R v Fausia
[2024] NZHC 2448
•28 August 2024
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of supply,2 and one charge of unlawful possession of ammunition.3 A further charge of possession of methamphetamine was withdrawn after tests confirmed the suspected substance was not methamphetamine.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 Selwyn did not appear aggressive at that point.
[7] Within seconds you kicked Mr Selwyn in the head knocking him unconscious. Mr Selwyn fell backwards and hit the back of his head on the pavement. Mr Selwyn was unable to break his fall. You say that you attempted to break it but were unsuccessful. You and your co-offenders attempted to wake Mr Selwyn before you and Mr Logo carried Mr Selwyn back to his room and placed him on his bed.
[8] The assault was captured on the Motel’s private CCTV system. You and your co-offenders spent seven minutes immediately after the assault going between Mr Selwyn’s room and the vehicle you arrived in. All three of you were seen on your cell phones. During this time no attempt was made to contact emergency services nor seek assistance from any of the Motel’s other occupants. The three of you then left the scene.
[9] Mr Selwyn was discovered deceased eight days later by the Motel’s staff after his family had become concerned for his welfare. His body was in a very bad state, and he was unrecognisable as a result of being undiscovered for the period of time following his death. Mr Selwyn suffered a contusion and skull fracture to the back of his head and a brain bleed. The cause of death was blunt force trauma to the head.
[10] On 4 April 2023, Police executed a search warrant at your address. They located 432.9 grams of methamphetamine in a red shoe box, $16,890 cash, and 30 rounds of shotgun ammunition.
The principles and purposes of sentencing
[11] In sentencing you, I must have regard to the purposes and principles of sentencing. Those I consider particularly relevant in your case are:4
(a)Accountability for harm done. As I have said, you have heard the victim impact statements. The harm that you caused is not repairable. You have taken a life. You did not mean to kill which is why the charge is manslaughter, but you did an incredibly violent and dangerous act and when your victim was unconscious, and probably dying, you did not call emergency services. You did not even leave him where he fell so that he might have been seen by someone else who could call emergency services. You and your associates hid him away from any chance of help. No doubt you hoped he would wake up and be alright, but your main motivation I have no doubt, was to distance yourself from what had happened and avoid police attention — both for the drug offending that lay behind the violence and for the violence itself.
(b)Promoting in you a sense of responsibility for and an acknowledgement of your role in that harm. I have read the letter that you wrote. I hope that you are beginning to accept actual responsibility because your history does not suggest that you have learnt that lesson very quickly.
(c)To denounce the conduct in which you were involved.
(d)To deter you from behaving this way in the future and to deter others who may think about offending in this way. There must be a deterrent element to your sentence to disincentivise others from causing similar harm and to disincentivise you. Deterrence in your case is a real factor.
(e)To assist with your rehabilitation — this serves to not only improve your personal circumstances going forward but to further reduce the risk of you re-offending. It is in everyone’s interests, Mr Fausia, if you
4 Sentencing Act 2002, s 7(1).
can rehabilitate and can stop the violence and drug offending that led to this outcome and the situation that you find yourself in today.
[12] In imposing your sentence, I must take into account your personal, family, whānau, community and cultural background; the gravity of your offending; and the general desirability of consistency with appropriate sentencing levels.5 I must also impose the least restrictive sentence that is appropriate in the circumstances and consider any personal circumstances that would render the means of dealing with your offending disproportionately severe.6
[13] I will first determine the “starting point” for your sentence based on the seriousness of your offending for the lead charge of manslaughter. I will then uplift that starting point to account for your other charges — primarily the possession of methamphetamine for supply.
[14] I will then consider your personal circumstances, including the appropriate credit for your guilty plea, any mitigating personal circumstances and finally any aggravating personal circumstances. That will produce your end sentence.
Starting point
[15] As identified above, manslaughter is the lead charge. There is no tariff case for manslaughter, however, as accepted by counsel the appropriate approach is to apply the bands from R v Taueki adjusting for the fact that the victim in this case has died.7 For completeness, I will “cross-check” comparable manslaughter sentencings.
[16] In Taueki the Court of Appeal established three bands for wounding with intent to cause grievous bodily harm (GBH) taking into account matters contributing to the seriousness of GBH offending and matters reducing the seriousness of GBH offending.8
5 Section 8(a),(e) and (i).
6 Section 8(g) and (h).
7 Taueki v R [2005] 3 NZLR 372 (CA). See R v Tai [2010] NZCA 598 at [12]; Iota v R [2013] NZCA 235 at [24]–[28]; Waipuka v R [2013] NZCA 661 at [32]; Williams v R [2023] NZCA 637 at [6]–[7]; and R v Nagel [2023] NZHC 2908.
8 Taueki v R, above n 7, at [34].
[17] Band one proposes a starting point of three to six years’ imprisonment for offending of violence at the lower end of the spectrum of GBH offending.9 A starting point at the lower end of the band is appropriate where none of the identified aggravating factors are present; a higher starting point is required when one or more of the aggravating factors are present.10 Band two proposes a starting point of five to 10 years imprisonment for offending involving two or three identified aggravating factors.11 Band three proposes a starting point of nine to 14 years’ imprisonment for serious offending involving three or more of the identified aggravating features, where the combination of aggravating features is particularly grave.12
[18] The Crown considers that your offending falls within band two of Taueki submitting that a starting point of five years and six months’ imprisonment is appropriate. Mr Moyer, on your behalf, submits that a starting point of four years and six months’ imprisonment is appropriate.
[19] The outcome in your case was extreme, but the actual violence was one kick, and I must remember that.
[20] The Crown considers the attack to the head, the resulting serious injury, and the presence of multiple attackers to be aggravating factors of your offending. Your counsel accepts the identification of these factors and submits that extreme violence and premeditation are not aggravating factors present in this offending.
[21]I find the aggravating factors of your offending include:
(a)Attacking the head — you kicked Mr Selwyn directly in the head. Such an attack can, and did, have serious consequences. This is because of the vulnerability of the head and the increased risk of serious injury.
(b)Serious injury — Mr Selwyn died as a result of your offending.
9 At [34].
10 At [36].
11 At [34] and [38].
12 At [34] and [40].
(c)Multiple attackers — whilst you were the only person to physically attack Mr Selwyn the presence of two others increased the threat posed to Mr Selwyn and would have divided his attention during the altercation.
(d)Premeditation to a degree — you went to the Motel intending to have a physical altercation with Mr Selwyn. There is no premeditation in terms of intending to kill him, but you went there knowing violence was intended and for that purpose.
[22] I do not consider, as a legal definition, that extreme violence is an aggravating factor. Your attack on Mr Selwyn was not prolonged and did not involve multiple assaults. Your attack was however unprovoked, and there was a level of premeditation given that you were at the Motel to, as you say “fasi” Mr Selwyn. While you said to the pre-sentence report writer that the word “fasi” did not literally mean to beat him, very quickly after you arrived that is what you did, so I find it difficult to accept that that was not what you expected to happen. There is also the matter of your conduct after the attack. You made no attempt to help Mr Selwyn and instead actively took steps to conceal what had happened to him.
[23] Taking a strict Taueki approach, I consider that your offending falls within band two of Taueki and that a starting point of six years’ imprisonment would apply.
[24] However, I now turn to considering analogous cases of manslaughter. The following cases have been referred to me:
(a)R v Nagel:13 in which a starting point of four years and six months’ imprisonment was imposed for one charge of manslaughter.14 Mr Nagel and his associates pursued an individual they believed to have taken pictures of them causing the victim to attempt to defend himself and throw a punch. One of Mr Nagel’s associates kicked the victim in the shin before Mr Nagel kicked the victim, martial arts style,
13 R v Nagel, above n 7.
14 At [30].
in the face. The victim lost consciousness and fell to the footpath hitting his head. The victim was placed into an induced coma and died ten days later. The Court took into account the slight degree of premeditation, serious injury, multiple attackers, the attack on the head, and Mr Nagel’s conduct after the offence failing to provide the victim help and celebrating the attack.
(b)Williams v R:15 in which a starting point of five years’ imprisonment was upheld on appeal.16 The victim had been urinating in a public carpark and asked Mr Williams why he was looking at his genitals. This prompted Mr Williams to U-turn his vehicle to confront the victim who he punched in the head causing him to fall to the ground hitting his head. Mr Williams also kicked the victim in the leg before leaving the carpark. He returned 10 minutes later to check whether the victim was alive. The victim died the next day. The aggravating factors were that the attack was unprovoked and forceful, that Mr Williams intended to cause serious harm, the element of premeditation, and Mr Williams’s conduct after the attack.
(c)R v Whaanga:17 a starting point of five and half years’ imprisonment for a charge of manslaughter.18 Both Mr Whaanga and the victim had been searching for a carpark. Mr Whaanga was with his partner and his one-year-old child, the victim was with his elderly mother. Mr Whaanga engaged in a verbal confrontation with the victim after he parked in a “parents’ carpark”. Mr Whaanga then headbutted the victim causing him to fall to the ground and hit his skull on the ground. Mr Whaanga then entered the supermarket before attempting to leave the scene. He was stopped and ended up kneeling beside the victim who died the next day. The Court considered the unprovoked nature of the attack, the serious injury caused and Mr Whaanga’s conduct after the attack.
15 Williams v R, above n 7.
16 At [16].
17 R v Whaanga [2020] NZHC 1318.
18 At [54].
(d)Murray v R:19 a starting point of five years’ imprisonment was upheld on appeal.20 The victim walked into a group of four men, including Mr Murray and a verbal altercation ensued. This turned physical but was broken up. The victim continued his verbal exchange with the group. Mr Murray then pushed the victim away, before punching him in the side of the face causing the victim to fall backwards and strike his head on the pavement. Mr Murray did not help the unconscious victim fleeing with his associates in a taxi. The Court considered the force of the punch, the attack to the head, the intention to cause serious injury, and the lack of provocative conduct by the victim.
(e)R v Palmer:21 a starting point of four years’ imprisonment for one charge of manslaughter.22 The victim had a verbal altercation with Mr Palmer’s group of associates on a night out. The altercation turned physical, and Mr Palmer punched the victim once in the head causing him to impact a store window and then the ground. The victim remained on the ground and Mr Palmer ran from the scene. The victim died from his injuries. The aggravating factors were the attack to the head, the serious violence and harm, the unprovoked nature of the attack, and the victim’s vulnerability due to his intoxication.
[25] I set out those cases because it is important that there is consistency in sentencing.23
[26] There are clear similarities between your offending and the above authorities, in that each victim was struck in the head, lost consciousness, and fell hitting his head on the pavement. I acknowledge the similarities between your offending and that in Nagel due to the number of offenders present, the serious injury caused, and the fact that the strike was a kick rather than a punch. However, the context of your offending
19 Murray v R [2013] NZCA 177.
20 At [29].
21 R v Palmer [2016] NZHC 1962.
22 At [45].
23 In my oral decision in Court, I referred to Mr Moyer citing a further case which I said I would include in a footnote however that was not correct. Mr Moyer referred to R v Nigel and R v Nagel but the reference to R v Nigel was meant to be R v Nagel.
was a methamphetamine deal turned sour. That aggravates it. Your choice to be involved in antisocial behaviour was the context for the offending. I also consider your conduct after the attack to be worse than that in Nagel and in many of the other cases where the offenders fled the scene after the attack. You fled the scene, but you also left the victim where he could not be found. I acknowledge that in Whaanga the offender was prevented from leaving the scene. In Williams the offender returned to check upon the victim.
[27] You remained at the scene for seven minutes and carried Mr Selwyn to his room. In that time, you would have seen the seriousness of the injuries Mr Selwyn sustained as a result of your attack and yet you did not act. You and your associates all had cell phones and none of you called for help. You also removed Mr Selwyn from where he might have been found and helped.
[28] Accordingly, I consider that a starting point of five years and six months’ imprisonment is appropriate.
Uplift for remaining charges
[29] There must be an uplift to reflect the serious methamphetamine dealing charge. The Crown submits that an uplift of four years’ imprisonment is justified for your possession of methamphetamine for supply and possession of ammunition. Mr Moyer submits that an uplift of three years and three months’ imprisonment is appropriate.
[30] It is accepted by both the Crown and your counsel that, on the basis of quantum, your methamphetamine offending falls within band three of Zhang v R.24 Band three applies to amounts of methamphetamine between 250 and 500 grams and attracts a starting point of six to 12 years.25 I need to determine your role in relation to the methamphetamine offending. There is little information before me to assist with that determination. However, the methamphetamine was located with $16,890 cash and a cutting agent. Mr Moyer submits in his written submissions that drug addiction played a role in your offending citing a positive drug test for cocaine. That positive test
24 Zhang v R [2019] NZCA 507, [2019] 3 NZLRA 648.
25 At [125].
occurred while you were on electronically monitored (EM) bail. However, the cash located indicates a level of commerciality. Your pre-sentence report (PAC report) records that you were selling methamphetamine to financially support your family. You told the report writer that you were using and dealing methamphetamine. You did not test positive for use of methamphetamine, but I accept that you were a user of methamphetamine. It is clear though that the amount of methamphetamine coupled with the cash makes this highly commercial.
[31] You also had 30 rounds of ammunition. Ammunition in combination with drug dealing is always of concern to the Courts.
[32] I accept, with reference to the provided case law, that if your offending was a standalone sentence, it would attract a starting point of or near nine years’ imprisonment.26 That is for the methamphetamine alone. There is also the matter of the charge of possession of ammunition but in the context of this offending that is far more minor.
[33] I am mindful that s 85 of the Sentencing Act 2002 applies and that I must consider the totality of your offending. It is not appropriate to simply stack sentences on top of each other. I consider that an uplift of three years and six months’ imprisonment is appropriate to reflect both the methamphetamine and ammunition charges.
[34]This results in a global starting point of nine years’ imprisonment.
Personal mitigating factors
[35] I turn now to the reduction for your guilty plea. Your guilty plea has saved Mr Selwyn’s whānau the trauma of a trial and I know the trauma that trials cause to the families of victims. Mr Moyer submits that a reduction of 20 per cent is warranted. The Crown emphasises that the offending was captured on CCTV. The Crown says that the strength of the case means that the reduction should be tempered.
26 Cullen v R [2022] NZCA 308; R v Chanthawong [2022] NZHC 1623; Williams v R [2023] NZCA 156; and Duthie v R [2023] NZCA 312.
[36] There is also the fact of the timing of the guilty plea. You pleaded guilty in April 2024 just over one year after your first appearance. Your trial was set to take place in September 2024. A resolution proposal was offered by the Crown four months before you pleaded guilty. You did not accept that proposal. In January 2024, you indicated that you intended to plead guilty to the manslaughter charge, but you requested that the purity of the methamphetamine be tested.
[37] An arraignment hearing was arranged once the methamphetamine was tested, and an agreed summary of facts was settled. I consider that a 15 per cent reduction sufficiently recognises your guilty plea and that you have saved the state the expense of a trial and Mr Selwyn’s whānau the trauma of a trial.
[38] I turn now to consider your other personal mitigating factors. You seek a further global credit of 30 per cent for your remorse, the impact your imprisonment will have on your children, and personal mitigating factors that contributed to your offending as identified in the provided reports. I have been provided with a PAC report and a cultural report.
[39] You have two daughters, a very young infant daughter with your partner and an 11-year-old stepdaughter from a previous relationship. You were not able to be present at the birth of your infant daughter because you were in custody and to that extent your partner has suffered from your offending because she was not able to have you present when she gave birth to your child. Both of your daughters’ mothers have provided written letters to the Court. These letters note the profound impact that your incarceration will have on your children, noting the impact visiting you whilst you have been incarcerated has had on your daughter’s wellbeing. These letters also note your generous and caring nature and the active role that you have played, particularly in co-parenting your eldest daughter.
[40] You are of Samoan descent. You are close with your whānau and largely regard these relationships as now pro-social. Your elder brother, whom you have always looked up to, is one of your co-offenders. You regard yourself as a “follower” in your circle of friends and regard this dynamic as contributing to your offending. I think
your insight in recognising yourself as a follower is probably useful, but it is time to stop following people into these kinds of situations, Mr Fausia.
[41] Prior to your incarceration you were working casually as a hammer hand. You have expressed a desire to be a qualified builder. You are a member of a church. Your father is a pastor, and you regard church as having a significant impact on your life as you are surrounded by positive role models.
[42] Your cultural report details a childhood that is not unfamiliar to many people who appear before the courts. In your early childhood your upbringing was marred by poverty, violence and gang association. That eventually changed but it was a feature of your early upbringing, and you describe being hungry and wanting to have things that other children had but you did not. I consider it unnecessary to detail the circumstances of other matters in the cultural report, but I have taken them into account.
[43] You told the report writer that you take full responsibility for your offending and that you regret your actions. You said that you feel bad about what happened and have indicated a willingness to participate in restorative justice. This was not pursued as your counsel were notified that Mr Selwyn’s family were unlikely to participate. Your family has prepared a Samoan fine mat for Mr Selwyn’s family and your family offers to partake in a Samoan ceremony of apology.
[44] You have handwritten an apology letter to Mr Selwyn’s family. That letter was partially read in Court. In this letter you have reflected on your failure to call 111 noting the difference this could have made to the outcome of your attack. You have also provided a letter to the Court in which you note the shame that you have brought your family and state your commitment to your family and to your rehabilitation. I have read that letter, Mr Fausia.
[45] The Crown makes the point that the matters detailed in the cultural report are uncorroborated. I accept that they are uncorroborated, nevertheless a number of the matters particularly from your childhood before the age of about 12, I accept were factors that lead you into offending in early age, into gang association, drug offending
and violent offending. Had you had a different early childhood, you might have had a better chance of not being here. For that reason, I consider that a moderate discount of 10 per cent is appropriate.
[46] I am also prepared to grant a discreet credit to reflect the difficulty your incarceration will have on your two children and your partner. They are victims of this offending as well and that credit is for them, not for you. I set that credit at five per cent.
[47] I am not prepared to grant a discreet discount for remorse. I think that your failure to seek any assistance for your victim and the fact that he was left either dead or dying makes your expressions of remorse now somewhat hollow. You prioritised your interest in avoiding culpability over the victim’s life. It is also hollow given that you were on bail for violent offending at the time. It is further hollow because, while on EM bail for this offending, you obtained a leave of absence from your address under a false pretence with the intention of supporting others associated with the Head Hunters gang at a planned altercation. That altercation, although you were not present at that time, also resulted in a person dying. While on bail you also tested positive for cocaine use. All of this is relevant to my assessment of your actual level of remorse.
[48] Your family offers to make amends so far as they can but a discount for remorse centres on you and your remorse. In all of the circumstances of this offending and the Court process that followed, I just don’t see genuine remorse of the sort that justifies a discount. I am sure that you are sorry standing in Court today, but that is really just a product of the situation you now find yourself in. As you acknowledge in your letter to the Court, it is actions not words that are needed. I consider that if your situation attracts a discount for remorse, then such a discount would effectively be automatic for anyone who writes a letter of remorse close to sentencing. In that situation only those who demonstrated a lack of remorse would fail to be given credit for remorse. I consider that rather than treating remorse as a mitigating factor, lack of remorse would effectively be an aggravating factor. That is not the way remorse is treated under s 9(2) of the Sentencing Act.
[49] This brings the overall credit including guilty plea, the effect of incarceration on your family, and your personal mitigating factors to 30 per cent. From the starting point of nine years this would lead to a sentence of six years’ imprisonment had the offending not been committed on bail and on supervision. I must consider that as a personal aggravating factor.
Personal aggravating factors
[50] As I have said you were on bail on District Court charges at the time you killed Mr Selwyn. The District Court charges were for similar violence offending that left your victim unconscious. You are still to be sentenced for that offending.
[51] Offending whilst on bail is serious but offending of a similar type and which is an escalation of offending while on bail, requires a stern response. The Crown seeks an uplift of 12 months; and I agree that level of uplift is justified in the particular circumstances of this offending on bail. Not only was it a blatant disregard of your conditions of bail because you chose to go to that motel knowing violence was likely, but it also suggests that you had no real remorse for what you had done on the earlier occasion. You were prepared to repeat the behaviour. In addition, you were involved in drug offending while on bail and you had ammunition while on bail. You were also on supervision for earlier methamphetamine offending. The supervision sentence was imposed on 9 November 2022.
[52] For those reasons, I uplift the sentence of six years by 12 months to seven years’ imprisonment.
Result
[53] On the charge of manslaughter, you are sentenced to seven years’ imprisonment.
[54] On the charge of possession of methamphetamine for supply you are sentenced to a concurrent sentence of six years’ imprisonment. That means you serve it at the same time.
[55] On the charge of possession of ammunition, you are sentenced to six months’ imprisonment, also to be served concurrently.
[56] I make an order for the destruction of the drug items and for the destruction of the ammunition. I also make an order forfeiting the sum of $16,890 in cash located at your home pursuant to s 32 of the Misuse of Drugs Act 1975.
[57]Stand down.
Wilkinson-Smith J
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