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.

[8]    Following subsequent assaults inflicted by others, Liufau was rendered unconscious. He was taken to hospital and required surgery to relieve pressure on his brain. Tragically he died nine days later. As I have noted, the Crown has said the Crown does not allege that you are responsible for Liufau’s death. But it is likely he received similar injuries from your assault similar to those that was suffered by Ika.

Personal circumstances

[9]    As to your personal circumstances, Mr Folau, you are 29 years old. You were born in Tonga and came to New Zealand in 2013 for tertiary study. You apparently completed a course in information technology. With your partner, you have a young son. You have two previous convictions for careless operating a motor vehicle and disorderly behaviour. Those convictions are not relevant for the purposes of sentencing today.

Approach to sentencing

[10]   My first step in deciding your sentence is to fix a “starting point”. This will be based on the seriousness of the offending to which you have pleaded guilty.2 Then I will consider whether the sentence should go up or down depending on your personal circumstances. That will produce the end sentence. If that end sentence is a short- term of imprisonment for less than two years, I will also consider whether home detention is available.

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

Starting point

Submissions

[11]   Ms Paterson, on behalf of the Crown, submits that, taking account of Court of Appeal guidance and comparable cases, the starting point for your offending is in the range of 16 to 18 months’ imprisonment and on your behalf Mr Meyer agrees.

Analysis

[12]   There is no Court of Appeal guideline judgment for the offence of assault with intent to injure, but a series of cases provide guidance on arriving at a starting point. I will begin by identifying the aggravating features of your offending using the categories set out by the Court of Appeal in a case called R v Taueki.3 First, there is the extent of the violence that was used. You struck each complainant three times, and on five of these six occasions you used a closed fist. Secondly, much of your violence was directed to the complainants’ heads and thirdly, you acted in concert. You were one of a group of four men who attacked the two complainants.

[13]   Ms Paterson submits that the complainants were vulnerable because they were defenceless or unable to escape. While the complainants were certainly outnumbered and Ika, in particular, had limited options available to him due to the manner in which you advanced on him, there is nothing to suggest the complainants were particularly vulnerable, at least in the sense described in Taueki. The presence of more than one attacker is properly dealt with as a separate aggravating feature of the offending, as I have noted.

[14]   In my assessment the level of violence you used was low to moderate in seriousness when compared to other cases that have come before the Courts. However, the fact that you attacked the complainants’ heads is an important aggravating feature in this case, as is the presence of multiple attackers outnumbering the complainants two to one. As to injuries as I have said, Ika suffered the type of injuries which are to be anticipated from your violence and it is likely that Liufau did too.

3      R v Taueki [2005] 3 NZLR 372 (CA) at [31].

[15]   Taking account of both the number of aggravating factors and the seriousness of each factor, I have come to the view that your offending is at the upper end of band 2. That is a reference to the categories of offending involving assaults that were described by the Court of Appeal for sentencing purposes in a case called Nuku v R4, and another called Tamihana v R.5

[16]   Ms Paterson and Mr Meyer have both identified other cases of similar offending to assist in assessing a starting point, and to ensure consistency in sentencing.6 I have considered those cases carefully. Standing back and looking at matters as a whole, I have reached the view that a starting point of 18 months’ imprisonment is appropriate.

Personal factors

[17]   I turn then to consider your personal circumstances. There are no personal aggravating features in this case. Your previous convictions are relatively minor and in any event as I have said, they are not relevant to sentencing on these charges.

[18]   The pre-sentence report identifies the role of alcohol in what happened that night. You told the report writer that you did not recall the offending and you were shocked when you read the summary of facts describing what you had done. The report notes you haven’t consumed alcohol since the offending. It also notes the counselling you have undertaken through the Tupu service, which is a specialist provider of counselling services to help people from Pasifika communities with alcohol, drug and gambling problems. I have seen a certificate confirming that you have completed that course of counselling to address your problems with alcohol.  Mr Meyer also confirms that you wish to participate in other courses to help address your alcohol and anger management issues, and I have seen your correspondence that is consistent with that, and I would encourage it.

4      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

5      Tamihana v R [2015] NZCA 169.

6      Harris v R [2017] NZHC 1404; Mori v Police [2013] NZHC 225; Kojeunikov v Police [2013] NZHC 551; Tiplady-Koroheke v R [2012] NZCA 477.

[19]   Mr Meyer has also filed a letter that you have written to the Court expressing your remorse for this offending. You have told me that you take full responsibility for your offending and that you acknowledge quite rightly, that assault is a serious crime. You have told me that you regret your involvement in what happened on 16 May 2021 and that you understand the harm your actions have caused. You write of the shame you feel and the shame you have brought on your family and your partner’s family.

[20]   There are several other matters addressed in your letter but I particularly want to mention that you have acknowledged your alcohol abuse as the primary cause of your offending and you have told me that you are actively seeking treatment for that. Your words of regret are supported by concrete steps towards rehabilitation and I accept that your remorse is genuine. Those are mitigating factors for which a discount is justified. I consider a reduction of five percent from the starting point is appropriate to reflect both your remorse and the steps you have taken towards rehabilitation.

[21]   Mr Meyer has also filed a cultural report prepared by David Lui. The report contrasts your strict family and church life in Tonga, where your parents currently live, with your life in New Zealand, which has focused on work, friends and social events. You told Mr Lui that you had struggled to adapt to a culture of normalised alcohol consumption in New Zealand.

[22]   Mr Lui acknowledges the risky and harmful nature of your alcohol consumption. He says that when Pacifica people from families and communities that abstain from alcohol when move to New Zealand they can struggle with moderation given the different cultural norms around alcohol consumption. Mr Lui suggests this goes some way towards explaining your conduct on the night of the offending.

[23]   Mr Meyer does not seek a specific discount for cultural factors and I do not think that one is available. The report does not disclose serious social disadvantage or deprivation. There is nothing in the report to suggest that violence was a feature of your upbringing. As I have noted, much of the focus of the report concerns the difficulties you have had in dealing with alcohol while you have lived in New Zealand. However, under s 9(3) of the Sentencing Act I cannot take into account the

consumption of alcohol as a mitigating factor. Put simply, being drunk is not an excuse.

[24]   Finally, you have pleaded guilty at a very early stage. Ms Paterson for the Crown accepts you are entitled to the full discount of 25 per cent and I agree. You have taken responsibility for your actions.

Final sentence

[25]   Taking these discounts into account gives rise to an adjusted sentence of 12.6 months’ imprisonment.

[26]   This adjusted sentence means home detention is an option to be considered by the Court. The pre-sentence report notes that the proposed address is suitable and recommends home detention. No concerns relating to compliance by you have been identified. In light of your limited previous offending and the steps you have already taken towards rehabilitation, your likelihood of re-offending has been assessed low. In all these circumstances, I consider that home detention is an appropriate sentence which best provides for your rehabilitation. The sentence will be six months’ home detention.

[27]   Mr Meyer has pressed on your behalf for a sentence of community detention and intensive supervision. Given the nature of your offending, particularly that you were part of a group who attacked two complainants and your attack was primarily to their heads, I do not consider such a sentence would adequately denounce your offending or deter you and others from engaging in similar offending. In my view, home detention is the least restrictive sentence available in this case.

Result

[28]Mr Folau, please stand.

[29]   On each of the two charges of assault with intent to injure, you are sentenced to six months’ home detention, those sentences to be served concurrently.

[30]   In addition to home detention, the special conditions attached to the pre- sentence report dated 14 July 2021 will apply.

[31]Mr Folau, please stand down.

Robinson J