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R v Fausia

R v Fausia

Case [2024] NZHC 2448 28 August 2024

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Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-2616

[2024] NZHC 2448

THE KING

v

SAMUELU ALEX FAUSIA

Hearing: 28 August 2024

Appearances:

H D L Steele for Crown

B C S Moyer for Defendant

Sentencing:

28 August 2024

SENTENCING NOTES OF WILKINSON-SMITH J

Solicitors:
Meredith Connell, Auckland
B C S Moyer, Barrister, Auckland

R v FAUSIA [2024] NZHC 2448 [28 August 2024]

Introduction

[1] Mr Fausia, on 17 April 2024, you pleaded guilty to one charge of manslaughter,1 one charge of possession of methamphetamine for the purpose of supply,2 and one charge of unlawful possession of ammunition.3 A further charge of possession of methamphetamine was withdrawn after tests confirmed the suspected substance was not methamphetamine.

[2] You are also currently awaiting sentence in the Auckland District Court, scheduled for 17 September 2024, having pleaded guilty to charges of assault with intent to cause grievous bodily harm, possession of methamphetamine for supply, and receiving property. The sentence I give you today will be taken into account when you appear for sentence in the District Court, but the District Court will sentence you separately on those matters.

[3] I want to acknowledge and thank the whānau of the man that you killed, Adrian Selwyn. You have heard the victim impact statements read in Court. Whatever sentence I impose today cannot change what has happened and it cannot bring Mr Selwyn back to his whānau. It is important that you have heard what they have to say. This sentencing is not only about you; it is about Mr Selwyn and his whānau as well. Whatever sentence I impose on you today, you will still go back to your family eventually and you will see your children. Mr Selwyn will not.

The offending

[4] In entering your guilty plea, you accepted a summary of facts. It is necessary for me to summarise those facts in this decision.

[5] On 7 March 2023 at approximately 10:15 pm, you were contacted by Mr Logo who said that a person he had supplied methamphetamine to, Mr Selwyn, was complaining about the poor quality of methamphetamine Mr Logo had supplied him. Mr Logo said that he would pick you up so you could “fasi”, meaning smack or beat,

1      Crimes Act 1961, ss 171, 160(2)(a), 177, and 66(2). Maximum penalty: life imprisonment.
2      Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty: life imprisonment.
3      Arms Act 1983, s 45(1). Maximum penalty: Four years’ imprisonment or $5,000 fine.

Mr Selwyn. Mr Logo had delivered the methamphetamine to Mr Selwyn at his home address in the Auckland Newmarket Motel some 15 minutes earlier. Mr Logo had earlier relayed the same information to your brother, Andrew Fausia.

[6] At about 10:45 pm, you, Mr Logo and your brother arrived at the Motel. Mr Logo messaged Mr Selwyn telling him to “come out”. As Mr Selwyn approached the three of you, Mr Logo assumed a fighting stance. Mr…

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 Fausia

Details

AGLC: R v Fausia [2024] NZHC 2448
Case: [2024] NZHC 2448
Decision Date: 28 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of The King v Samuelu Alex Fausia involved the defendant, Mr. Fausia, who pleaded guilty to one charge of manslaughter, one charge of possession of methamphetamine for the purpose of supply, and one charge of unlawful possession of ammunition. The case was heard and sentenced on 28 August 2024, with H D L Steele appearing for the Crown and B C S Moyer for the defendant. The sentencing was to be taken into account when Mr. Fausia appeared for sentencing in the Auckland District Court for other charges. The court acknowledged the victim's family, Adrian Selwyn, and emphasized that the sentence could not undo the harm caused.

The legal issues the court had to decide included determining the appropriate starting point for sentencing based on the seriousness of the manslaughter charge, considering the aggravating factors such as the attack on the head, the serious injury caused, and the presence of multiple attackers, and evaluating the appropriate uplift for the remaining charges of methamphetamine possession for supply and unlawful possession of ammunition. The court also had to consider personal mitigating factors such as the defendant's guilty plea, remorse, and the impact of his incarceration on his family.

The court's reasoning and outcome were based on the principles and purposes of sentencing, including accountability for the harm done, promoting a sense of responsibility in the defendant, denouncing the conduct, and deterring future offending. The court found that the defendant's offending fell within band two of Taueki, leading to a starting point of six years’ imprisonment. However, considering analogous cases of manslaughter, the court determined a starting point of five years and six months’ imprisonment was appropriate. An uplift of three years and six months’ imprisonment was applied for the remaining charges, resulting in a global starting point of nine years’ imprisonment. The court granted a 15% reduction for the guilty plea, a 10% discount for personal mitigating factors, and a 5% credit for the impact on the defendant's family. However, the court did not grant a discount for remorse, finding it to be hollow given the defendant's conduct after the attack and while on bail. The final sentence was seven years’ imprisonment for manslaughter, a concurrent six years for possession of methamphetamine for supply, and six months for possession of ammunition, with orders for the destruction of drug items, ammunition, and forfeiture of cash.

Orders