R v Falamoe - [2023] NZHC 1268

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-083-1530 CRI-2022-483-10

CRI-2022-083-400 [2023] NZHC 1268

THE KING

v

DAVID ALLEN FALAMOE

Hearing: 26 May 2023

Appearances:

M M Wilkinson-Smith for the Crown

J C Gwilliam and J W Griffiths for Mr Falamoe

Judgment:

26 May 2023

SENTENCING OF COOKE J

[1]Mr Falamoe you are now to be sentenced on:

(a)two charges of sexual violation by rape;1

(b)one charge of sexual violation by unlawful sexual connection;2

(c)two charges of attempted sexual violation;3

(d)two charges of indecent act on a child under 12 years old;4

1      Crimes Act 1961, s 128(1)(a) and s 128B – maximum 20 years’ imprisonment.
2      Section 128(1)(b) and s 128B – maximum 20 years’ imprisonment.
3      Section 129(1) – maximum 10 years’ imprisonment.
4      Section 132(3) – maximum 10 years’ imprisonment.

R v FALAMOE [2023] NZHC 1268 [26 May 2023]

(e)one charge of compelling an indecent act with an animal;5

(f)one charge of assault with intent to injure;6

(g)two charges of male assaults female;7 and

(h)one charge of indecent assault.8

[2] You were found guilty of these charges following two separate trials with the exception of the last charge of indecent assault to which you entered a guilty plea following the verdict at the second trial.

[3] As you know the Crown seeks a sentence of preventive detention. To explain the sentence that I intend to impose upon you I will first set out the facts of your offending. I will then address the sentence of imprisonment that would be appropriate for that offending — that involves assessing the starting point for the offending overall by comparison with similar cases, and then assessing whether there should be any uplifts or discounts to that starting point because of circumstances personal to you. After I have done that, and reached a conclusion on the finite term of imprisonment that ought to be imposed in your case, I will then go on to assess whether it is necessary to impose the sentence of preventive detention and any minimum period of imprisonment.

The facts of the offending

[4]As indicated I will start with the facts of your offending.

[5] I will refer to the victims by initials rather than their names to assist in the process of protecting their identities. Your offending involves five separate victims: AH, a 17–18 year old girl; TM, a woman in her 40s; two children aged 6 and 9 years; and finally JM the person you indecently assaulted.

5      Section 142A – maximum 14 years’ imprisonment.
6      Section 193 – maximum 3 years’ imprisonment.
7      Section 194(b) – maximum 2 years’ imprisonment.
8      Section 135 – maximum 7 years’ imprisonment.

[6] In relation to AH you have been found guilty of one charge of sexual violation by rape, one charge of assault with intent to injure, and one charge of male assaults female. The offending took place between November 2014 and October 2016. You formed a relationship with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Falamoe

Details

AGLC: R v Falamoe [2023] NZHC 1268
Case: [2023] NZHC 1268
Decision Date: 26 May 2023

CaseChat Overview and Summary

The case of R v Falamoe involved the sentencing of David Allen Falamoe, who had been found guilty of multiple charges of sexual offenses against several victims, as well as other related charges. The court, presided over by Justice Cooke, outlined the facts of the offenses, which involved multiple victims over a period of years. These offenses included rape, sexual violation, indecent acts on children, and assault with intent to injure. The court took into account the principles of the Sentencing Act 2002 and the guidelines set out in previous cases when determining the appropriate starting point for the sentence, ultimately settling on a starting point of 13 years imprisonment. The court considered both aggravating and mitigating factors, ultimately deciding not to impose any further uplift or discount to the starting point. The court also deliberated on whether to impose a sentence of preventive detention, ultimately deciding against it, as it was not satisfied that the risk of reoffending would still exist at the end of the sentence. The court concluded by imposing a sentence of 13 years imprisonment, with a minimum period of imprisonment of five years and six months, and ordered that the sentence be served concurrently for the various charges.

Final orders: David Allen Falamoe is sentenced to 13 years’ imprisonment, with a minimum term of imprisonment of five years and six months, to be served concurrently on the various charges.

Orders