R v Uhatafe

[2023] NZHC 248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-9886

[2023] NZHC 248

THE KING

v

PENITIKETO UHATAFE

Hearing:	21 February 2023
Counsel:	C Howard and J Cassidy for Crown L Smith for Defendant
Sentence:	21 February 2023

SENTENCING NOTES OF HINTON J

Solicitors:           Kayes Fletcher Walker, Auckland

R v UHATAFE [2023] NZHC 248 [21 February 2023]

Introduction

[1]    Mr Uhatafe, you appear today for sentence having pleaded guilty to manslaughter.1 The maximum penalty is life imprisonment.

The offending

[2]    It is first necessary for me to set out the facts of your offending because sentencing is a judicial function which must be undertaken in public. You have accepted these facts by way of your guilty plea and there is no dispute about them.

[3]    You knew the deceased Ms Fiva well, as you were in a relationship with her for about five years. You both were born and resided in Tonga. You each had children but none together. The deceased has one teenaged daughter. The two of you came to New Zealand together on a holiday and were unable to return due to COVID-19 travel restrictions.

[4]    On 26 September 2020, you and Ms Fiva were attending a birthday party. The party continued until the early hours of the morning of 27 September. Ms Fiva took her phone out to film one of the other guests singing. You became enraged at this and you began an argument with Ms Fiva. You warned her if she did it again you would hit her.

[5]    Shortly afterwards Ms Fiva resumed filming the other party guest. You stood up and struck her with a strong blow across the left side of her head. Ms Fiva was knocked unconscious, slumped into her chair and then collapsed onto the wooden deck. Guests from the party chased you off the property.

[6]    An ambulance arrived. CPR was attempted. Ms Fiva showed no signs of life and she was pronounced dead. She died from your blow. You must now live with the reality that you were responsible for taking her life and depriving her daughter of a mother.

1      Crimes Act 1961, ss 171 and 177. Maximum penalty: life imprisonment.

Victim impact reports

[7]    I have not been provided with any victim impact reports. The family have elected not to take part in the sentencing process.

What is the appropriate starting point?

[8]    The first stage in the sentencing process is to set a starting point. This is done by reference to the aggravating and mitigating factors of your offending and to other cases similar to yours. After that I will consider what adjustments need to be made to the starting point to account for your personal circumstances.

[9]    There is no guideline judgment for manslaughter cases, due to the wide- ranging circumstances in which manslaughter can occur.2 The proper approach in manslaughter cases involving serious violence is to determine the starting point derived by application of the guideline judgment for wounding with intent to cause grievous bodily harm and to cross-reference that with comparable manslaughter sentencings.3

[10]   The guideline judgment for wounding with intent to cause grievous bodily harm is R v Taueki.4 In that case the Court of Appeal set out three bands in which to set starting points.5 The relevant one in your case is band three, in which appropriate starting points range between nine and 14 years’ imprisonment.6 Band three is appropriate for serious offending which has three or more of the listed aggravating features present and the combination of those aggravating features is particularly grave.7 In your case those aggravating features are:

(a)You targeted your attack on Ms Fiva’s head.8 This is an aggravating feature because attacks to the head can have particularly serious consequences.9 This case is a stark illustration of that;

2      Everett v R [2019] NZCA 68 at [24].

3      At [27], citing Ioata v R [2013] NZCA 235 at [25] and [28].

4      R v Taueki [2005] 3 NZLR 372 (CA).

5 At [34].

6      At [34(c)].

7 At [40].

8      At [31(e)].

9      At [31(e)].

(b)The serious injury caused by the assault.10 In this case the serious injury resulted in Ms Fiva’s death;

(c)The vulnerability of Ms Fiva.11 There was a significant size differential between you and Ms Fiva. The fact that you were standing and she was seated also informs her vulnerability;

(d)The breach of trust.12 You attacked your partner of five years; and

(e)The threat of violence and associated premeditation.13 I accept this factor should only be given a modest to moderate weight as your threat occurred not long before your attack, which indicates presence of only a short-term premeditation.

[11]   Based on the Taueki analysis, your offending falls within either the high end of band two or the low end of band three. Normally that would attract a preliminary starting point in the region of nine years’ imprisonment. However, as the Crown has acknowledged, I need to compare your case to other similar manslaughter decisions. Your offending falls within what are referred to as the “one-punch” cases. Some significant adjustment has to be made to reflect this. The Court of Appeal stated in Blackler v R that a starting point of five to six years is appropriate for this category of case.14

[12]   I must still compare your offending with similar manslaughter cases. Both counsel have referred me to a number of decisions. I will not discuss all of them but only those I consider most relevant.

[13]   In R v Kokiri,15 this Court adopted a starting point of three years and nine months’ imprisonment for an attack on a security guard. At sentencing, Jagose J identified the aggravating factors as the attack to the head; the guard’s vulnerability as

10     At [31(c)].

11     At [31(i)].

12     At [31(j)].

13     At [31(b)].

14     Blackler v R [2019] NZCA 232.

15     R v Kokiri [2019] NZHC 50.

a security guard tasked with keeping order; the fact the assault was committed in the course of other illegal activity; and the fact the offender did not provide any assistance to the deceased after he fell to the ground (instead running away, changing clothes, and boasting about his actions). The Judge found that there was a degree of provocation on the deceased’s part in that case.

[14]   Another relevant decision is Palmer v R.16 The Court of Appeal did not disturb a four-year starting point in that case. In that case the appellant, aged 16, had attended a party where he consumed drugs and alcohol. After an altercation between the deceased and the appellant’s associates the appellant punched the deceased in the head with considerable force. The deceased was blindsided by the punch and had his hands by his side at the time. He fell back and hit his head. He died several days later from an acute subdural haemorrhage. Some of the aggravating features were that there were multiple attackers and that the deceased had attempted to de-escalate the situation.

[15]   In a reasonably similar case, in R v Larson,17 this Court adopted a four-year starting point for an altercation arising out of a night drinking and socialising. Gordon J identified the aggravating factors as an attack to the head; that it involved a moderate degree of violence; that the offender punched the deceased twice; and the fact the offender did not provide any assistance to the deceased after he fell to the ground (instead boasting about his actions to others nearby).

[16]   I was also referred to R v Maka18 and Everett v R,19 both of which I consider not relevant to current offending as they are significantly more serious. Maka concerned a far more premeditated attack and in Everett the domestic relationship between the appellant and the deceased was significantly more abusive.

[17]   Your counsel, Mrs Smith, suggests the starting point should be three to three and a half years imprisonment. The Crown submits that while it seems inadequate, taking account of the other cases I have referred to, a starting point of four to four and a half years is appropriate in your case. Bearing in mind the broad similarity of the

16     Palmer v R [2016] NZCA 541.

17     R v Larson [2020] NZHC 237.

18     R v Maka [2020] NZHC 1161.

19     Everett v R [2019] NZCA 68.

three cases I have discussed, at least in terms of overall culpability, I fix a starting point of four years imprisonment.

Adjustments to the starting point for personal circumstances

[18]   The next step is to consider what adjustments need to be made to the starting point to account for your personal circumstances.

[19]   You are 47 years old and have no previous convictions. Based on this the Crown and Mrs Smith submit that there are no aggravating features personal to you. That is clearly correct.

[20]   Mrs Smith submits you should be entitled to a discount for the matters raised in your s 27 report. She says that the s 27 discount could be up to 30 per cent but acknowledged in oral submissions that figure would be too high. The Crown submit you should not receive any s 27 discount. They accept that you grew up in poverty but say otherwise you had a stable childhood. Discounts of 15 per cent are often made under this head, with room for more in appropriate circumstances.20 However, I agree with the Crown that this is one of the weaker cases for a s 27 discount. I will award a 10 per cent discount to reflect the socio-economic deprivation you experienced in your upbringing which led for example to you and your siblings often being sent home for unpaid school fees. It also reflects the impact on you of the cultural protocol adopted by your father of daily kava drinking sessions.

[21]   Mrs Smith submits you should receive a 20 per cent discount for your guilty plea. The Crown submit you should only receive a 15 per cent discount. Your plea was undeniably late as you entered it on 14 December 2022, over two years after your offending. You did ultimately plead guilty to your original charge and there was no reduction in your culpability. Despite your late plea I consider that a discount is warranted but I agree with the Crown it should be limited to 15 per cent.

[22]   You have undertaken a number of courses to address the causes of your offending. I have read strong letters of support from those who have worked with you

20     Tipene v R [2021] NZCA 565 at [22]–[23], citing Carr v R [2020] NZCA 357 at [65]–[66].

on these programmes. I see you have taken very seriously working on your anger and alcohol issues. I also recognise that you voluntarily undertook community service. You have completed about 60 hours of work and have volunteered a total of 200 hours. I have read the letter you wrote outlining your remorse and I consider it is genuine. A further discount of 15 per cent is awarded to recognise your rehabilitation and remorse. Crown submissions are consistent with that.

[23]   Finally, you are entitled to an appropriate discount for 22 months’ time spent on restrictive bail conditions. The Crown submit a discount in the vicinity of eight months is appropriate. I will make that allowance.

[24]   Applying the total discounts as fixed above, brings me to a sentence of approximately 21 months’ imprisonment. This brings you within range for a community-based sentence. Your pre-sentence report writer advises that you are suitable for home detention and I agree. Conventionally, the length of a home detention sentence will be half the time a defendant would otherwise serve in prison. However, there is no rule that requires me to halve your sentence.21 In light of the inherent seriousness of manslaughter and the importance of the sanctity of life, I consider a term of 12 months’ home detention to be appropriate.

[25]   You have already spent seven months in custody and Mr Howard tells me I must deduct that in total from the home detention sentence.22 That then brings me to a sentence of five months’ home detention.

End sentence

[26]   Please stand Mr Uhatafe. For your charge of manslaughter, I sentence you to a term of five months’ home detention (on the conditions set out in the pre-sentence report). I wish to make it very clear, that sentence is much lower than it would have

21 R v Bisschop [2008] NZCA 229; and R v Tamou [2008] NZCA 88.

22 Longman v Police [2017] NZHC 2928. For completeness, I note that there is a divergence of authority of this Court as to the correct conversion of custodial remand for a discount of home detention. I adopt the approach of Simon France J in Longman. See for divergent views: Vakapora v Police [2022] NZHC 493; Wharrie v R [2019] NZHC 633; Diaz v R [2021] NZHC 426; and Bracken v R [2022] NZHC 3265.

been because of the seven months you have already spent in prison and the 22 months you have spent on restrictive bail conditions.

Hinton J