R v Vaenuku
[2023] NZHC 3593
•8 December 2023
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 features of your offending include the fact that you were one of a group of several persons who assaulted two separate victims in concert. The assaults involved punching and kicking to the head and body. The most serious of the two victims’ injuries were obviously the stab wounds inflicted by one of your associates but these injuries are not reflected in the charge to which you have pleaded guilty. Both victims were obviously vulnerable because the assaults occurred after they had been knocked to the ground. They both received bruising as a result of the assaults inflicted on them by you and other members of your group.
[8] I have received two victim statements from members of Mr Ola’s family. They were obviously directed to the stabbing that led to Mr Ola’s death. The victim impact statements outline the devastating effect that Mr Ola’s death has had on his family. Obviously those injuries were not inflicted by you and you have not been charged with them but nevertheless the effects that Mr Ola’s family describe are a salutary reminder of what can happen when group attacks occur in the early hours of the morning fuelled by alcohol.
[9] There is no guideline judgment of the Court of Appeal to assist the Court in fixing a starting point for this offence. However, other sentencing decisions involving the infliction of violence with intent to injure may be of some assistance.2 Care must, however, be taken in this exercise given the fact that the charge to which you have entered a guilty plea carries a much lower maximum penalty than a charge such as injuring with intent to injure.
2 Tamihana v R [2015] NZCA 169.
[10] Counsel have provided me with a range of sentencing authorities in support of their respective positions.3 I consider the most analogous of these to be a case called R v Folau.4 The starting point selected in that case was 18 months imprisonment. The Crown submits that the circumstances of your offending are more serious than those in Folau. I would have agreed with that proposition had you physically participated in the second assault. Having regard to your lesser role in relation to that assault, I am satisfied that your culpability falls within the middle of the available range. I therefore select a starting point of 18 months imprisonment.
[11] It is now necessary to determine whether, and if so to what extent, I should adjust the starting point to reflect aggravating and mitigating factors personal to you.
Aggravating factors
[12] You have previous convictions but none of these relate to offending involving violence. I therefore add no uplift to reflect your previous convictions.
Mitigating factors
[13] You are obviously entitled to credit for your guilty plea. Both counsel agree that this should attract a discount of 25 per cent, or four and a half months.
[14] Alcohol clearly played a part in the present offending. You told the writer of the pre-sentence report that you had been drinking alcohol at a work function on the evening in question and did not want the evening to end at that point. This explains why you went to the carpark with the intention of continuing to drink and socialise with your associates. You told the report writer that you have now given up drinking as a result of the present incident. You have also engaged with a drug and alcohol counselling service and have begun attending rehabilitative therapy sessions to address your issues with alcohol.
3 Tamihana v R [2015] NZCA 169; R v Folau [2021] NZHC 2069 and Tumu v Police [2021] NZHC 1571.
4 R v Falou [2021] NZHC 2069.
[15] Importantly, you hold down a steady job and your employer speaks highly of you. In addition, you have begun attending sessions designed to curb any tendency you may have to resort to violence. I propose to allow a further discount of three and a half months, or just over 19 per cent, to reflect your rehabilitative efforts and prospects.
[16] Your counsel also urges me to provide discounts for remorse and your previous good character. I do not consider I can realistically provide a discount to reflect your previous good character given the fact that you have two previous convictions for driving with excess breath alcohol, a conviction for driving whilst disqualified and a conviction for dangerous driving. You also have two convictions for failing to stop or ascertain injury after a motor accident. The fact that you were convicted of driving with excess breath alcohol in 2015 and then again in 2017 reflects the issues that you obviously face with alcohol. It is encouraging to see that you are now taking steps to address these in a positive way.
[17] Similarly, I am not prepared to allow a further discount to reflect remorse. I consider that issue is adequately dealt with in the discount given for your guilty plea.
[18] The factors I have identified reduce the sentence to one of 10 months imprisonment. In addition, you have spent just under 12 months subject to restrictive EM bail conditions. For a lengthy period you were subject to a 24-hour curfew. This was gradually reduced to enable you to leave your address and, more recently, to allow you to work. I propose to reduce the sentence by four months to reflect this factor. This reduces the sentence to one of six months imprisonment.
[19] The length of the sentence means you are eligible for a non-custodial sentence. You and your partner have a new-born baby and you are the breadwinner for the family. Your proactive engagement with rehabilitation services indicates to me that you have accepted responsibility for your offending and that a prison sentence would be a retrograde step. I therefore accept that it would not be appropriate to sentence you to imprisonment.
[20] Your counsel urges me to impose the rehabilitative sentence of intensive supervision, but I do not consider this would be adequate to reflect the culpability of your offending and other sentencing principles. You willingly became involved in a mindless form of group violence when you had no reason whatsoever to become involved in what was happening when you arrived in the carpark. Some form of semi- custodial sanction is required to bring home to you and others the seriousness of becoming involved in offending such as this. I consider a sentence of community detention to be appropriate because it will enable you to continue working during the day whilst being subject to an evening curfew at night.
[21] Ordinarily I would sentence you to six months community detention coupled with 12 months supervision. However, you spent 23 days in custody before being granted EM bail. This is the equivalent of six weeks imprisonment. I propose to reduce the sentence by six weeks to reflect that fact.
Sentence
[22] You are sentenced to four months community detention coupled with 12 months supervision. You are to serve that sentence at the address at which you have been remanded on EM bail. This has been assessed as technically suitable for a grant of EM bail and the occupants have also been assessed as suitable sponsors.
[23] You are to report to the nearest probation office prior to 5.00 pm today. You are to reside at your nominated residential address and are to observe an electronically monitored curfew at that address between the hours of 9.00 pm and 5.00 am each day. This will enable you to continue your current work commitments. The curfew will begin tonight.
[24] You are also to be subject to a condition that you are not to be in possession of or consume alcohol or illicit drugs for the duration of your sentence.
Lang J
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