R v Ovaleni - [2018] NZHC 2034

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…

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 Ovaleni

Details

AGLC: R v Ovaleni [2018] NZHC 2034
Case: [2018] NZHC 2034
Decision Date: 10 August 2018

CaseChat Overview and Summary

The defendant, Mr Ovaleni, was found guilty of manslaughter after he punched Mr Amosa, causing him to fall and hit his head, resulting in his death. The case involved considerations of the defendant's culpability, the mitigating factors, and the impact on the victim’s family. The court determined that the defendant was not acting in self-defense when he delivered the fatal punch and that there was some degree of provocation by the victim. The sentencing process involved assessing the starting point by comparing the case with other similar cases, considering the defendant's personal circumstances, and evaluating mitigating factors such as his age, previous good character, and genuine remorse demonstrated through a successful restorative justice process. The court ultimately sentenced Mr Ovaleni to two years and eight months’ imprisonment for manslaughter.

The final orders of the court were that Mr Ovaleni was sentenced to two years and eight months’ imprisonment on the charge of manslaughter, with a first strike warning previously issued.

Orders