicated to the Judge it wouldbe beneficial for the children for Mr Nicholls to be able to continue to work in thecommunity. This is not the case here. Mr Ponga has not, as Ms Norman indicated,always engaged with the rehabilitation opportunities offered to him.[33] A Court may only impose community detention if satisfied the sentence wouldachieve the s 7 Sentencing Act 2002 purposes of accountability, responsibility,denunciation and deterrence.[34] I consider a sentence of community detention would not serve the purposes ofdeterrence, denunciation and accountability in this case. Mr Ponga was beingsentenced for serious firearms offending. He was also being resentenced on the twoinjuring with intent to injure charges because of his failure to attend a sentence ofcommunity work and intensive supervision. Mr Ponga had shown a disregard forprevious community-based sentences. The PAC report noted Mr Ponga posed amedium to high risk of reoffending given his inability to comply with sentences in thepast. His previous community-based sentences have not had the requisite deterrentand denunciating effect. All this indicates community protection would not be bestserved by granting community detention.11 Police v Nicholls [2017] NZDC 17873 at [10][35] For all these reasons I consider the sentencing Judge was correct in decidingthat home detention was the least restrictive sentencing option available in all thecircumstances. I do not consider there was any error in the District Court sentencingthrough the Judge not expressly discussing the option of community detention. Thesentence imposed had to provide for denunciation and accountability, and forprotection of the community.[36] Mr Ponga does have rehabilitative needs. Other Judges have noted that, despitehis lack of engagement in appropriate rehabilitative programmes, his pattern ofoffending is diminishing in seriousness. While serving his sentence of homedetention, he has the ability to keep working on the changes and doing all he can tofurther reduce the risk of offending in the way he has done in the past. That is how hecan best ensure he is available to provide positive support for his family.[37] The appeal is dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.