R v Feauai - [2012] NZHC 171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-13230 [2012] NZHC 171

THE QUEEN

v

MASEIGA FEAUAI AND WILLIAM OFISA

Hearing: 16 February 2012

Counsel: N Webby for Crown
L Hughes for Accused Feauai
J Boyack and D Niven for Accused Ofisa

Judgment: 16 February 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:
N Webby, Meredith Connell, Auckland: Nicholas.Webby@meredithconnell.co.nz
L Hughes, Auckland: Lynn.Hughes@pds.govt.nz
J Boyak, Auckland: lawyer@boyack.co.nz
D Niven, Auckland: davidniven@orcon.net.nz

R V FEAUAI AND OFISA HC AK CRI-2010-092-13230 [16 February 2012]

[1] Maseiga Feauai and William Ofisa: you appear for sentence having pleaded guilty to the manslaughter of Michael Ofisa, in that in August 2010, you caused Michael’s death by assaulting him using a motor vehicle as a weapon.

[2] The way in which the charge is quite properly expressed is somewhat misleading as to the tragic circumstances of this case in which the vehicle driven by you, Mr Ofisa, ran over Michael, your older brother, killing him. I accept at once that your purpose was not to cause Michael harm but to assist him and that in that sense his death was a terrible accident. The unlawfulness of the event, however, comes from your intention of driving the motor vehicle at speed, encouraged by you Mr Feauai, towards a group of other people. That amounted in law to an assault by, at the very least, the threatened application of force.

[3] I want to make it clear that in discussing the facts I am using the amended summary handed up at the time of the sentencing indication and not the summaries attached to the pre-sentence reports.

[4] The circumstances were that, after or during a party, Michael was being attacked by around 15 people, some of whom were using weapons such as bottles and fence palings or pieces of wood. The summary of facts satisfies me that the extent of the attack was such that it was inevitable that Michael would suffer serious injury and was at risk of being killed. In attempting to assist Michael to defend himself from these attacks you, Mr Ofisa, then aged only 16, drove a motor vehicle at the crowd of attackers at a speed which you estimated at around 60 kilometres an hour.

[5] You were then aged 24, Mr Feauai. You were a passenger in the car and you admitted later that you had encouraged Mr Ofisa on one occasion to drive the vehicle at the crowd as a way of rescuing Michael. I understand it is said that William did not hear that encouragement, but you have admitted that it was given.

[6] As the car advanced towards the attackers and the place where Michael was being beaten, the crowd dispersed and the car drove over Michael, killing him almost

immediately. The degree of hostility and the violence of the attackers is emphasised by the fact that some of them returned to continue the attack on Michael, notwithstanding that he had been run over.

[7] Both of you…

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 Feauai

Details

AGLC: R v Feauai [2012] NZHC 171
Case: [2012] NZHC 171
Decision Date: 16 February 2012

CaseChat Overview and Summary

Maseiga Feauai and William Ofisa appeared before the High Court of New Zealand in Auckland, following their guilty pleas for the manslaughter of Michael Ofisa. The incident occurred in August 2010, when Ofisa, driving a vehicle at high speed, ran over and killed his brother Michael, who was being attacked by a large group. Feauai, a passenger in the vehicle, had encouraged Ofisa to drive at the attackers. The court had to determine an appropriate sentence considering the exceptional circumstances, the use of a vehicle as a weapon, and the mitigating factors such as the violent attack on Michael and the age of the offenders.

The legal issues involved assessing the seriousness of the offending, the use of a vehicle as a weapon, and the mitigating factors including the attackers' aggression, the defendants' remorse, and Ofisa's young age at the time of the offence. The court had to balance these factors to arrive at a just sentence.

The court decided that a term of imprisonment between 5 to 6 years would be appropriate for an adult offender after a defended trial. Considering the mitigating factors, the court set a starting point of three years for Ofisa, reducing it to 18 months after accounting for his remorse, plea, and youth. Ofisa was sentenced to eight months of home detention with special conditions. Feauai, who encouraged the use of the vehicle, was sentenced to two years, reduced to 15 months considering his remorse and plea, but he was released immediately due to the time already served.

The final orders included that Ofisa serve eight months of home detention with conditions such as psychological assessment and judicial monitoring. Feauai was to be released immediately, and both defendants were encouraged to apply for remission of fines and enforcement costs under the Summary Proceedings Act.

Orders