R v Ovaleni
[2018] NZHC 2034
•10 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-003774
[2018] NZHC 2034
THE QUEEN v
FOLAUFOOU OVALENI
Hearing: 10 August 2018 Appearances:
Y Yelavich and R Gibbs for the Crown
P Tomlinson and K Hamblin for the Defendant
Sentencing:
10 August 2018
SENTENCING REMARKS OF GORDON J
Solicitors: Crown Solicitor, Manukau Counsel: P Tomlinson, Auckland
R v OVALENI [2018] NZHC 2034 [10 August 2018]
Introduction
[1] Mr Ovaleni you appear today for sentence after having been found guilty at trial by a jury of one charge of manslaughter.1 The maximum penalty for manslaughter is life imprisonment.2
[2] I will begin by outlining the facts of your offending. I note that having heard the evidence given at trial, I am not required to adopt the version of facts most favourable to you provided that any finding is not inconsistent with the jury’s verdict.3
Factual background
[3] On the evening of Friday 27 January 2017, you were at a house in Jane Cowie Avenue in Otahuhu where your sister and her partner lived together with the deceased, Aukuso Amosa.
[4] You and others, including Mr Amosa, were in the garage playing pool. The uncontested evidence was that Mr Amosa was intoxicated and was being verbally abusive to a number of those present. The evidence was that Mr Amosa’s behaviour caused the landlord, who lived at the property, to close down the pool game.
[5] You then travelled with your sister, her partner and one other couple to a nightclub. Your sister was the sober driver as you and the others had been drinking alcohol in the garage, and you continued to drink at the nightclub.
[6] Mr Amosa also left the house with two others who had been there playing pool. He consumed more alcohol and was eventually dropped off near his home address. He then walked to a nearby pub before returning home.
[7] After Mr Amosa had returned home, you and your four associates also returned from the nightclub to the Jane Cowie Avenue address.
1 Crimes Act 1961, s 171.
2 Section 177(1).
3 Sentencing Act 2002, s 24.
[8] Upon arrival, your sister was not able to drive the car into the driveway because clothing and other items were strewn across the driveway and on the footpath/roadway area in front of the address. Mr Amosa was standing around the area where the possessions had been strewn. The evidence of the landlord was that the various items belonged to Mr Amosa’s partner, and that it was Mr Amosa who had removed the items from the house and deposited them on the driveway and the roadway area.
[9] The Crown case at trial was that you and your two male associates got out of the car and after some interaction with Mr Amosa, you punched Mr Amosa in the face causing him to fall backwards onto the road, hitting his head on the ground. He was lying face up and motionless on the road.
[10] The Crown case was further that you and your two male associates then picked up Mr Amosa, you taking his feet and the other two taking an arm each. The Crown case was that the three of you then deliberately either threw or dropped Mr Amosa, resulting in his head hitting the ground for a second time.
[11]Mr Amosa died some days later as a result of his head injuries.
[12] You and your two male associates faced one charge of manslaughter. The charge against you, Mr Ovaleni, was on the basis of two acts, the punch and the alleged throw/drop. For your two associates, the charge was on the basis of one act, the alleged throw or drop. The defence in relation to the latter act on behalf of your two associates was that Mr Amosa was accidentally dropped as he was being carried from the road where he had fallen after your punch, to the footpath. For you Mr Ovaleni, it was said that you in fact did not even let go of Mr Amosa’s legs as he was being carried from the road to the footpath.
[13] The jury found your two co-defendants not guilty. Both counsel submit, and I agree, that the jury must therefore have found you guilty on the basis of your act of punching Mr Amosa in the face. At trial, in relation to that act, while you admitted punching Mr Amosa, your defence was self-defence. By its verdict, the jury clearly accepted that the Crown had disproved that defence.
[14] Today, Mr Tomlinson submits on your behalf that there were two possible bases for the jury’s guilty verdict. He says they may have determined that you were not acting in self-defence or that you had used excessive force in defending yourself. Mr Tomlinson submits that either conclusion is possible, but says that a determination as to which one it is will not affect the sentence.
[15] For the Crown, Ms Yelavich submits that it would be open to the Court to conclude, on the basis of the evidence at trial, that you were not acting in self-defence when you punched Mr Amosa in the face.
[16] I have reached a clear view on the evidence that you were not acting in self- defence when you punched Mr Amosa in the face.
[17] On returning to the property after being at the nightclub, you and your associates got out of the car you had been travelling in. You spoke to Mr Amosa about what he was doing with his girlfriend’s property. I accept that when you initially spoke to him you were telling him that he was disrespecting his girlfriend by his actions. I also accept that Mr Amosa was verbally aggressive and that initially you did try to calm him down. However, things escalated from there. Tensions increased between the two of you. Your sister tried to intervene. Her evidence was that you and Mr Amosa got close to each other and she pulled you back, telling you to leave it and that she and her partner would talk to Mr Amosa in the morning when everyone was sober. Your sister’s evidence was that you were angry, but she managed to calm you down.
[18] There was also evidence that your sister’s partner got between you and Mr Amosa to try and calm things down, telling you not to do anything and just leave it to him to bring it up with Mr Amosa.
[19] When you spoke to the police officers, you said it looked like Mr Amosa was going to throw a punch at you. At that point, you walked away. As you were walking away, there was evidence that Mr Amosa pushed you in the back with a plastic laundry basket he was holding. Instead of continuing to walk away, you turned around and without warning forcefully punched Mr Amosa in the face. The force of the punch
was sufficient to knock Mr Amosa off his feet. He immediately fell backwards without attempting to break his fall, with his head hitting the surface of the road. As his head hit the road, the noise was described as a loud bang. Mr Amosa immediately began snoring and it seems he was unconscious from that point.
[20] By its verdict, the jury must have accepted that the linear skull fracture was caused by Mr Amosa’s head hitting the ground. Mr Amosa also had a fracture on the right side of his nose.
[21] The bruising and swelling on your right fist was still evident some 10 or so days later when the photograph was taken by the Police.
Approach to sentencing
[22] Mr Ovaleni, setting a finite sentence generally involves three steps.4 First, I must indicate what starting point offending of this type attracts. I must then adjust that starting point up or down to take into account your personal circumstances. The last step applies when there is a guilty plea, which is not relevant in your case.
[23] In sentencing you, Mr Ovaleni, I must have regard to the purposes and principles of sentencing which are set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I emphasise the importance of holding you accountable for the harm done, promoting in you a sense of responsibility for, and an acknowledgment of, that harm, denouncing the conduct, deterring you and others from committing similar offending, and assisting in your rehabilitation and reintegration. I also note the gravity of the offending, including the degree of culpability, the seriousness of the type of offence, the general desirability of consistency in sentencing, and the effect of the offending on the victims.
Starting point
[24] Ms Yelavich submits that a starting point in the vicinity of four years’ imprisonment is appropriate.
4 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[25] Mr Tomlinson submits that a starting point of between two years and six months and three years’ imprisonment is appropriate.
[26] There is no tariff decision for sentencing in manslaughter cases because of the wide range of circumstances in which the offence can occur.5 Nevertheless, the Court of Appeal has said:6
[17] Many manslaughter cases arise in circumstances where violence has erupted suddenly and spontaneously, often in a public place. It is typically fuelled by the consumption of alcohol and/or drugs, and will generally take the form of random street violence or a fight in a bar. The offending is mostly opportunistic, and there will seldom be premeditation or prior planning. The offender and the victim will often have had little or nothing to do with each other before the incident that has led to the charge. Many of the so-called “single punch” cases to which the Judge was referred have occurred within this type of context, and the culpability of the offender has been assessed accordingly.
[27] By reference to s 9(1) of the Sentencing Act, I identify the relevant aggravating features of your offending:
(a)Actual violence and attacking the head7 – the Court in R v Taueki recognised that even where weapons are not used, “attacks on the head of a victim can have particularly serious consequences”.8 I take care not to double count here for the fact that the victim subsequently died. But I regard it as significant that you punched Mr Amosa in the head. The punch carried a sufficient level of force to knock Mr Amosa backwards to the ground.
(b)The fact that a death resulted9 – unfortunately, Mr Amosa died as a result of the punch. That is the most serious of consequences.
[28] I accept that there was some degree of provocation from Mr Amosa. I do not accept that it was severe provocation as Mr Tomlinson submits. However, the
5 R v Edwards [2005] 2 NZLR 709 (CA) at [14].
6 Kepu v R [2011] NZCA 104.
7 Sentencing Act, s 9(1)(a). See also R v Taueki, above n 4, at [31](e).
8 At [31](e).
9 Section 9(1)(d). See also R v Taueki, above n 4, at [31](c).
provocation that there was is a mitigating feature of the offending.10 I accept that you had good intentions at the beginning. You initially tried to calm Mr Amosa down and told him to stop disrespecting his girlfriend by his actions. However, you chose to confront Mr Amosa. This was not your address. It was not necessary for you to intervene. Tensions then began to escalate and while you were verbally arguing with Mr Amosa, he pushed you in the back and you retaliated by punching him.
[29] As the Court of Appeal acknowledged in Murray v R, a “sentencing range of three to four years imprisonment has often been adopted as a starting point in cases where an offender causes the death of a victim by means of a single punch”.11 But, the Court that the starting point for manslaughter may need to be increased in cases where culpability is higher “as a result of an intention to cause really serious harm to the victim, the nature of the serious violence actually used and the fact that death resulted”.12
[30] As to where I can derive assistance in assessing a starting point, the Court of Appeal in Murray commented, “[g]enerally, sentencing in manslaughter cases has proceeded on the basis of a comparison with other comparable cases”.13
[31] An alternative approach has been to use the Court of Appeal’s guideline judgment in R v Taueki for assistance.14 That case sets guidelines for sentencing in cases where the offender is charged with the offence of causing grievous bodily harm with intent to cause grievous bodily harm.15 The Court of Appeal in R v Jamieson explained the relevance of Taueki:16
[34] The present case, however, involved serious violence where serious injury (if not death) was a foreseeable outcome. We think in cases of this nature the guideline judgment in R v Taueki is of considerable assistance in fixing the penalty for manslaughter. The matters which contribute to the seriousness, or mitigate the seriousness (or not), of grievous bodily harm offending as discussed in [31]-[33] of Taueki are also relevant to the assessment of culpability for manslaughter of the present kind.
10 Section 9(2)(c).
11 Murray v R [2013] NZCA 177 at [21].
12 At [21].
13 At [20].
14 R v Taueki, above n 4.
15 Crimes Act, s 188(1).
16 R v Jamieson [2009] NZCA 555.
[32] In my view, comparable cases will provide the most help in ascertaining a starting point for the offending in this case. In R v Tai, the Court of Appeal separately acknowledged that Taueki might apply where there was serious violence.17 The Court commented that a Taueki analysis was appropriate in that case as “[t]his was a case where the offender had used serious violence with the intention of causing serious harm. This differentiates this case from the ‘single punch’ manslaughter decisions”.18
[33] I do not categorise this case as involving serious violence within Taueki. Although this case involved a forceful punch, I accept that you did not intend to cause really serious harm. I accept that you wanted to stop Mr Amosa doing what he was doing with his girlfriend’s belongings. Having said that, there is no doubt that you were angry with Mr Amosa. You admitted that. You also knew that he was intoxicated. You said that he was drunk and not able to walk properly. You should therefore have appreciated that the kind of forceful punch that you delivered would cause him to fall and suffer serious injury.
[34] I turn now to comparable cases to assess the starting point. I first mention three cases referred to by Ms Yelavich.
Comparable case law
[35] In Murray v R, the defendant was part of a group of four men.19 The victim walked into that group on the street and collided with someone. There was a verbal exchange between members of the group and the victim. Although the defendant pushed the victim away, the victim maintained his verbal abuse of the group. The defendant suddenly punched the victim with considerable force, with his right hand, to the left side of the victim's face. The punch knocked the victim to the ground and he later died. Although others came to the victim’s assistance at the time, the defendant left the scene instantly.
17 R v Tai [2010] NZCA 598 at [11].
18 At [16].
19 Murray v R, above n 11.
[36] The Court of Appeal upheld a starting point of five years’ imprisonment.20 It commented that the sentencing Judge correctly took into account the following factors:21
(a)There was no provocative conduct by the victim towards the defendant;
(b)Although there was a single punch, it was administered with as much force as the defendant could muster;
(c)It was clearly a very powerful blow, which was sufficient to render the victim unconscious before he hit the ground;
(d)It was a blow deliberately aimed at the head and was sufficiently forceful to result in a complete split of the skin between the victim's nose and top lip with a fracture to the underlying bone;
(e)The defendant must have at least intended that the victim would suffer serious injury to his face; and
(f)The defendant ought to have appreciated that if he knocked the victim out, he could suffer injury as a result of his fall. The victim did suffer an injury in that manner and it proved to be fatal.
[37] In R v McFarland, the defendant pleaded guilty to one charge of manslaughter.22 The defendant and the victim were in the same takeaway restaurant following a night out drinking. The victim had attempted to speak to members of the defendant’s group of friends in the restaurant. While waiting outside for a bus, the victim walked out of the restaurant and slapped one of the defendant’s group hard on her buttocks. The defendant responded by punching the victim once in the face with his right hand with significant force. The victim fell backwards and his head struck the ground heavily. The defendant left the scene immediately. The victim later died.
20 At [22].
21 At [22].
22 R v McFarland [2014] NZHC 1106.
[38] Andrews J set a starting point solely by reference to previous case law. After reviewing several cases,23 the Judge found that the Murray case was more serious.24 There was no provocative conduct in Murray.
[39] Andrews J accepted that there was some provocative conduct and adopted a starting point of four years’ imprisonment.25
[40] In R v Larson, the defendant pleaded guilty to a charge of manslaughter.26 After a verbal altercation with the victim at a fast food outlet, the defendant struck the victim without warning to the side of the head. The victim fell, struck his head on the ground and later died.
[41] Chisholm J accepted that the offending was not premeditated, but noted that the victim was “blindsided”.27 The Judge also commented that as the victim was an older man, there might have been an element of vulnerability.28 But the Judge did not accept that provocation was present.29
[42] As to a starting point, the Judge concluded that this case was “in the range of three and a half to four years, but closer to the three and a half years”.30
[43]I mention two additional cases cited by Mr Tomlinson.
[44] In R v Paku, the defendant was convicted of one charge of manslaughter.31 After consuming substantial quantities of alcohol, the defendant and his friends went to a nightclub. There was a verbal argument between the defendant and the victim. Later that night, the defendant confronted the victim. The defendant refused to listen to his girlfriend who told him to leave it. He pushed the victim so hard that the victim fell to the ground, fractured his skull and suffered a tear to his brain. He later died.
23 At [27]-[33].
24 At [34].
25 At [36].
26 R v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011.
27 At [11].
28 At [11].
29 At [17].
30 At [17].
31 R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006.
[45] After reviewing the authorities, Venning J adopted a starting point of three years’ imprisonment.32 The Judge accepted there was a degree of provocation by the victim by his actions.33
[46] In R v Hetaraka, the defendant was convicted of one charge of manslaughter.34 After consuming substantial quantities of alcohol, the victim went for a walk with his partner. They began arguing and engaged in a physical tussle. The defendant, who was in his flat at the time, went onto the balcony and shouted at the victim to stop it. The victim abused the defendant, including racial abuse. The defendant approached the victim, allowing the victim’s partner to escape. The defendant said he thought the victim was going to hit him. So, he punched the victim on the chin or jaw. The victim fell backwards and hit the right side of his head on the pavement, knocking him unconscious. He later died. The punch did not, however, cause any discernible injury or external injury to the victim. Nor did it cause any damage to the defendant’s hand or knuckles. It was a “short jab”.
[47] Ellis J acknowledged that the defendant’s encounter with the victim was “largely motivated by good intentions”.35 She also commented that the defendant had not been drinking, nor did he punch the victim hard or intend to cause him any real harm.36 There was also an element of provocation by the victim. The Judge regarded the defendant’s failure to call an ambulance as a neutral factor given there were clearly others who were attending to that.37
[48]The Judge adopted a starting point of two years’ imprisonment.38
[49] I also note the case of R v Needham.39 There, the defendant pleaded guilty to one charge of manslaughter. The defendant’s associates had become involved in an argument with the victim at a house party. The defendant was inside the house at the time and was intoxicated. After things settled down, the defendant came outside and
32 At [23].
33 At [23].
34 R v Hetaraka [2015] NZHC 2631.
35 At [23].
36 At [24].
37 At [26].
38 At [28].
39 R v Needham HC Wellington CRI-2010-085-5780, 14 December 2010.
reignited the argument. The defendant and the victim taunted each other. After the victim took a swing, the defendant hit him hard enough with a straight right jab to the mouth and then a left hook that was hard enough to knock three of the victim’s teeth clean out. The victim was knocked unconscious. Although the defendant attempted to help the victim at that point, the victim later died in hospital.
[50] Williams J adopted a starting point of three years and six months’ imprisonment.40 The Judge assessed the case effectively as a one punch manslaughter case, noting that there was a degree of provocation present.41 He also noted the defendant’s attempt to help the victim before he left.42 Against that, he identified the power the defendant put into the two blows and the fact that the defendant was much bigger, stronger, fitter and younger than the victim.43
Analysis
[51] The Crown submits that this offending has a number of features in common with Murray, in that there was some degree of verbal dispute between the offender and the victim prior to the punch in that case, and there was a single punch to the face resulting in the victim falling straight backwards and then rendered unconscious. The Crown also submits both cases involved forceful punches resulting in a fracture. Although you do not have the background of the defendant in that case, the Crown submits that you ought to have appreciated the significant harm that could result.
[52] The Crown also submits this offending is similar to McFarland, in that there was an exchange in which the victim’s behaviour angered the offender in that case.
[53] Lastly, the Crown submits the offending in Larson is less serious because the punch in this case involved significant force and, the Crown submits, an intention to cause serious injury.
40 At [38].
41 At [35].
42 At [36].
43 At [37].
[54] Mr Tomlinson, on the other hand, submits that this offending is less serious than that in Larson as you did not seek to create or continue any argument, there was no blindside punch, the victim was the aggressor, and you had been assaulted.
[55] Mr Tomlinson also submits that your culpability is less than that of the defendant in Paku.
[56] In my view, consistent with the above cases, a starting point of three years and six months’ imprisonment is appropriate. There was a forceful punch, and you ought to have appreciated that Mr Amosa could suffer injury as a result of his fall. I accept, however, that there was a degree of provocation by Mr Amosa.
[57] The offending in Murray was more serious as there was no provocative conduct, as well as the fact that the punch was a very powerful blow which caused a complete split of the skin between the victim's nose and top lip with a fracture of the underlying bone.
[58]I consider that the offending in this case is comparable generally to that in
Larson, McFarland and Needham.
[59] The offending in this case is more serious, however, than that in Hetaraka. There was a much greater degree of provocation in that case, and the defendant’s punch was not forceful. Nor did the defendant intend to cause the victim any real harm. The offending here is also more serious than Paku as this case involved a forceful punch as opposed to a less forceful push.
Personal circumstances
[60] I now need to consider your personal circumstances to see whether I should adjust your starting point. Before I do so, I will summarise the updated pre-sentence report.
Pre-sentence report dated 8 August 2018
[61] You are currently 24 years of age. You were born and raised in Samoa. You moved to New Zealand in 2011 when you were 17 years of age.
[62] The pre-sentence report writer noted that you had some difficulty articulating yourself during the interview, but you were assisted by your sister.
[63] You said that you although Mr Amosa was living with your sister, you had only met him three times prior to the offending. The night of the offending was the first time that you had drunk alcohol with him. You said that there were no arguments and there was no violence prior to the offending that evening.
[64] After returning to the Jane Cowie Avenue address later that evening, you described Mr Amosa as acting disrespectfully towards your sister. You say you asked him to stop, but he did not do so. In accordance with Tongan culture, you said your role was to protect your sister’s honour. This contributed to you punching Mr Amosa. But you expressed sorrow for Mr Amosa’s death.
[65] This reference to Mr Amosa disrespecting your sister does not accord with the evidence. Your sister’s evidence was that she heard you say to Mr Amosa words to the effect of how would he like it if it was his sister’s stuff that was being thrown on the street by her partner. There was no evidence that you were protecting your sister’s honour.
[66] Although you say that you consumed approximately 15 stubbies of beer and two 750 ml bottles of beer prior to the offending, you accepted that you were fully able to comprehend what was happening. You said you had never been in a fight before. Neither your mother, your sister, your partner or your employer expressed concerns over your anger management. They say that they have not seen you react violently or angrily before.
[67] I interpolate here to say that your employer has written a letter supporting you. His letter is consistent with what is attributed to him in the pre-sentence report. He is present in Court today to support you along with your immediate supervisor.
[68] The report writer assessed your abuse of alcohol and your propensity to use violence as contributing to your offending.
[69] Overall, the report writer assessed you as at a low risk of reoffending, as you have no previous convictions. But the report writer assessed your risk of harm as high due to your propensity to use violence.
[70] Whilst the report writer refers to your propensity to use violence, it seems that his assessment is based only on this one event. However, the Court has since been made aware that your statement to the report writer that you had never been in a fight before is not entirely accurate. You are a complainant in a forthcoming trial in the District Court and in your witness statement for that trial, you say that after you were attacked, you fought back and started punching the alleged offender. This event occurred before the events in your High Court trial. While this further event could be said to support the report writer’s assessment, on its face, your statement provided to me sets out very different circumstances. I have therefore not placed any weight on it in terms of the assessment I have needed to make.
Youth
[71] Section 9(2)(a) of the Sentencing Act specifically recognises the age of the offender as a mitigating factor. There is, however, no automatic credit given for youth. The Court of Appeal in Churchward v R has recognised three factors associated with youth which are generic and which often attract a discount:44
(a)There are age-related neurological differences between young people and adults. Young people may be more susceptible to negative influences and outside pressures, and may be more impulsive;
(b)Young people are thought to be more susceptible to rehabilitative programmes than older people; and
44 Churchward v R [2011] NZCA 531 at [77].
(c)The effect of imprisonment on young people, including the fact that long sentences may be crushing.
[72] Ultimately, an assessment must be made in the circumstances of each case. Here, you were 23 years old at the time of your offending. That is right at the upper end of the age limit for where a discount for youth might be justified. However, I am satisfied that your offending bears some of the hallmarks associated with your youth. Although alcohol was a contributing factor, you reacted impulsively which was seemingly out of character.
[73] I give you a discount of two months, or around five per cent, for this factor. That brings the sentence to three years and four month’s imprisonment.
Previous good character
[74] I accept the submission made by Mr Tomlinson that you should receive a discount for your previous good character. You have no previous convictions.
[75] I discount your sentence by four months or 10 per cent. That brings the sentence to three years’ imprisonment.
Remorse
[76] Tangible evidence of genuine remorse can warrant a sentencing discount.45 I must also take into account any outcomes of restorative justice processes.46
[77] Here, you participated in a successful restorative justice process. The report suggests it was a moving and emotional process for all parties involved. You demonstrated genuine remorse, and Mr Amosa’s brother accepted your apology. You agreed to participate in anger management and violence prevention programmes, as well as programmes relating to alcohol and drugs.
45 Watene v R [2014] NZCA 381 at [18]. See also Sentencing Act, s 9(2)(f).
46 Sentencing Act, s 8(j).
[78] Mr Amosa’s brother has also filed a victim impact statement which, at his request, was read to the Court by Detective Sergeant Nightingale. Mr Amosa’s brother says that his world collapsed down on him when the doctors turned off Mr Amosa’s life support. The reality that his brother was gone and that he was not going to see or hear from him anymore hit home. However, consistent with his response in the restorative justice process, he also says that he has forgiven you, but he will never forget the loss of his brother and he will never forget the way he died.
[79] Having regard to what I accept is your genuine remorse and the outcome of the restorative justice process, I consider that a discount of four months or just over 10 per cent is appropriate. That brings the sentence to two years and eight months’ imprisonment.
Sentence
[80]Mr Ovaleni, would you please stand.
[81] On the charge of manslaughter, you are sentenced to two years and eight months’ imprisonment.
[82] I gave you a first strike warning on 10 July 2018 when I entered the conviction. It is not necessary for me to repeat that warning.
[83]Stand down please.
Gordon J
7
8
0