R v Fa'Auli HC Auckland CRI 2008-092-7177

[2010] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-007177

QUEEN

v

TIMO FA'AULI EKUENI PURCELL RALPH WENDT

Hearing:         12 November 2010

Counsel:         M Wharepouri for Crown

I West for Prisoner Timo Fa'auli
P Le'au'anae for Prisoner Ekueni Purcell
M Tuilotolava for Prisoner Ralph Wendt

Sentencing:     12 November 2010

SENTENCING NOTES OF MILLER J

[1]      Gentlemen, you appear today for the completion of your sentencing, which began on 21 October and was adjourned to today’s date so that home detention appendices could be prepared.

[2]      What I have to say today will be quite brief;   it should be read with my sentencing notes of 21 October, in which I carried out the sentence calculation and arrived at what would be the proper term of imprisonment for each of you.  Those

terms were as follows:

R V TIMO FA'AULI AND ORS HC AK CRI-2008-092-007177  12 November 2010

•    Timo Fa’auli :             22 months imprisonment;

•    Ekueni Purcell :          19 months imprisonment;

•    Ralph Wendt :            20 months imprisonment.

[3]      I  now  turn  to  deal  with  home  the  detention  appendices.    I  express  my gratitude to the probation service for preparing them swiftly at my request.

Timo Fa’auli

[4]      The  report  concludes  that  the  proposed  residence,  151  Princes  Street, Otahuhu East, is appropriate, but there are concerns about some of those living there. The other occupants are the family of your partner.  One of those people, her father, has previously been sentenced to community work for drink driving offences, the last being in 2006.  Another, her 20 year old brother, has previously been sentenced to imprisonment for serious offending including aggravated robbery and indecent assault.   However, their offending was not related to your own and the probation officer  reports  that  there  is  nothing to  suggest  you  would  not  comply with  the requirements of an electronically monitored sentence.

[5]      Two alternative addresses were identified;   one is that of your parents, at Mangere, and the other is the address at which Mr Ekueni Purcell apparently proposed to live.  Neither has been evaluated.

[6]      In my view it is appropriate that I require you to serve the sentence at the nominated address, 151 Princes Street.  As I have said it is also the home of your partner and children, and having regard to your health problems I think the risk of further offending is low.

[7]      So your sentence is 11 months home detention, on each charge.

(1)You are to reside at 151 Princes Street, Otahuhu East, Auckland for the duration of home detention;

(2)You are to proceed from here directly to 151 Princes Street, Otahuhu East, Auckland, and there await the arrival of the probation officer and the monitoring company representative;

(3)You are to abstain from the consumption of alcohol and non-prescription drugs;

(4)      You may not associate or have contact with your co-offenders;

(5)You  are  not  to  have  contact  with  the  victims  of  the  offending,  or  their families.

Ekueni Purcell

[8]      There  has  been  no  suitable  address  identified  in  your  case,  and  as Mr Le'au'anae signalled at the last hearing, your preference is to be sentenced to imprisonment having regard to the time  you have served  on remand.   So  your sentence is 19 months imprisonment on each charge.

Ralph Wendt

[9]      Mr Wendt, you propose to live at 81 Yates Road, Mangere East.  The address is suitable.   You live there with your stepfather, three siblings and other extended family.   Also living with you is your three year old daughter, and you have a ten month old daughter for whom you care from time to time.  The occupants all appear to be suitable and the probation service supports home detention.  Accordingly, your sentence is 10 months home detention on each charge.

(1)       You are to travel directly to 81 Yates Road, Mangere and there await the arrival of the probation officer; and the monitoring company representative;

(2)       You are to reside at that address for the duration of the home detention;

(3)You must attend a drug and alcohol programme as directed by the probation officer and alcohol and drug clinician;

(4)You are to attend and complete a Departmental programme as directed by your probation officer and programme facilitator;

(5)And  you  may  not  consume  or  be  in  the  possession  of  alcohol  or  non- prescription drugs for the duration of your sentence.

[10]     Gentlemen, you may stand down.

Miller J

Solicitors:

Meredith Connell, Auckland for Crown