R v Vaenuku - [2023] NZHC 3593

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-292-575

[2023] NZHC 3593

THE KING

v

NIGEL EVA KIENEIO VAENUKU

Hearing: 8 December 2023

Appearances:

C Howard for Crown

E P Priest for Defendant

Sentence:

8 December 2023

SENTENCING REMARKS OF LANG J

Solicitors/counsel:
Kayes Fletcher Walker Ltd, Auckland E P Priest, Auckland

R v VAENUKU [2023] NZHC 3593 [8 December 2023]

[1] Mr Vaenuku, you appear for sentence having pleaded guilty to one representative charge of assault with intent to injure.1 The maximum penalty for that offence is three years imprisonment.

Background

[2] You have pleaded guilty on the basis of an agreed summary of facts. This records that a large group of people was gathered in a carpark in East Tamaki in the early hours of Sunday 13 November 2022. They were socialising in anticipation of a World Cup rugby league match involving the Samoan national team that was scheduled to commence at 3.30 am that morning.

[3] You arrived at the carpark in the early hours of the morning with several other associates. As you were arriving, one of the persons present approached another person, Mr Ola, and stabbed him in the chest with a knife. You did not witness this occurring. However, you and your associates then ran across the carpark towards Mr Ola. One of your associates then kicked Mr Ola, causing him to fall on the ground. Once he was on the ground, you and several associates began punching and kicking him in the head and body. Mr Ola managed to regain his footing but collapsed a short time later.

[4] A short while later, you and your associates began assaulting a second victim, Mr Tuaumu. He also fell to the ground. You stood back and encouraged your associates to punch and kick Mr Tuaumu multiple times to the head and body. During this attack, one of your associates also stabbed Mr Tuaumu on several occasions in the head, neck, shoulder and hands. You and your associates then left the area in separate vehicles.

[5] Sadly, Mr Ola died as a result of the single stab wound to the heart that one of your associates inflicted on him at or about the time you arrived at the carpark. The post-mortem examination also showed bruising to his face consistent with having been struck on the side of his face. Mr Tuaumu suffered multiple stab wounds as well as bruising and swelling to his left eye.

1 Crimes Act 1961, s 193.

Starting point

[6] You are to be sentenced on the basis that you physically assaulted Mr Ola after he had been stabbed and had fallen to the ground. You then encouraged your associates to assault Mr Tuaumu. The Crown submits that your offending justifies a starting point of between two and two and a half years imprisonment. Your counsel contends that a starting point of 12 to 14 months imprisonment is appropriate.

[7] The aggravating…

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 Vaenuku

Details

AGLC: R v Vaenuku [2023] NZHC 3593
Case: [2023] NZHC 3593
Decision Date: 8 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Nigel Eva Kieneio Vaenuku was sentenced for his involvement in a violent assault incident that occurred in a carpark in East Tamaki. Vaenuku pleaded guilty to assault with intent to injure, an offence with a maximum penalty of three years imprisonment. The incident took place in the early hours of 13 November 2022, where Vaenuku and his associates assaulted two victims, Mr Ola and Mr Tuaumu, after Mr Ola had been stabbed by another individual. Mr Ola tragically died from the stab wound, and Mr Tuaumu sustained multiple stab wounds and injuries.

The court was tasked with determining the appropriate sentence for Vaenuku, considering the starting point for the offence, the aggravating and mitigating factors, and the impact on the victims. The Crown argued for a starting point of two to two and a half years imprisonment, while Vaenuku's counsel contended for a starting point of 12 to 14 months imprisonment. The court considered various sentencing authorities and selected a starting point of 18 months imprisonment, acknowledging Vaenuku's role in the assault but noting his lesser involvement in the second assault.

After assessing the aggravating and mitigating factors, the court determined that Vaenuku's previous convictions did not warrant an uplift in the starting point, but his guilty plea warranted a 25% discount, equivalent to four and a half months. The court also considered Vaenuku's efforts to address his alcohol issues and his employment status as mitigating factors, reducing the sentence by an additional three and a half months. The court decided against further discounts for remorse and good character due to Vaenuku's criminal history and alcohol-related convictions. The court also reduced the sentence by four months to account for the time Vaenuku spent on restrictive electronic monitoring bail conditions.

Ultimately, the court decided on a non-custodial sentence, considering Vaenuku's role as a breadwinner for his family and his engagement with rehabilitation services. The court imposed a sentence of four months community detention with a 12-month supervision period, allowing Vaenuku to continue working during the day while being subject to a curfew at night. The sentence was reduced by six weeks to reflect the time Vaenuku spent in custody before being granted electronic monitoring bail. Vaenuku was also subject to conditions prohibiting the possession or consumption of alcohol or illicit drugs during his sentence.

Orders