R v Fatu

Case [2020] NZHC 1893 31 July 2020

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-1413

[2020] NZHC 1893

THE QUEEN

v

BENNY PENI FATU DON IOSEFA EKEROMA

Hearing: 31 July 2020

Appearances:

B D Tantrum and S S McMullan for the Crown G J Newell and DMM Dickinson for Mr Fatu L B Cordwell and E I Haronga for Mr Ekeroma

Date of sentence:

31 July 2020

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel:
Meredith Connell, Crown Solicitor, Auckland G J Newell Barrister, Auckland
DMM Dickinson Barrister, Auckland L B Cordwell Barrister, Auckland
E I Haronga Barrister, Auckland

R v FATU and EKEROMA [2020] NZHC 1893 [31 July 2020]

[1] Mr Fatu, Mr Ekeroma, as you know, I now am to sentence you on your convictions for manslaughter,1 and aggravated robbery.2 In sentencing you, I must accept as proven all facts that are essential to your pleaded or proven guilt.3

[2] I have considered what counsel have had to say, both for you and for the Crown. They recommend a starting point for your imprisonment of 10 to 12 years , with a variety of uplifts and discounts, credits to reflect factors personal to each of you.

[3] I am not bound by their recommendations. I must satisfy myself of the appropriate sentence for the gravity – the seriousness – of your offending, including your culpability – your responsibility – for it.

Background

[4]I need to cover off the background.

[5] On 11 December 2018, after making arrangements earlier in the day to do so, you both went to Shannon Shelby Baker’s home in Auckland’s Sandringham to obtain money and methamphetamine. You each entered into Mr Baker’s home, intending to commit an imprisonable offence. You both intentionally attacked Mr Baker. He was beaten and incapacitated in his own home late at night. Your assault was a substantial and operative cause of Mr Baker’s death. You robbed him of methamphetamine, a wallet containing $600 in cash, and car keys. Mr Baker died of asphyxiation after you left him face-down on a bed “hog-tied”, with hands and feet tied together behind his back, and a pair of shorts likely tied over his nose and mouth.

[6] As trial judge, it is my task to flesh out the factual particulars of the charges in a manner not inconsistent with the jury’s verdict.4 Implicit in that verdict is your intentional assault, robbery, binding, gagging, and abandonment of Mr Baker; you

1      Crimes Act 1961, s 177. Maximum penalty life imprisonment.
2      Section 235(b). Maximum penalty 14 years’ imprisonment.
3      Sentencing Act 2002, s 24(1)(b).
4      Edwardson v R [2017] NZCA 618 at [105]–[107].

both are equally responsible for Mr Baker’s death, having pleaded guilty to the joint enterprise aggravated robbery.5

[7] The assault took place in the privacy of Mr Baker’s home, without any witnesses. The nature of the assault, and the immediate circumstances in which it took place, are not matters on which I can make clear factual findings. I…

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 Fatu

Details

AGLC: R v Fatu [2020] NZHC 1893
Case: [2020] NZHC 1893
Decision Date: 31 July 2020

CaseChat Overview and Summary

The case of R v Fatu concerns the sentencing of Benny Peni Fatu and Don Iosefa Ekeroma for their convictions of manslaughter and aggravated robbery. The court was required to determine the appropriate sentence for the gravity and seriousness of the offending, taking into account the effect on the victim and the statutory purposes and principles of sentencing. The court had to decide on the starting point for their imprisonment, taking into account various aggravating and mitigating features of the offending, as well as the personal circumstances of the offenders.

The court found that the offenders' actions were driven by a problem of serious and mindless violence, which was a matter of widespread and continuing concern within the community. The court considered the premeditated nature of the intended robbery, the extreme violence shown to the victim, and the fact that the victim was attacked in his own home. The court also noted that the offenders had significant and relevant criminal histories, and that their offending was driven by their methamphetamine use.

After considering the aggravating and mitigating features of the offending, as well as the personal circumstances of the offenders, the court decided on a starting point of 12 years' imprisonment for both offenders. The court then adjusted this starting point to take into account the offenders' personal circumstances, resulting in a sentence of ten years and six months' imprisonment for Benny Peni Fatu, and ten years' imprisonment for Don Iosefa Ekeroma. The court also imposed a minimum period of imprisonment of 40% of the end sentence for both offenders.

In summary, the court sentenced Benny Peni Fatu to ten years and six months' imprisonment, with a minimum period of imprisonment of four years and three months, and Don Iosefa Ekeroma to ten years' imprisonment, with a minimum period of imprisonment of four years. The court's decision was based on the gravity and seriousness of the offending, the effect on the victim, and the statutory purposes and principles of sentencing.

Orders