R v Funaki - [2015] NZHC 1658

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-070-000122 [2015] NZHC 1658

THE QUEEN

v

ULUAKI FUNAKI

Hearing: 16 July 2015

Appearances:

G C Hollister-Jones for Crown
A C Balme for Defendant

Judgment:

16 July 2015

SENTENCING NOTES OF GILBERT J

R v FUNAKI [2015] NZHC 1658 [16 July 2015]

Introduction

[1] Mr Funaki, you appear for sentence having pleaded guilty to six charges arising out of two separate incidents involving three victims:

Victim 1

(a) Sexual violation by unlawful sexual connection – digital penetration. (b) Wounding with intent to injure.

Victim 2

(c) Sexual violation by unlawful sexual connection – connection between

your penis and the victim’s mouth.

(d) Sexual violation by rape.

(e) Sexual violation by unlawful sexual connection – digital penetration.

Victim 3

(f) Assault with a weapon.

[2] The maximum penalty for each of the sexual violation charges is 20 years’ imprisonment. The maximum penalty for wounding with intent to injure is seven years’ imprisonment and the maximum penalty for assault with a weapon is five years’ imprisonment.

The facts

Victim 1- 3 July 2014

[3] Sometime after 2.00 am on 3 July 2014, Victim 1, a 27 year old female, awoke to find you lying on top of her, kissing her. You had an item of clothing wrapped around your head obscuring part of your face. The victim’s partner was working in an outside room at the time. When the victim started to scream, you

pointed a knife at her and told her to be quiet. You then partially removed the singlet and pyjama pants she was wearing and held her legs down to stop her from struggling. You then put your fingers into her vagina. When she continued to struggle, you put the knife down on the bed so you could hold both her legs. However, she kicked out, striking you in the face.

[4] You then retrieved the knife and pressed it against her throat causing the blade to become embedded under the skin at the front of her neck. The handle separated from the blade. You then placed your hands around her throat, choking her and preventing her from screaming while the blade was still embedded in her neck. She then took a trinket box from her bedside cabinet and struck you with it. She managed to break free from your hold and remove the knife blade from her neck. Throughout this struggle, you told her to be quiet, said that you were a gang member and threatened to kill her.

[5] You eventually decided to leave. You took the blade of the knife and the handle and wrapped it in a scarf belonging to the victim. You also used the scarf to wipe surfaces in the room. You told the victim that if she called the police you would kill her. You then ran from the house.

[6] When spoken to by the police, you said that you had been out walking and were hungry. You said that you had…

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 Funaki

Details

AGLC: R v Funaki [2015] NZHC 1658
Case: [2015] NZHC 1658
Decision Date: 16 July 2015

CaseChat Overview and Summary

Uluaiki Funaki was convicted of multiple charges arising from two separate incidents involving three victims. The charges included sexual violation by unlawful sexual connection, rape, wounding with intent to injure, and assault with a weapon. The court considered the severity of the harm caused to the victims and the need for accountability, denunciation, deterrence, and community protection. The starting point for the sentence was determined based on the culpability factors such as premeditation, violence, harm to the victim, and the scale of the offending. The court also took into account the defendant's youth, immaturity, and susceptibility to negative influences, leading to a 20% discount on the starting point. The defendant's guilty plea resulted in a further 25% discount. After applying these adjustments, the court imposed a sentence of 10 years' imprisonment with a minimum term of five years. The court also ordered that the defendant serve a minimum term of imprisonment to protect the community and to allow for treatment to address the risk of re-offending.

Orders