R v Folau - [2021] NZHC 2069

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-004-4422

[2021] NZHC 2069

THE QUEEN

v

OFA HE MOONI FOLAU

Hearing: 10 August 2021

Appearances:

C Paterson for the Crown B Meyer for the Defendant

Sentence:

10 August 2021

SENTENCING NOTES OF ROBINSON J

Solicitors/Counsel:
Meredith Connell, Auckland B Meyer, Barrister, Auckland

Copies to:
Miriam Burrell, NZME Jordon Bond, RNZ
Jason Oxenham, NZ Herald Catrin Owen, Stuff

R v FOLAU [2021] NZHC 2069 [10 August 2021]

Introduction

[1] Mr Folau, you are for sentence having pleaded guilty to two representative charges of assault with intent to injure.1 The offence is subject to a maximum penalty of three years’ imprisonment.

[2] Before I go further, I wish to acknowledge the victims and their families who are here today. I acknowledge in particular Liufau Vake. Although it is not alleged that you, Mr Folau, were in any way responsible for his death, it is important to acknowledge his family and the hurt and suffering that has been caused to them through his death and the circumstances of it.

Facts

[3] Mr Folau, I take the following background facts from the summary of facts that you have accepted.

[4] On the morning of Sunday, 16 May 2021, at 2.51am, you were in Symonds Street in central Auckland. You had just left the Edinburgh Castle bar. You were there with three others. Two brothers, Liufau Vake and Ika Vake, were also in Symonds Street at that time. They are the complainants. Because they share a common surname I will refer to them, with respect, as Liufau and Ika.

[5] There was a fight early that Sunday morning. One of your associates engaged with Liufau and Ika. You became involved shortly after that. You took hold of Ika and swung at his head with an open-handed slap. The slap did not entirely connect, but you struck Ika’s hand instead. Ika attempted to get away from you but you chased him and continued to advance on him as he backed away, goading him to fight. You backed him into the alcove of a shop and he was unable to get away. You struck him in the head with you left hand using a closed fist. You then took hold of him with your left hand, leaving him unable to escape and you struck him a second time in the head with your right hand, again using a closed first.

1 Crimes Act 1961, s 193. Maximum penalty: three years’ imprisonment.

[6] After assaulting Ika you ran towards Liufau who was being held by one of your associates nearby and you struck him three times in the head with a closed fist.

Injuries

[7] The injuries sustained by Ika included concussions, cuts, bruising and abrasions. Although the Statement of Facts that I have seen does not set out who exactly amongst the four of you caused those injuries, but it seems highly likely that you contributed to them.

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 Folau

Details

AGLC: R v Folau [2021] NZHC 2069
Case: [2021] NZHC 2069
Decision Date: 10 August 2021

CaseChat Overview and Summary

In the case of The Queen v Ofa He Mooni Folau, the defendant was sentenced for two charges of assault with intent to injure, each carrying a maximum penalty of three years’ imprisonment. The sentencing hearing took place in the High Court of New Zealand, Auckland Registry, on August 10, 2021. The defendant, Mr Folau, pleaded guilty to the charges, which involved an assault on two complainants, Liufau Vake and Ika Vake, in central Auckland on May 16, 2021. The legal issues before the court included determining an appropriate starting point for the sentence, considering the aggravating and mitigating factors, and deciding on the most suitable sentence for rehabilitation and deterrence.

The court began by establishing a starting point for the sentence based on the seriousness of the offending. The court noted the extent of violence used, the targeting of the victims' heads, and the fact that the defendant acted in concert with others. These factors were considered aggravating features, leading the court to place the offending at the upper end of band 2 in terms of seriousness. After considering comparable cases and submissions from both the Crown and the defence, the court settled on a starting point of 18 months' imprisonment.

The court then assessed the mitigating factors, which included the defendant's genuine remorse, his efforts towards rehabilitation, and his early guilty plea. The court recognised the defendant's struggle with alcohol abuse and his participation in counselling, which led to a five percent reduction from the starting point. Additionally, the court acknowledged the defendant's limited previous offending and the suitability of home detention as a sentence, leading to a further 25 percent discount. This resulted in an adjusted sentence of 12.6 months' imprisonment.

Considering the adjusted sentence and the nature of the offending, the court decided that home detention was the most appropriate sentence for the defendant. The court deemed it the least restrictive option that would adequately provide for the defendant's rehabilitation while also denouncing the offending and deterring similar conduct in the future. Therefore, the court sentenced the defendant to six months' home detention on each charge, to be served concurrently, with special conditions attached as outlined in the pre-sentence report.

The final orders of the court were that the defendant, Ofa He Mooni Folau, be sentenced to six months' home detention on each of the two charges of assault with intent to injure, to be served concurrently, with the special conditions outlined in the pre-sentence report.

Orders