R v Fualau - [2022] NZHC 3252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-8133

[2022] NZHC 3252

THE KING

v

TUTUFIA FUALAU

Hearing: 6 December 2022

Appearances:

C Howard for Crown M Kan for Defendant

Sentence:

6 December 2022

SENTENCING REMARKS OF LANG J

Solicitors:
Kayes Fletcher Walker, Manukau

R v FUALAU [2022] NZHC 3252 [6 December 2022]

[1] Mr Fualau, you appear for sentence today having pleaded guilty to a charge of murder. As you are aware, this charge carries a sentence of life imprisonment. The issue I must decide today is the minimum term you should be required to serve in prison before you can apply for parole.

The offending

[2] Your offending is described in an agreed summary of facts. This records that you were released from prison on 30 September 2021 after serving a sentence of three years, ten months and 14 days imprisonment imposed on a charge of wounding with intent to cause grievous bodily harm. That sentence was imposed in the Manukau District Court on 20 August 2018.

[3] After you were released from prison the victim, Mr Lealofi Paniani, offered to have you come and live with him. This was despite concerns for his safety that were expressed at the time by members of his family.

[4] Mr Paniani suffered from a physical disability caused by a serious car accident in 2016. This had left him almost unable to walk. It also deprived him of a considerable amount of strength in his arms and hands. He was unable, for example, to lift heavy objects.

[5] On the afternoon of 23 October 2021 you, Mr Paniani and one of his friends were drinking alcohol at Mr Paniani’s address. It appears that for a considerable period the atmosphere was friendly and there were no issues. Mr Paniani’s friend left the address at approximately 8 pm. You and Mr Paniani continued to drink alcohol and the summary of facts records that the mood of the evening changed at this time. Mr Paniani became verbally abusive towards you. This was apparently not an unusual phenomenon because he often became argumentative when he was intoxicated.

[6] Mr Paniani was aware that you were subject to parole conditions that required you to live at an approved address and refrain from drinking alcohol. Knowing these facts, Mr Paniani told you repeatedly that he was going to tell your probation officer you should be removed from his address. These comments made you angry and you walked into the kitchen, where you knew Mr Paniani kept a machete behind the fridge.

You removed the machete from behind the fridge and from its sheath. You then returned to the room where Mr Paniani was drinking alcohol and began striking him in the head with the machete.

[7] Mr Paniani attempted to raise his arms to defend himself, but you used the machete to deliver numerous blows to his head, face, wrists and hands. You eventually ceased the attack…

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 Fualau

Details

AGLC: R v Fualau [2022] NZHC 3252
Case: [2022] NZHC 3252
Decision Date: 6 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Tutufia Fualau, pleaded guilty to a charge of murder. The court was required to determine the minimum term Fualau should serve in prison before he could apply for parole. The Crown argued that the murder was committed with a high level of brutality, cruelty, or callousness and that the victim was particularly vulnerable, engaging section 104 of the Sentencing Act 2002. The court found that the murder was committed in a brutal and callous manner, but the victim's vulnerability was not sufficient to engage section 104(1)(e). The court proceeded on the basis that section 104 was engaged due to the brutality, cruelty, and callousness of the murder. The court undertook a two-step process to determine the minimum term, considering comparable cases and whether it would be manifestly unjust to require Fualau to serve a minimum term of 17 years imprisonment. The court found that Fualau's culpability was less than in comparable cases due to the lack of premeditation and the fact that the murder occurred shortly after Fualau's release from prison. The court also considered Fualau's background, including his history of violent behaviour when consuming alcohol. The court applied a discount of 18 months for Fualau's guilty plea and concluded that it would be manifestly unjust to impose a sentence of 17 years imprisonment. Therefore, Fualau was sentenced to life imprisonment with a minimum term of 15 years imprisonment before being eligible to apply for parole.

Fualau, on the charge of murder, is sentenced to life imprisonment and is ordered to serve a minimum term of 15 years imprisonment before being eligible to apply for parole.

Orders