R v Ponini-Kara

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-087-131

[2018] NZHC 1489

THE QUEEN

v

TUXEDO PONINI-KARA

Hearing:
21 June 2018

(Heard at TAURANGA)

Appearances:

O M Salt for Crown

P Attwood for Defendant

Judgment:

21 June 2018

SENTENCING REMARKS OF LANG J

R v PONINI-KARA [2018] NZHC 1489 [21 June 2018]

[1] Mr Ponini-Kara, you appear for sentence today having pleaded guilty to a charge of rioting. You earlier faced a charge of participating in an organised criminal group, but you were discharged on that charge by an earlier judgment of this Court.1

Background

[2] The events that gave rise to the charge occurred on 17 January 2017. On that day you were part of a group of Black Power members who decided to accost a funeral procession comprising principally members of the rival Mongrel Mob gang. You met at an area known as Valley Road, and then you went to a service lane. The rioting charge was laid as a result of the events that occurred in or about the service lane. You and other members of the Black Power accosted the funeral procession. Missiles were thrown at the procession including sticks, bottles and stones. The confrontation ended when somebody in a Mongrel Mob vehicle discharged a firearm at the Black Power group. This caused them to disperse, followed in close succession by a car driven by members of the Mongrel Mob. You were then seen in a vehicle that was being driven away from the scene at speed. When the police stopped the vehicle, you ran away but were located soon afterwards. When the police searched the vehicle, they found a machete in the driver’s foot well and a hammer in the pocket of the rear passenger seat.

[3] You acknowledge you are an associate member of the Outback Black’s Chapter of the Black Power gang, and clearly your involvement with the gang led to your participation in this offending. The extent to which you maintain your association with this gang will, in my view, determine whether or not you appear again before the court.

Starting point

[4] The starting point I take for your offending is the same as that taken by Wylie J in relation to one of your co-defendants, Mr Moeke.2

1 R v Ponini-Kara [2018] NZHC 605.
2 R v Moeke [2018] NZHC 1426.

[5] Your offending is of similar culpability to Mr Moeke’s, as both counsel agree. Wylie J adopted a starting point of 18 months imprisonment and I take the same starting point in your case.

Aggravating factors

[6] You have 29 previous convictions, many of which are for offending involving violence. I propose to add an uplift of two months to reflect that fact. This is not to punish you again in respect of your earlier offending. Rather, it makes your present offending more serious because you have failed to learn from earlier sentences. This leaves a sentence of 20 months imprisonment.

Mitigating factors

[7] In January 2018, your counsel wrote to the Crown offering to plead guilty to the rioting charge if they would withdraw the more serious charge of participating in an organised criminal group. The Crown did not accept that offer, and it preceded to a defended hearing following which you were discharged. I consider this amounts to an early offer to plead guilty to the charge you now face. I therefore propose to allow a discount of five months, or 25 per cent, in relation to your guilty plea. This produces an end sentence of 15 months imprisonment.

[8] You have now been in prison since January 2017. As a result, the sentence I have just imposed will lead to your immediate release.

[9] Your counsel advises me that it has not been possible for you to apply for bail because initially you and your co-offenders were not being permitted by the courts to return to the Whakatane area and you could not find a bail address outside that area. Later on, you could not find sufficient family support to put forward a new bail address in the Whakatane area. This is obviously a great pity, because you have now spent considerably longer in custody than you ought to have.

Sentence

[10]On the charge of rioting you are sentenced to 15 months imprisonment.

Lang J
Solicitors:
Crown Solicitor, Tauranga
P T Attwood, Barrister, Tauranga

The case of R v Ponini-Kara, presided over by Lang J, involved a defendant who had pleaded guilty to the charge of rioting. The defendant, Tuxedo Ponini-Kara, was part of a group that had accosted a funeral procession, resulting in a confrontation that led to the charge. The sentencing hearing was held on 21 June 2018 at the Rotorua Registry of the High Court of New Zealand. The Crown was represented by O M Salt, while the defendant was represented by P Attwood.

The primary legal issues before the court were the determination of an appropriate starting point for the sentence and the consideration of both aggravating and mitigating factors. The court had to decide on the appropriate uplift for the defendant's extensive criminal history, which included numerous convictions for violent offenses, and a suitable discount for the defendant's early offer to plead guilty.

Lang J set the starting point for the sentence at 18 months imprisonment, following the precedent set by Wylie J for a co-defendant, Mr Moeke. Given the defendant's 29 previous convictions, particularly those involving violence, the court added an uplift of two months to the starting point, resulting in a total sentence of 20 months imprisonment. The court then applied a discount of five months due to the defendant's early guilty plea, resulting in a final sentence of 15 months imprisonment. This sentence led to the defendant's immediate release, considering he had already spent a significant amount of time in custody. The court acknowledged the unfortunate circumstances that prevented the defendant from applying for bail earlier.

The final orders of the court were that the defendant was sentenced to 15 months imprisonment for the charge of rioting.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established