R v Viliamu HC Auckland CRI 2006-092-4989

[2007] NZHC 2076

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-4989

QUEEN

v

REYNOLD VILIAMU FAAFIU TOOHILL ANORI SALATIELU

Hearing:         30 August 2007

Appearances: Mr Patena for Crown

Mrs Tuilotolava for Viliamu & Toohill
Mr Mansfield for Salatielu

Judgment:      30 August 2007

SENTENCE OF WINKELMANN J

Crown Solicitor, Auckland

M Tuilotolava, Ferguson Tuilotolava, Manukau

R Mansfield, Auckland

R V REYNOLD VILIAMU AND ORS HC AK CRI 2006-092-4989  30 August 2007

[1]      Mr Salatielu, Mr Toohill and Mr Viliamu you have all pleaded guilty to two counts of causing grievous bodily harm with intent to injure for which the maximum term of imprisonment is seven years.

Background facts

[2]      Your  offending  arises  out  of  the  same  incident.    All  three  of  you  are associates  of  George Naea.    Mr  Toohill  and  Mr  Viliamu,  you  are  cousins  and Mr Salatielu, you are his friend.

[3]      Mr Toohill, you saw George Naea at a family gathering in the evening on Saturday 22 October 2005.  He told you that his father Lio had been beaten up and that he wanted revenge against the PDB’s.  The PDB’s are a youth gang that George Naea believed responsible for that assault.  Mr Viliamu, you were told of the beating earlier that day.

[4]      Together Mr Toohill and Mr Viliamu, you went to pick up Mr Salatielu at his house.  Mr Salatielu, you initially thought that you were going to a party but were told that there was a change of plans and that you were going to check on Lio Naea at his house.  You armed yourself with three wooden table legs which you put in Mr Toohill’s car.

[5]      All three of you saw Lio Naea at his home and took him to nearby shops to buy cigarettes and alcohol.  You spent some time with him until George Naea told you, either by text message or phone call, to leave his father and come and pick him up from the JCB pad in Mt Wellington.   George Naea had organised with other members of the JCB gang to meet at the JCB Pad, so that they could travel as a group to Norrie Smith Avenue to confront the PDB’s.

[6]      You arrived at the pad and picked up George Naea and Anapapa McCarthy, both members of the JCB’s.  A large number of young men travelled to Norrie Smith Avenue in the early hours of Sunday 23 October 2005; estimates varying between 20

to 40 young men.  The group were predominantly JCB’s.  You travelled in a convoy of cars.   You went there knowing that the purpose of the trip was to confront the PDB members in retaliation for the alleged assault on Lio Naea and that it could well happen that in that confrontation someone could be seriously hurt.

[7]      Mr Salatielu and Mr Toohill, you remained in the car and were not directly involved in the attack or in damaging any property in the area.  Mr Viliamu, you got out of the car with a table leg and followed George Naea around.   Together with George Naea you smashed car windows and chased other people who were in the area of the scene.

[8]      Several members of the group did attack the two victims, Ernest Pio and Hanton Turia.  Mr Pio was hit on the head with a hammer and a baseball bat.  He was knocked unconscious and whilst on the ground a number of offenders continued to hit him around the head and body with baseball bats, bottles and pieces of wood. Mr Turia was also knocked unconscious and beaten about his head and body with similar weapons.  Both victims suffered severe head injuries.  It was thought that Mr Pio might well die.  Both suffer long term consequences from those attacks.  None of you three struck either victim.

[9]      I have victim impact statements and psychological reports from the victims, Mr Turia and Mr Pio.  Mr Turia says that he continues to suffer dizziness and pain as a result of the injuries.  It is difficult for him to concentrate and he can now neither work or study.  After the attack his parents and he have had to move home, because of their fear that there would be more trouble with the JCB’s.  I also have a report from a neuropsychologist as to the long term physical and psychological effects on Mr Turia of the attack.  She says that Mr Turia presents with on-going symptoms of severe brain injury.   He has suffered a reduction in functioning by reason of the injuries, difficulty expressing himself and difficulty in processing information, and concentration.  He is suffering from depression.  In terms of prognosis, as it is now nearly two years post injury, further spontaneous recovery is thought to be unlikely.

[10]     Mr Pio suffered extremely severe head injuries and was in rehabilitation for about three months.  He says that he still has difficulty processing information but

his concentration is improving.   Mr Pio is however able to work and is in employment.  Like Mr Turia, Mr Pio has had to move house to get out of the area. The  neuropsychologist  noted  that  Mr  Pio,  like  Mr  Turia  was  experiencing depression, and also had symptoms of anxiety.   He has on-going problems with concentration and processing of information.

[11]     I  also  have  information  in  front  of  me  as  to  each  of  your  personal circumstances.  Mr Salatielu, you are 19 years old.  You were 17 years old at the time of this offending.  You were born in Niue and came to New Zealand when you were two months old.  You have been raised by your grandparents and say that you have had a very supportive and religious upbringing.   You are the third of five children and you continue to have close contact with your siblings, although most reside in Niue.   You attended Otahuhu College and left school at 18.   You have completed a preparation for a modern carpentry apprenticeship course with Manukau Institute of Technology and your tutor has spoken highly of your work ethic and character.   You are employed in a full time building apprenticeship.   You are an active member of the Ekalesia Niue Church in Mangere.  You are described by the youth leader as reliable, talented but quite shy.  It is accepted by the Crown that you are not affiliated with any youth gang.

[12]     You report that  you were afraid to jump out of the car at Norrie Smith Avenue as you thought you might also be beaten, because you were not clearly identified by your clothing as a member of the JCB’s.  You told the report writer that you felt pressured by the others to wait in the car.  This is consistent with evidence you gave at the trial of your co-offenders.  You report that you do not use drugs and testing indicated that you do not have a harmful pattern of alcohol use.  You have expressed remorse and regret for your actions.  You are assessed as having a high level of motivation to change.  You are a first offender.

[13]     Mr  Toohill,  you  were  born  in  Samoa  and  were  17  at  the  time  of  the offending.  You currently live with your mother and father.  You left school at the beginning of year 13 with NCA levels 1 and 2.   You have completed an entry to automotive course at Unitech and wish to take up an apprenticeship.  You play rugby and report that you do not drink alcohol or take drugs.  In relation to this offending

you say you felt obligated to support your cousin.  You did not want to say no to your cousin and that you felt scared because you did not know what was going to happen.  Everything happened very quickly and as with Mr Salatielu you say that you were concerned with protecting yourself, which is why you did not get out of the car.  You were also mindful of the fact that you were driving your mother’s car and did not want to leave it unattended.

[14]     You have completed an anger management course at the Manukau Group for Men at the referral of a psychologist.  You recognise the need to undertake further counselling.   Your risk of reoffending is assessed as low and you appear to be remorseful for the impact on the victims of the offending.   You have no prior convictions or outstanding fines.

[15]     Mr Viliamu you are 21 years old and were 19 at the time of this offending. You were born in Samoa and moved to New Zealand with your parents in 2000. You are one of seven children.

[16]     You attended school in Otahuhu where you obtained your school certificate. You completed seventh form.  Until your guilty plea you were employed with Big Ben pies and were a good worker.  You gave the bulk of your pay to your mother to help with family expenses.  You claim not to use alcohol or drugs and are a keen rugby player.  In relation to the offending, you dispute the substance of the summary of facts, maintaining your innocence and claim that you pleaded guilty on your lawyer’s advice.  You acknowledge that you were present during the offending and say that you feel sorry for the victims.  You claim that you are not a violent person, despite your admission that along with your cousin George Naea you smashed a car. The report writer considers that you have a tendency to minimise your account of events and your actions.  You are not a member of a gang.

[17]     You have no prior convictions.   Your motivation to change is assessed as low.  You accept that you need to disassociate yourself from your criminal peers, but this may not be realistic given that your co-offender is a cousin.  The report writer says that you also appear to display little insight into your offending.  Although as a first time offender you would normally be assessed as at low risk of reoffending, the

report writer says that because of the serious nature of the offending and your low motivation, you are at higher risk of reoffending.

[18]     In terms of the offences to which you have pleaded guilty, it is accepted by the Crown that you were not the principal offenders.   You were party to causing grievous bodily harm to the two victims with intent to injure.  In terms of s 66(2) of the Crimes Act 1961, this means that you foresaw that it was a probable consequence of your group’s plan to go to the area to confront members of the PDB’s, that a member or members of the PDB’s would suffer very serious harm inflicted by someone who intended to injure them.

[19]     The Crown submits that the aggravating features of the offending include the use of violence and weapons, attacks to the head of the victims, the extent of the harm, the number of attackers, the vulnerability of the victims both unarmed and outnumbered, premeditation and the gang context in which this occurred.  However, the Crown accepts that the culpability of each of you is less than some of your co- offenders.  Mr Viliamu you did not assault anyone.  Mr Salatielu and Mr Toohill you remained in the car and were not directly involved in attacking anyone or damaging property.

[20]     The Crown submits that having regard to the combination of aggravating features and the degree of culpability, a starting point is appropriate in the range of

4-5 years, which is calculated by reference to the sentencing range described as Band

2 in a case, R v Taueki.  The Crown accepts that a substantial discount of up to 60% of this sentence is appropriate for you Mr Toohill and for you Mr Salatielu as you gave evidence in the trial of your co-offenders in what must be accepted as intimidating circumstances, pleaded guilty early and are otherwise of good character. If the Court were to impose a sentence of two years or less upon you, the Crown would not oppose leave to apply for home detention being granted, or deferment of the commencement of your sentence.   In relation to you Mr Viliamu, the Crown accepts that credit should be given for your guilty plea during the course of trial as being at the first opportunity, as soon as the indictment was amended and also for your good character, and for other matters raised by the Crown today.  The Crown

submits that a significant discount but not one as significant as your co-offenders

Salatielu and Toohill is appropriate.

[21]     For you Mr Salatielu, Mr Mansfield stresses that although you did not plead guilty until shortly before trial, attempts were made to reach an agreement with the Crown whereby a guilty plea could be entered to a lesser charge well in advance of the point in time when your guilty plea was entered.  He says that your guilty plea shows that you accepted your role in the offending and that you are a person of integrity.  I accept the submission and propose to give you full credit for your guilty plea.    Your  counsel  submits  that  in  terms  of  your  culpability  a  sentence  of community work and supervision is appropriate; you were not a member of the JCB’s, and you went with a friend to the proposed incident.  He acknowledges that you took three wooden table legs with you when you left home and that a table leg was to be used as a weapon, but only if you needed to defend yourself.  You went to watch the fight which was planned to take place but not to be an active participant in it.

[22]     On entering your guilty plea you gave assistance to the Crown and thereby accepted a risk of intimidation.  Your counsel points to your good character and has provided many testimonials to that, including from your tutor at Manukau Institute of Technology, from your youth leader at your church, and from the choir that you are a member of.  There is also a letter from a Youthline co-ordinator who says that you are an active member on the Pacific Youth Steering Committee and as such you work on projects promoting the health and well-being of people in Counties Manukau.  I accept that you at least have the potential to be a youth leader in your community.   Mr Mansfield stresses that there is no need to impose a sentence of imprisonment to deter you from future offending.   He submits that a sentence of imprisonment carries a stigma that is too great given your culpability and the criminality involved in your conduct.

[23]     If a sentence of imprisonment is imposed, Mr Mansfield submits that it would be appropriate that it be less than two  years  imprisonment,  that  you  should  be granted leave to apply for home detention and that the  commencement of  your sentence should be deferred.

[24]     For you Mr Toohill, Mrs Tuilotolava makes much the same submissions as those made by Mr Mansfield.  She points out that you remained in the car and to your evidence at the trial of your co-offenders, that you were shocked and stunned by what you saw of the attacks on the two victims.  She emphasises your remorse in relation to your offending, your guilty plea and the assistance you provided to the Crown.  As with Mr Mansfield, your counsel submits that a sentence of community work is within the range open to the Court.  She stresses that you are a first time offender.   She attaches references from an employer, the Chairman of the Rugby Football Club and a letter from your father.

[25]     Mr Viliamu, Mrs Tuilotolava for you points to your guilty plea and also to what she characterises as your less culpable role in the offending than those co- offenders who did not plead guilty.  In particular she says that you did not personally see the victims on the ground and only later learnt about the extent of injuries.  You had no hand in the beatings.  In relation to your pre-sentence report, she stresses that you do not maintain your innocence and that there must have been a miscommunication between you and the report writer.   She provides a letter from you in which you say that this was a one off, bad and stupid decision that will never happen again.  She attaches references for you from your parents, the club captain for your rugby team, from a referee who has been associated with you in rugby, from your church and from your employer.   Again she submits that a sentence of community work is appropriate.  She describes both you and Mr Toohill as the star sons  of  your  families.    Reverend  Lokeni  also  spoke  on  your  behalf  today  Mr Viliamu, but he really spoke for all three men.  He spoke of the love and support your families and community have for you.

[26]     All three of you have the support of your families and your community, representatives of whom are present in numbers to support you today and to show me that they are prepared to support you in the future.

[27]     In sentencing  you Mr  Salatielu,  Mr  Toohill  and  Mr  Viliamu  I take into account the purposes of sentencing set out in s 7 of the Sentencing Act.  I mention particularly in your case the need to hold each of you accountable for the harm done to the victims and the community by your offending, to denounce your conduct and

to  deter  you  and  others  from  similar  offending,  but  also  to  assist  in  your rehabilitation and reintegration.

[28]     I must also have regard to the need to ensure consistency in sentencing, which means that I must ensure that like offenders receive like sentences for like offending.  It is for this reason I must refer to case law in sentencing you.

[29]     The most helpful decision is R v Taueki [2005] 3 NZLR 372. That decision provides the sentencing range for the offence of causing grievous bodily harm with intent to cause grievous bodily harm. The Court of Appeal stated that the guidelines provided there could be applied by analogy to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty provided for it. As the maximum sentence for causing grievous bodily harm with intent to injure is half that of causing grievous bodily harm with intent to cause grievous bodily harm, I use as a rule of thumb that the tariffs suggested in Taueki are appropriately reduced by half.   But then from that general sentencing range I must select a starting point.

[30]     In the case of all of you I accept that the relevant aggravating factors are that the offences involved premeditation, extreme violence, the use of a weapon, attacks to the head of the victims and the infliction of serious injury.  Indeed, it was a matter of chance that neither victim died.  Mr Pio was placed on life support after suffering damage and fractures to his skull and was initially given a five percent chance of surviving.  The victim Mr Turia was placed in intensive care and his condition was also initially considered life threatening.  The attack on these individuals involved a large number of young men, estimated to be in the range of 20-40 people.  As the Crown submits the two victims were vulnerable when considered in this context; they were unarmed and outnumbered.  Finally, the offending occurred in the context of a dispute between two gangs.   These aggravating factors would on their face appear  to  place  you  in  band  3  of  Taueki,  involving  three  or  more  aggravating features where the combination of them is particularly grave.

[31]     However, as the Court of Appeal recognised in Taueki for some offenders, the band arrived at using the Taueki analysis may not properly reflect the criminality

involved in the offending or the culpability of the individual offender.  Indeed, the

Crown accepts that band 2 is appropriate in this case.

[32]     In my view the appropriate sentencing band in terms of Taueki is band 2, which when adjusted downward to take into account the lesser penalty for these offences than the offence in Taueki indicates a sentencing band of 2½-5 years.

[33]     In considering your culpability Mr Salatielu, I take into account that you took weapons  with  you  to  the  scene,  but  I accept  that  you  took  them  with  you  for protection.

[34]     Other features of your involvement relevant in fixing a starting point are that you sat in the car, and did not physically take part in any of the attacks on the property or persons in the area.  You were not a member of the JCB’s.  You were not part of the mob violence but were on the periphery of offending.  For these reasons, I fix a starting point before giving credit for mitigating factors of three years, two months.

[35]     There is much that can be said by way of mitigation.  There is your guilty plea for which I am minded to allow full credit.   There is also the fact that you provided  meaningful  assistance  to  the  Crown  and  I  accept  Mr  Mansfield’s submission that that was at considerable personal cost to yourself and potentially your family.  I also take into account your age at the time of the offending which was only 17 years.  Finally, I take into account your apparently previous good character.

[36]     I  have  given  careful  consideration  to  your  counsel’s  submission  that  a sentence of community work is appropriate taking into account all of these matters and in particular that there is little need for personal deterrence, given the low risk of reoffending.   However, the seriousness of the offending in which  you  involved yourself calls for a stern response.   The role that you and Mr Toohill played may have been relatively minor compared to that played by the principal offenders, but this was mob violence and mob violence cannot function without the participation of many who play their roles big or small.  And you both played your role.  The public interest in sending a clear message of deterrence and denunciation of such offending

is therefore determinative in favour of a sentence of imprisonment.  A sentence of imprisonment of 14 months is appropriate for  you Mr Salatielu which allows a discount  of  about  sixty  percent  for  mitigating  factors.    I  will  deal  with  home detention issues shortly.

[37]     Mr Toohill, I consider your position to be very comparable to that of Mr Salatielu.  You were not responsible for taking the weapons with you in the car, but you drove the car that took George Naea and Mr Viliamu to the scene and you waited for them there.   You did not get out of the car and participate in the gang violence  that  ensued.    Again,  you  were  not  a  member  of  the  JCB’s.    Your involvement is toward the lower end of culpability for this type of offending.  I also accept, as with Mr Salatielu, that mitigating factors are your early guilty plea, the assistance provided by you to the police in giving evidence, your youth and your good character.   I adopt the same starting point and make the same allowance for mitigating factors which gives a sentence of 14 months.   Again, I will deal with home detention issues shortly.

[38]     Mr Viliamu, your offending is in a different category.  You are more culpable than your co-offenders Mr Salatielu and Mr Toohill.  You got out of the car armed with a weapon.  You admit that you smashed a vehicle, although of course that is not what you have been charged and convicted of.  You chased after people in the area. Although not a direct participant in the assaults you were an active part of the mob.  I therefore adopt a starting point of three years, 10 months.  But then take into account mitigating factors.  You pleaded guilty during the course of trial, but as soon as the indictment was amended.  The Crown accepts that you should be given full credit for that.    I  also  accept  your  expressions  of  remorse,  and  I  accept  that  you  were previously of good character.  As with Mr Salatielu and Mr Toohill you are a first offender.  I also weigh the other matters raised by the Crown.  From a starting point of three years, ten months I propose to allow a substantial discount resulting in a finite sentence of two years, two months.

[39]   Mr Viliamu, on each count I sentence you to two years, two months imprisonment, both sentences to be served concurrently.  Stand down please.

[40]     Because I have imposed a sentence of two years or less on you Mr Salatielu and Mr Toohill  I must consider whether to  grant  you leave to apply for home detention.  In considering the issue I take into account the nature and seriousness of the offending, including the limited role each of you played in it.   I also take into account the fact that you are both very young men, who seem to have considerable promise, and could in future have much that is positive to offer your communities.  I grant you leave to apply for home detention.

[41]     Your counsel also make application that I defer the commencement of the sentence.  In terms of s 100 I may defer the start date of a sentence of imprisonment for  up  to  two  months  on  humanitarian  grounds,  or  if  leave  to  apply for  home detention has been granted and I am satisfied that exceptional circumstances justify deferral.   I find that the combination of your previous unblemished character, the circumstances and limited nature of your role in the offending, your potential for rehabilitation and your age combined amount to exceptional circumstances.

[42]     Mr Salatielu, Mr Toohill and Mr Viliamu please stand.  Mr Salatielu, on both counts I sentence you to 14 months imprisonment to be served concurrently.   Mr Toohill, on both counts I sentence you to one year, two months imprisonment to be served concurrently.  I grant you both leave to apply for home detention.  I defer the commencement of your sentence for two months, or the date on which your application for home detention is determined by the Parole Board, whichever is the sooner.

[43]     [Bail conditions dealt with.]

Winkelmann J