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 family at the time of this

incident.   It is evident that this tragedy has devastated a close-knit family.   The circumstances of Mr Ulu’s death have caused immeasurable grief within Mr Ulu’s immediate family.  In a letter written for the purposes of sentencing his father speaks of the terrible loss he and his family feel, not only for Alex himself who was much loved by his family and his community, but   also for the fact there will never be grandchildren.   It is evident from other letters that I have received that Mr Ulu’s death also brought feelings of guilt and grief to your own family and to you.

[5]      The purpose of sentencing in a case like this is to hold you accountable for the harm that you have done and to deter this sort of action.  The circumstances in which people die from unintentional shootings vary greatly.  As a result, there is no firm guidance as to what an appropriate starting point is for sentencing.  I have been assisted by some of the cases that counsel have referred me to. The most comparable of these took a starting point of five years’ imprisonment, but for reasons that I come to in a moment the culpability of the offender in that case was, in my view, higher

than your culpability.[1]

[1] R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.

[6]      The kind of senseless act that you were guilty of has tragic consequences for all concerned and the courts seek to send a strong message to those who would handle firearms that they are not toys.   Handling weapons when the state of the weapon is not known for sure is reckless.  One should never assume, as you did, that a weapon will be safe.   Further, you had been drinking and I am sure that this contributed to your recklessness.  You used the firearm in the face of your friend’s warning.

[7]      On the other hand, whilst you did not know for sure that the gun was not loaded, you had reasonable grounds to think that this was the case.  In hindsight, it is inexplicable that Mr Heron did not tell you he had loaded the gun again.   Your purpose was innocent, to play a prank and it went terribly wrong.   In these circumstances, I consider that an appropriate starting point is four-and-a-half years’

imprisonment.

[8]      I turn now to talk about the other factors that I need to take into account before I fix an end sentence.  You were 29 years old at the time of the offending. Although you do have some previous convictions they do not justify any uplift and I do not take account of them.   In particular, you have never served a term of imprisonment before.  You are in full-time work, or were before this charge was laid, and you have a partner and three young children of whom you are clearly very fond and attached to and take your responsibilities as a father and husband seriously. Members of  your extended family and community have given references which speak of your kindness and your support to others. You are known as a generous and helpful person and close to your family.

[9]      You have a harmful pattern of alcohol use which undoubtedly contributed to this offending.   For this reason and because of your previous convictions you are assessed at having a moderate risk of re-offending.  But your counsel tells me that you are very willing to address the alcohol issue, and I am sure that once you do that you will not pose a risk to the community.  I believe that you have learned a dreadful lesson from this incident.

[10]     You made it clear at a very early stage that you wanted to take responsibility for your actions which you have done through your guilty plea.  I accept, too, that there is genuine remorse.  Your counsel has given me a letter from you in which you speak very plainly about your deep remorse for what has happened and the loss that you personally feel and the distress you feel at the loss you have caused to Mr Ulu’s family.  I therefore reduce the starting point by 25 per cent to allow for the guilty plea and a further five per cent to allow for what is very genuine and obvious remorse on your part. The end sentence is therefore three years and five months.

[11]     Before I finish I am required to give you a first strike warning, as it is called these days, because of the nature of this conviction. You are now subject to the three strikes law and the warning I have given you is about the consequences if there is another serious violence conviction.   You will be given a written notice of this warning as well.   If you are convicted of any serious violent offences other than murder committed after this warning and a term of imprisonment is imposed on you, you must serve that term without parole or early release.   If you are convicted of

murder  committed  after  this   warning  then   you   must   be   sentenced   to   life imprisonment which will be served without parole unless it would be manifestly unjust to do so.  And if that is the case, the Judge must impose a minimum term of imprisonment.

[12]     Mr Fepuleai, I sincerely hope that you and your wider family, and Mr Ulu’s

family in particular, are able to find peace and forgiveness.  Stand down.

P Courtney J

Addendum

[13]     Following  the  sentencing  hearing  I  have  realised  that  I  inadvertently expressed the end sentence as three years five months.  However, the starting point of four-and-a-half years discounted by 30 per cent should have been three years two months.