R v Fepuleai - [2013] NZHC 2204

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-000074 [2013] NZHC 2204

THE QUEEN

v

PERCY SALEGA FEPULEAI

Hearing: 28 August 2013

Appearances: T M Robertson for Crown
L L Hughes for Prisoner

Judgment: 28 August 2013

JUDGMENT OF COURTNEY J

R v FEPULEAI [2013] NZHC 2204 [28 August 2013]

[1] Percy Salega Fepuleai, you appear for sentence today on a charge of manslaughter. The charge arises from the unintentional shooting of your cousin, Alex Ulu, on 2 January 2013, a tragic and senseless incident that has brought enormous grief to both families. Before I go further in my sentencing I acknowledge Mr and Mrs Ulu, who have come here today from Australia. I thank you for coming today Mr and Mrs Ulu, and I particularly thank you for what Ms Robertson has told me; that your feelings about this are changing. Mr Ulu, when you wrote a letter a little while ago it spoke very much of the anger and anguish that you and your family felt. But now you are moving closer to forgiveness and that is a credit to you and your family.

[2] If I turn to the circumstances of the offending. On the evening of 2 January

2013 you had been at home with other family members drinking alcohol. At about

10 o’clock in the evening a friend of yours visited and brought with him a shortened

.22 calibre rifle. You and he examined the rifle. Your friend, Mr Heron, took out the magazine clip before he gave it to you. You pointed it at your own reflection in the ranchslider and pretended to fire, knowing that this was safe because your friend had removed the ammunition. Later you gave the firearm back to Mr Heron and went inside to talk to your partner. While you were gone Mr Heron replaced the magazine clip containing three or four bullets back into the firearm. He did not mention that he had done this when you returned.

[3] Soon afterwards, Mr Ulu arrived home with a friend. You asked for the firearm back so that you could scare your cousin. Mr Heron said words like “no it’s not a toy” but you insisted. You just wanted to scare Mr Ulu as a joke. Mr Heron gave you back the firearm. Despite his warning, he did not make it clear to you that he had reloaded the rifle. As Mr Ulu came onto the property you told him to put his hands up. Mr Ulu’s friend ignored you and continued to walk on. You you’re your cousin again to put his hands up and pointed the firearm at his chest. Mr Ulu raised his hands in what is agreed was a pretend surrender gesture and you pulled the trigger. Mr Ulu survived for two more weeks but ultimately died of his injuries.

[4] You and Mr Ulu and your respective families were very close. You were like brothers to one another. Mr Ulu was living with your…

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 Fepuleai

Details

AGLC: R v Fepuleai [2013] NZHC 2204
Case: [2013] NZHC 2204
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Percy Salega Fepuleai, appeared for sentencing on a charge of manslaughter. The charge arose from the unintentional shooting of his cousin, Alex Ulu, on 2 January 2013, which resulted in the latter's death two weeks later. The court acknowledged the profound grief experienced by both families involved. The central issue for the court was to determine an appropriate sentence for the defendant, considering the unique circumstances of the offence and the defendant's personal background. The court also needed to assess the degree of culpability, the nature of the offence, and the defendant's prospects for rehabilitation.

The court commenced by examining the circumstances of the offence. On the evening in question, the defendant had been drinking with family members when a friend brought a shortened.22 calibre rifle. The defendant and his friend initially handled the rifle, with the latter removing the magazine clip. Later, the friend reloaded the rifle without informing the defendant. When the victim arrived at the defendant's home, the defendant retrieved the rifle intending to use it as a prank. Despite warnings, he pointed the rifle at his cousin, pulling the trigger, which resulted in the fatal shooting. The court recognised the close relationship between the defendant and the victim, highlighting the devastating impact on both families.

The court balanced the recklessness of the defendant's actions against the mitigating factors, such as his genuine remorse and the innocent intent behind the prank. The court determined that a starting point of four-and-a-half years' imprisonment was appropriate, considering the recklessness involved. However, the court reduced this sentence by 30% due to the defendant's guilty plea and genuine remorse, resulting in a final sentence of three years and two months. The court also issued a first strike warning, explaining the severe consequences of any future serious violence convictions under the three strikes law.

The court ordered Percy Salega Fepuleai to serve three years and two months in imprisonment, reflecting the gravity of the offence while considering the mitigating factors and the need for deterrence and rehabilitation.

Orders