R v Purcell HC Auckland

[2010] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-007177

QUEEN

v

SPENCER PURCELL TIMO FA'AULI EKUENI PURCELL RALPH WENDT

Hearing:         21 October 2010

Counsel:         M Wharepouri for Crown

H Juran for Prisoner Spencer Purcell
P Le'au'anae (on instructions from I West) for Prisoner Timo Fa'auli
P Le'au'anae for Prisoner Ekueni Purcell
P Le'au'anae (on instructions from M Tuilotolava) for Prisoner Ralph
Wendt

Sentencing:     21 October 2010

SENTENCING NOTES OF MILLER J

[1]      Gentlemen, you appear for sentence on a number of charges which I am going to outline in my sentencing notes:

Prisoner	Offence	Section	Maximum Sentence
Spencer Purcell	Manslaughter of Senituli Siulua (aka Tuli) (x1)	s 172 and s 177 Crimes Act 1961	Life Imprisonment

R V SPENCER PURCELL AND ORS HC AK CRI-2008-092-007177  21 October 2010

Ekueni Purcell Timo Fa’auli	Injuring with intent to injure - Japhtha (Sefita) Ofanoa	s 189(2) and s 66 Crimes Act 1961	Five Years Imprisonment
Spencer Purcell Ekueni Purcell Timo Fa’auli Ralph Wendt	Injuring with intent to injure – Jerrie Enuake	s 189(2) and s 66 Crimes Act 1961	Five Years Imprisonment
Spencer Purcell Ekueni Purcell Timo Fa’auli	Injuring with intent to injure – Samson Ofanoa	s 189(2) and s 66 Crimes Act 1961	Five Years Imprisonment

[2]      In summary, Spencer Purcell you are for sentence on manslaughter and the injuring with intent to injure of Jerrie Enuake and Samson Ofanoa.   Timo Fa’auli you are for sentence for injuring with intent to injure all three of Sefita Ofanoa, Jerrie Enuake and Samson Ofanoa.   Ekueni Purcell you are for sentence on the same charges.   Ralph Wendt you are for sentence for injuring with intent Jerrie Enuake only.

[3]      All of you except Mr Wendt pleaded guilty to these charges.  Spencer Purcell did so before arraignment at trial, while Mr Fa’auli and Ekueni Purcell did so after the jury had been put in charge.  At that time the Crown had elected to amend the indictment to substitute injury with intent to injure for the more serious charge of injury  with  intent  to  inflict  grievous  bodily  harm  which  you  originally  faced. Mr Wendt elected to continue with the trial and was acquitted on the charges of injuring Sefita Ofanoa and Samson Ofanoa with intent to injure.  For reasons that I will explain shortly, I reject Ms Tuilotolava’s submission that the jury meant to convict him of the charge involving Samson Ofanoa.  I note that Mr Le’au’anae appeared for Mr Wendt today.

[4]      Also by way of introduction I explain that three of you have now sought a further remand to deal with matters relating to home detention.  I have agreed to do that but I intend to outline why, meaning that I will set out the role that each of you played in these offences and why you are eligible for home detention.   I do that partly out of respect for the family of Mr Siulua who are in Court today.   I acknowledge their presence.

[5]      The charges arise out  of what  I have just said, and  I will repeat was a disgraceful, cowardly and wholly unprovoked attack on a group of people, a group of individuals actually, who were attending a party at Heathberry Close in Manukau, at about 1 am on 26 April 2008.  I record at this point that I have based this summary of the events on the evidence I heard at trial together with, for those of you who pleaded guilty, the summaries of fact that you have accepted.  I do not think there is any material inconsistency among these sources for my purposes.

[6]      Heathberry Close is a dead-end street and the victims of your attacks had been attending a party, as I said at a home on a rear section, some distance from the entrance to the street, where the action occurred.

[7]      You went there in a convoy of three cars to collect Mr Wendt’s brother, who lived in the street at the time, so that you could go clubbing.  As the convoy entered the street, Sefita Ofanoa walked very slowly across the street, causing you to stop. He was very drunk.  He had left the party because he was annoyed that someone had taken his keys from him to prevent him driving.  He was accompanied by a woman, Hinemoa Tauelangi, and followed at some distance by Jerrie Enuake.

[8]      Mr Wendt, who was driving the first car, exchanged words with Mr Ofanoa. Timo Fa’auli, who was in one of the following cars, got out and attacked Mr Ofanoa without provocation, knocking him to the ground.  Ms Tauelangi began to call for help.

[9]      After the initial assault on Mr Ofanoa, Jerrie Enuake arrived.   He found Mr Ofanoa standing up and surrounded by the group of you.  He stated that he came in peace.  He was nonetheless set upon by three men, that was Mr Wendt, Ekueni Purcell, and Spencer Purcell.  The technique that you used was that of rushing him and knocking him down through force of numbers and then punching and kicking him as he lay on the ground.  Mr Wendt inflicted at least one of the blows and in my opinion probably more.   Mr Enuake was able to escape however, and fled to the house, where he raised the alarm.

[10]     Samson Ofanoa ran to the street in response to this.  He too was rushed by three men, Ekueni Purcell, Timo Fa’auli and Ralph Wendt.   He too was knocked down and kicked and punched repeatedly.  At this time Spencer Purcell returned to his car.

[11]     Partygoers then arrived in numbers, and some of them stood about Spencer’s car, or were approaching it.  To ensure that no one forced their way into the car he revved the engine to scare them off and then drove off at speed.  He appears to have thought that the men around the car would stay out of his way.   However the car struck Senituli Siulua who later died in hospital from a brain injury suffered as he was  knocked  to  the  ground.    I  accept  that  Mr  Purcell  did  not  intend  to  harm Mr Siulua, but he acknowledges that there was a high degree of recklessness about his driving.

[12]     The group of you got in your cars and left the street.  But before you did so, Timo Fa’auli got out of the car he was in and again attacked Sefita Ofanoa, knocking him to the ground again and kicking him.  That incident demonstrates what in my opinion is already clear, that you were the aggressors throughout.

[13]     Sefita Ofanoa was knocked unconscious, and he received cuts, bruising and a strained back as well as chipped and broken teeth.   Mr Enuake received a gash behind  his  left  ear,  bruising  and  soreness  to  his  body,  and  cuts  and  abrasions. Samson Ofanoa received bruising to his left eye.  Overall, I characterise the injuries as moderate.

[14]     With respect to count one, which rested on the final assault on Sefita Ofanoa, the Crown charged Timo Fa’auli as a principal but contended that the others were guilty as parties, for they attacked Samson Ofanoa and Jerrie Enuake with the intent that Mr Fa’auli would resume his attack on the original victim, Sefita Ofanoa.  The jury acquitted Mr Wendt of this charge, understandably so in my view, for the evidence that he acted for that purpose was tenuous.   For the same reasoning I approach sentencing on the basis that this charge does not add to the overall culpability of Ekueni Purcell.  It is of course the lead offence for Mr Fa’auli.

[15]     This was a group attack.  Having started a brawl like that, and having acted in concert throughout you must all accept a large share of responsibility.  But there are distinctions in culpability.  In particular, Spencer Purcell is responsible for the death of Mr Siulua.  There is no suggestion that his using the car in that way was part of a concerted action;   he alone is responsible.   That is an important point because it means there is a  real  difference between him  and the others when  it comes to sentence.

[16]     Mr Fa’auli was unquestionably the most blameworthy for the attack.  He both began and ended the fighting.  But for his actions, and he acknowledges this today, it is unlikely that anything would have happened.  The rest of you got out of your cars to assist him.

[17]     Ekueni Purcell is somewhat less culpable then Mr Fa’auli.  Spencer Purcell is somewhat less culpable again, so far as his involvement in the assaults is concerned. I have already mentioned the driving.

[18]     Mr Wendt has of course, the benefit of acquittals on two counts.   I do not think that calls for an end sentence that is very much shorter than some of the others, and I need to explain why.  He was by his own admission a participant in the attacks on Jerrie Enuake and Samson Ofanoa.   He was one of the three men who rushed each of them.  The acquittal of Samson Ofanoa is probably explained by the Crown’s failure to show that he actually inflicted any injury himself.  For reasons I need not go into today, I did instruct the jury that the Crown must prove that.   And as I reminded the jury in summing up, Mr Wendt admitted punching Mr Enuake but denied doing any harm to Mr Ofanoa.   I flatly reject Ms Tuilotolava’s submission that  the  acquittal  is  accounted  for  by self-defence  or  defence  of  another.    The Crown’s evidence compellingly excluded that possibility;  it was left to the jury only because Mr Wendt gave evidence and claimed that he was defending his friends.  As I have said, the group of you were the aggressors throughout.  Notwithstanding that he did not complete the offence, Mr Wendt was involved in the attack on Samson Ofanoa.   And of course he did not plead guilty.   So for all of those reasons his sentence can only be marginally less than that of the others.

[19]     There are victim impact statements from Mr Siulua’s mother and his young sisters.  I have read them all.  They make sad reading.  Plainly he was a central part, an integral part of his family, and much loved by his younger sisters.  His mother has read her victim impact statement today.     She explains that he was mature and outstanding for his age, a major contributor to the family since he began working at

14.  I extend my condolences to the family.

Personal circumstances

[20]     I now outline your personal circumstances.

Spencer Purcell

[21]     Spencer  Purcell,  you  are  aged  24.     You  describe  a  turbulent  family background.  You left school at 15 to become a pallet nailer.  You and your partner of seven years have two young children.  You have previous convictions but none that are aggravating;   they relate to alcohol and driving.   You are said to have rehabilitative needs;   they concern propensity to use violence and alcohol and to associate with the wrong people.   Unless you address those, your reoffending risk will be medium.  In interview you did express appropriate remorse.  I note that you have been in custody since 30 April for breaches of bail.

Timo Fa’auli

[22]     Timo Fa’auli, you are aged 23.  You too came from a background of physical abuse and you left school at 15.  By 18 you were living with a friend, having been kicked out of home for failing to bring a wage in, and you committed burglaries, eventually finding yourself in prison.  Apart from the burglaries, you have a number of convictions for disobeying court orders or failing to answer bail, and there is one assault conviction.  You have had occasional employment.  In interview you denied the summary of facts, claiming you did not throw the first punch.   However, the summary of facts makes it clear that you were the aggressor.  Because you were not involved  in  the  trial,  you  would  be  entitled  to  call  evidence  about  this,  but Mr Le’au’anae has taken instructions and you have today accepted the summary of

facts.   I have already heard the witnesses and I am satisfied that you were the aggressor.   You have expressed remorse and a willingness to apologise, and the probation officer accepts that you are motivated to address your offending behaviour.

[23]     Regrettably, since this offending you have been diagnosed with myasthenia gravis, a rare chronic autoimmune neuromuscular disease.  It causes weakness of the voluntary muscles of the body, including facial muscles and those that control chewing and  speech  and eye  movement.    You  must  rest  a  great  deal  and  take medication two-hourly.   From time to time your condition has become acute, requiring a respirator.   That is so because in your case the condition also affects breathing.  This led to the trial being delayed.

[24]     The probation officer notes that you would benefit from some rehabilitative programmes.

Ekueni Purcell

[25]     Ekueni  Purcell,  you  are  21.    In  contrast  to  your  brother  you  report  an uneventful upbringing, and you have no previous convictions of any sort.  You are single with no children;  you also left school at 15.  You have a harmful pattern of alcohol use and that is demonstrated by your bail history.  You have now spent some months in custody on this matter, having been remanded in custody since 30 April for breach of an alcohol condition.  That was the last of several breaches.  You do express remorse, which the probation officer accepts was genuine and your reoffending risk is assessed as low.

Ralph Wendt

[26]     Mr Wendt, you are 23.  You report a difficult upbringing, with much conflict in the family home and financial struggles.   You left school in your 6th  form to complete a hospitality course, and you have had some employment.  I am told you now have a job.  You have a partner of some five years and you have two children together.    Unless  recently  you  have  been  looking after  the  children  while  your partner works, and you reside with your step-father, who is ill.

[27]     You have previous convictions for driving offences, failure to answer bail, presenting a weapon, and wilful damage, but the list is not extensive.  The probation officer identifies your propensity for violence, poor associates and bad attitude as factors contributing to your offending.   It is recommended that you address these factors through a departmental programme.  Your risk of reoffending is assessed as medium.  The probation officer did not recommend a sentence, but sought a remand because of the conflict about your convictions which I have already mentioned.

[28]     A home detention annexure was prepared.   It assesses your current address and its occupants as suitable.

Sentencing principles

Manslaughter

[29]     I deal first with the manslaughter charge.   The maximum sentence for this crime is life imprisonment, but sentences vary widely.  Vehicular manslaughter cases may justify a starting point of as much as 10 years.[1]   But such cases may involve a car being used as a weapon and driven directly at a group of people to harm or threaten them.  Mr Purcell’s offence is somewhat less serious than that.  His aim was to escape and he did not mean to hit Mr Suilua.   Mr Juran has  argued in his submissions that this case is analogous to reckless driving and there is something in that.   I have considered the reckless driving authorities referred to me by counsel.

[1] R v Johnson HC Whangarei T31987, 9 June 2004;   R v Tauira HC Auckland CRI 2006-092-

11737, 19 June 2009.

They show that end sentences in such cases appear to have ranged from 3-8 years imprisonment.   At the high end, however, those sentences reflect sustained and extremely dangerous driving.

[30]     In Spencer Purcell’s case the appropriate starting point based on those cases would be five years imprisonment.  Although as I have said, the car was not driven into Mr Siulua with intent to harm him and the intent was to escape, he did take the risk that someone would not be able to get out of the way of his very aggressive driving.  And the situation was one that he had brought upon himself.  I do not think

that a lesser starting point can be justified.  I add six months for his involvement as a party to the other offences to which he has pleaded guilty.  That six months reflects the totality principle.  He was not an instigator, but he was actually involved in the attack on Mr Enuake.

Injuring with intent to injure

[31]     I turn to the cases on injury with intent to injure.   The leading case is R v Harris.[2]    It established three bands which differ mainly according to the degree of injury and the severity of the attack.

[2] R v Harris [2008] NZCA 528.

[32]     This case features attacks on three victims.   All were kicked in the head. Two of them were attacked by three of you.   All were vulnerable in that setting. Fortunately only moderate injury was done to them.   But the accumulation of aggravating factors place this case around the top end of band two in my opinion. Band two provides for an end sentence of up to two years imprisonment.

[33]     For Timo Fa’auli, the appropriate starting point is three years imprisonment. As I have said, Mr Fa’auli was the most culpable so far as the attacks on the three victims are concerned.

[34]     For Ekueni Purcell the appropriate starting point is two years imprisonment, and for Ralph Wendt it is 20 months.

Aggravating and mitigating factors

[35]     I must take into account personal aggravating factors and mitigating factors. [36]     I deal at the outset with a defence submission that a full credit of one-third

ought to be given for guilty pleas entered by Timo Fa’auli and Ekueni Purcell after the Crown altered the indictment.  That does not arise in Spencer’s case since the manslaughter charge was not amended.  I reject this submission.  Counsel accept that there was an offer to plead to a lesser charge, but it was a lesser charge than the one

to which you did plead.  In the circumstances, you are entitled only to the normal discount for a plea entered at the commencement of trial, that is 10 per cent.

Spencer Purcell

[37]     Spencer Purcell, the only relevance of your previous convictions is that they deprive  you of a  claim to previous  good character.    I do not treat them as an aggravating factor.

[38]     In mitigation, as I have said, you would receive a 10 per cent credit for your guilty pleas.  There are no other mitigating factors.  You were on EM-bail for about four months and you do not get credit for that on the sentence calculation, but I do not give you any additional discount for that because there were breaches of bail.  I make no additional allowance for remorse because there is an allowance implicit in the guilty plea and this is not one of those cases where an extra allowance is called for.

Timo Fa’auli

[39]     Mr Fa’auli, again, I will not treat your previous convictions as an aggravating factor.

[40]     In mitigation, you too are entitled to a credit of 10 per cent for your guilty pleas.   But in your case I must also take into account your illness.   There is no suggestion that your health problems are incapable of being dealt with in prison, but they are very serious.  I accept that imprisonment will be harder on you than on other prisoners and I am prepared to make an additional discount of a further 12 months for that.  That would amount to a sentence of 22 months imprisonment.  That brings your sentence within the two years which makes you eligible for home detention. The Crown does not oppose it, and as I have already mentioned - I may not have mentioned - that the pre-sentence report does recommend a further remand for the completion of a home detention appendix.  So you will be remanded on bail for the preparation of a home detention appendix.   You are to appear in this Court for sentence on 18 November.

Ekuini Purcell

[41]     Ekueni Purcell, you too will get a discount of 10 per cent for your plea. Given your age and lack of previous convictions, I am prepared to make a further allowance of about 10 per cent for previous good character and prospects of rehabilitation.  That would amount to a sentence of 19 months imprisonment.  You will appreciate that that is similar to the end sentence that Mr Fa’auli would receive, although he was more culpable than you.  The reason for that as I have explained is his illness.

[42]   The probation officer did not recommend home detention in your case, reasoning that the offence is too serious.  So no appendix was prepared.  So I do not know whether you have a suitable address and whether you are a suitable candidate.

[43]     There were some breaches of bail in your case as I have mentioned;  you do have a problem with alcohol that may make you unsuitable.  However, I cannot say whether home detention is ruled out, and your previous record would suggest it. Mr Le’au’anae has raised a practical question whether you are better off having a sentence of imprisonment having regard to time served which is now substantial. That is a matter which I can evaluate when you appear for sentence.  So you too will

be remanded to the 18th  of November to appear for sentence.   A home detention

appendix is to be prepared.  In your case the remand will be in custody.

Ralph Wendt

[44]     Mr Wendt, I do not treat your previous convictions as an aggravating factor either.

[45]     There are no mitigating factors so in your case so the starting point would also be your end sentence, 20 months.

[46]     The length of that sentence means that you are eligible for home detention, and as I have noted you have no previous convictions for violence.   It is recommended, and in your family circumstances it is a proper sentence.   I have

already indicated in argument with counsel that I regard community detention as unavailable.   This offence was too serious for that.   However, Mr Le’au’anae has asked that I remand you to the 18th  of November along with the others, so that Ms Tuilotolava can make submissions on you behalf in relation to home detention. There may be a possibility that home detention can be combined with continued employment in  your case.   I do not know whether that is so, but it should be explored.  You too will be remanded and on bail until the 18th of November.

[47]     The end result is that Spencer Purcell alone remains to be sentenced today.

Decision

[48]     Spencer Purcell, your sentence for manslaughter is four years, eleven months imprisonment.  You will serve a concurrent sentence of 18 months imprisonment for injuring Jerrie Enuake and Samson Ofanoa.  So that means your effective sentence is four years, eleven months imprisonment.  You may stand down.

[49]     You may all stand down.

Miller J

Solicitors:

Meredith Connell, Auckland for Crown