R v Fualau
[2022] NZHC 3252
•6 December 2022
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 and put the machete down on a table. You left the property and walked to a neighbour’s address, arriving just after midnight. You knocked on the door of the address and told the neighbour that the man next door had died and that they should call the police.
[8] When the emergency services arrived, they found Mr Paniani still conscious on the floor. He was taken to hospital, where he later died. The post-mortem examination revealed that Mr Paniani had suffered numerous lacerations or cuts to his left hand, wrist and forearm. These included cuts to multiple tendons. He also suffered numerous lacerations or cuts to his right hand and wrist, including damage to his radial artery and multiple tendons. In addition, Mr Paniani was found to have 19 lacerations to the head and face. The injuries to his head included numerous skull fractures, fractured teeth and broken dentures. The pathologist found that these lacerations were consistent with “chop” injuries.
[9] In total, Mr Paniani had suffered no fewer than 35 separate sharp force injuries to the head, face and upper limbs. The pathologist concluded he had died from the combined effect of these. They had caused bleeding that in turn resulted in low blood pressure and caused Mr Paniani to go into shock. This left him vulnerable to cardiac arrest and injury to the brain.
[10] When the police questioned you about the incident you acknowledged you had struck the blows that led to Mr Paniani’s death. You said he had kept on swearing at you and saying words you were not happy with. You said you had retaliated by beating him up because you “couldn’t take it”.
Minimum term of imprisonment
[11] There is no dispute that I am required to sentence you to life imprisonment The Crown also contends, however, that your offending engages s 104 of the Sentencing Act 2002. This requires the Court to impose a minimum term of at least 17 years imprisonment unless that would be manifestly unjust. The section will only be engaged when one or more of the circumstances listed in s 104(1) exists. These include cases in which the victim was particularly vulnerable (s 104(1)(g)) and where the murder was committed with a high level of brutality, cruelty or callousness (s 104(1)(e)). The Crown contends your offending engages both of these factors.
[12] Your counsel accepts that s 104(1)(e) is engaged because of the brutal and callous manner in which you caused Mr Paniani’s death. However, he disputes the Crown’s assertion that Mr Paniani was particularly vulnerable.
[13] Mr Paniani was clearly vulnerable to a certain degree because he was 69 years of age whilst you were 58 years of the age at the time of the offending. He also suffered a degree of physical infirmity because of the injuries he received in 2016. However, I do not consider this degree of vulnerability is sufficient without more to engage s 104(1)(e). It may be taken into account, however, in an overall assessment of your culpability or blameworthiness. I therefore proceed on the basis that s 104 is engaged because of the brutality, cruelty and callousness in the way in which you committed this murder.
[14] In a case where s 104 is engaged, the Court is required to undertake a two-step process. In the first the Court looks to comparable cases to ascertain what the minimum term of imprisonment would be but for the application of s 104. At the second stage of the process the Court must consider whether it would be manifestly unjust to require the offender to serve a minimum term of 17 years imprisonment before being eligible to apply for parole.
[15] Your offending involves several aggravating features. First it involved multiple blows to the head of the victim using a sharp weapon. Secondly, Mr Paniani was vulnerable to a certain degree because he was intoxicated and would not in any
event have had the strength to resist your attack. Thirdly, as is inherent in the charge of murder, it caused very serious injury that led to his death.
[16] Today I have heard victim impact statements read to the Court by three members of Mr Paniani’s family. They were two of his daughters and a granddaughter. The victim impact statements were thoughtful, meaningful and measured. However, they also demonstrated without doubt the devastating effect your offending has had on this family. It will be many years before they will be able to recover from the death of their loved one, if ever. You and you alone are to blame for that.
[17] Counsel have referred me to several cases where s 104 has been considered.1 I consider the most relevant for present purposes to be a case called Vea v R.2 As in the present, the offender in that case caused the victim’s death by multiple blows to the head using a machete. The sentencing Judge adopted a starting point of 17 and a half years imprisonment. This reflected not only the high level of brutality and callousness involved in the killing but also the fact that the offender had unlawfully entered the victim’s house and waited for him to return before immediately attacking him with the machete. I consider the level of premeditation in Vea means the culpability of the offending in that case was greater than in your case. I would therefore adopt a starting point of 16 years as a minimum term.
[18] In some cases the culpability of offending may be reduced if it has been caused by provocative conduct on the part of the victim. There is no doubt that Mr Paniani caused you to become angry when he threatened to contact your probation officer and have you removed from his address. However, I do not consider this is sufficient to reduce your overall culpability. The extreme level of your response to his threats was wholly out of proportion to his conduct.
[19] I am also satisfied that the minimum term should be increased to reflect the fact that the present offending occurred shortly after you were released from prison after serving a sentence for violent offending. That offending occurred after you
1 Werahiko v R [2015] NZCA 194; R v Werahiko [2013] NZHC 3413; R v Cole [2017] NZHC 517; R v Maheno [2013] NZHC 2430; R v Ram [2015] NZHC 2813; R v Lavemai [2014] NZHC 797; and R v Turner [2016] NZCA 381.
2 Vea v R [2020] NZCA 68.
became enraged by the fact that your then partner kept waking you up in the middle of the night to talk to you. You got out of bed, picked up a plank of wood that was lying nearby and struck numerous blows to your partner’s head. These were inflicted with sufficient force to break the plank of wood. You then struck your partner on several more occasions with one of the broken pieces of wood.
[20] This offending was obviously different in nature to the present offending because it did not result from the consumption of alcohol. However, it is another demonstration of the fact that your anger can be easily aroused and can manifest in extreme behaviour.
[21] The present offending also occurred whilst you were subject to parole conditions. One of those conditions, as I have already observed, prohibited you from consuming alcohol. There can be little doubt that the consumption of alcohol in breach of your parole conditions contributed to your decision to attack Mr Paniani in the way that you did.
[22] I would apply an uplift of six months to reflect these factors. This means the minimum term is increased to 16 years six months.
[23] In addition to the pre-sentence report I have now received a helpful report tendered under s 27 of the Sentencing Act 2002. This describes your family upbringing and cultural background in considerable detail. It also confirms many of the issues identified in a psychiatric report prepared in July 2018 when you were sentenced on the charge of wounding your partner with intent to cause her grievous bodily harm. The psychiatric report notes that you do not suffer from any mental health issues but that you had been taught by your brothers from an early age to use aggression to exert your will. The report also noted that your capacity to inhibit aggression is poor when you consume alcohol.
[24] I also record that I have refused your applications for an adjournment of sentencing so you could obtain a further health assessor’s report. I saw no benefit in deferring sentencing for this purpose given the level of detail contained in the earlier
psychiatric report and the fact that you have been in prison for virtually the whole of the period since it was prepared.
[25] The s 27 report records that you were born and raised in Samoa as the second youngest in a family of 11 children. Your parents and relatives worked on the family plantation and your father was the highest chief in the village. You were initially bullied at school. One of your brothers taught you to respond to these incidents using violence. Over time you became proficient at inflicting violence on others, and you were not afraid to do so. This led to issues at school where you began to associate with persons who engaged in anti-social activities. You were ultimately expelled from school at 17 years of age and began working on the family plantation.
[26] After approximately five years engaged in this activity your family sent you to New Zealand in the hope that a new environment would be of benefit to you. Unfortunately, however, your drinking and violent behaviour became worse when you came to New Zealand. You then moved to Australia for a few months in 1989 before returning to Samoa, where you remained for 14 years.
[27] You returned to New Zealand in 2005 and approximately ten years later you began your brief relationship with the victim of your previous offending. You say you have reflected on the incident involving your former partner and have realised that the manner in which you reacted to her waking you up during the night was extreme.
[28] It is evident from the reports that you resort to violence quickly when angered and this has led to the two convictions for offending involving violence that you have now sustained. Other than a charge of wilful damage in 2009, you have no other criminal history. However, you report a reasonably lengthy history of becoming involved in violent confrontations, often with close associates, once you have been drinking alcohol. You told the writer of the s 27 report that you drink to get drunk and that this was the sole purpose of drinking. Unless you curb the way in which you consume alcohol in the future it is virtually inevitable that further convictions for offending involving violence will follow.
[29] Fortunately, you have strong support from your siblings and niece. Your niece says you are a good person but that when you drink, alcohol gets the better of you. I acknowledge that you accept responsibility for your offending and recognise its seriousness. You are also remorseful, although it is not apparent to me that you presently have significant insight into the extent to which the consumption of alcohol drives your offending.
[30] The only mitigating factor that justifies a discount from the minimum term is the fact that you have entered a guilty plea to the charge of murder. This constitutes not only an acceptance of responsibility for the offending, but it has also saved Mr Paniani’s family the trauma of re-living the circumstances surrounding his death in the context of a criminal trial.
[31] Discounts for guilty pleas in this context differ from those applied in sentencing generally. Discounts of no more than one to two years are generally applied in the case of minimum terms of imprisonment.3 I propose to apply a discount of 18 months to reflect your guilty plea. This also takes into account the fact that you acknowledged your responsibility for Mr Paniani’s death from the outset and pleaded guilty at a relatively early stage. This means a minimum term of 15 years imprisonment would ordinarily be imposed but for the application of s 104.
[32] I am now required to stand back and determine whether it would be manifestly unjust to impose a sentence of 17 years imprisonment in circumstances where you would normally receive a minimum term of 15 years imprisonment. I have concluded that it would be manifestly unjust because a minimum term of 17 years imprisonment would not place any value on your early admissions of responsibility and guilty plea. This was the same resulted reached by the Court of Appeal in Vea.4 The Crown also accepts that this may be an appropriate outcome.
3 Vea v R, above n 2, at [21].
4 At [21].
Sentence
[33] Mr Fualau, on the charge of murder you are sentenced to life imprisonment. You are ordered to serve a minimum term of 15 years imprisonment before being eligible to apply for parole.
[34]Stand down.
Lang J
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