Tafeaga v R
[2019] NZHC 261
•26 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-358
[2019] NZHC 261
BETWEEN RAYMOND TAFEAGA
Appellant
AND
THE QUEEN
Respondent
Hearing: 26 February 2019 Appearances:
S T Patia for the Appellant
R M Gibbs for the Respondent
Judgment:
26 February 2019
ORAL JUDGMENT OF GAULT J
Solicitors / Counsel:
Ms S T Patia, Barrister, Auckland, on instructions from Mr S Wimsett, Barrister, Auckland Ms R M Gibbs, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
TAFEAGA v R [2019] NZHC 261 [26 February 2019]
[1] Mr Tafeaga pleaded guilty following a sentence indication in the District Court, and on 8 October 2018 Judge A-M J Bouchier sentenced Mr Tafeaga as follows:1
1.assault with intent to injure – imprisonment of three years;
2.injuring with intent to injure – imprisonment of three-and-a-half years;
3.assault with intent to injure – imprisonment of three years;
4.threatening to kill – imprisonment of three years;
5.assault with intent to commit sexual violation – imprisonment of three- and-a-half years;
6.indecent assault – imprisonment of three-and-a-half years;
7.indecent assault – imprisonment of three-and-a-half years; and
8.excess breath alcohol – imprisonment of three months and disqualification from holding or obtaining a driver’s licence for six months.
[2]All periods of imprisonment were to be concurrent.
[3] Mr Tafeaga appeals on the grounds that the sentence of three-and-a-half years imprisonment was manifestly excessive or wrong in principle with no or insufficient discount given for the contents of a cultural report, compliance with restrictive bail conditions, youth and previous good character.
The facts
[4] The summary of facts records that at about 3:00 am on 30 September 2017 Mr Tafeaga, then aged 21, pulled up in his vehicle beside the 18 year old victim who was walking home and asked her what she was doing. They were not known to each
1 R v Tafeaga [2018] NZDC 24972.
other. He offered her a ride but she declined. He asked if she wanted to go for a drive. Again, she declined. Mr Tafaega then offered her some cannabis and said they could smoke it down the road. The victim agreed to go with Mr Tafeaga to smoke some cannabis.
[5] They drove to a school carpark where they sat for about five minutes. The victim asked Mr Tafeaga about the cannabis but he said he did not have any and then said to the victim “let’s fuck”. She told him that she thought they were there to smoke cannabis. She opened the door to get out but he reached over and pulled the door closed. He then locked the door.
[6] As the victim tried to unlock the door, Mr Tafeaga grabbed hold of her handbag and choked her with the strap, holding her in the seat. He continued to choke her with his left hand as he drove with his right. She was struggling to breathe and her face felt hot (charge 1 – assault with intent to injure). She was able to ask him to let go but she was unable to speak loudly or clearly. Mr Tafeaga told her to “shut up”.
[7] Mr Tafeaga was swerving over the road as the victim tried to pull away. She eventually let go of the strap around her neck because he was tightening it further. The car was travelling about 70 kilometres per hour. After turning left, Mr Tafeaga swerved up the curb and parked under a streetlight that was not working. He then let go of the strap around the victim’s neck. She unlocked the door and swung it open. As she was getting out of the car Mr Tafeaga grabbed her sleeve. She struggled, trying to get away from him and the car. As the struggle continued, Mr Tafeaga was dragged out of the passenger door. Once he was out of the door he jumped on top of the victim and started punching her. She lay on her back on the ground and he straddled her waist, punching her with both hands to her head multiple times (charge 2 – injuring with intent to injure).
[8] The victim managed to get off the ground, but Mr Tafeaga grabbed her hair and forcefully threw her to the ground again. He then jumped on top of her and used his forearm to choke her for about two minutes. She could not breathe during this time (charge 3 – assault with intent to injure).
[9] Mr Tafeaga used his hand to cover the victim’s nose and mouth to prevent her from screaming. He told her to “shut up” or he would kill her (charge 4 – threatening to kill). She nodded to him, indicating that she would stop. He then grabbed her jacket and again tried to get her into his car. When he ran around to the driver’s side, she tried to run away to a friend’s house. Mr Tafeaga chased her and tackled her to the ground (charge 5 – assault with intent to commit sexual violation). He pressed his forearm into her neck and again choked her, covering her mouth with his hand. She screamed for help and tried to fight him off. He then put his hand down her trousers, underneath her underpants. She could feel him touching the top of her vagina (charge 6 – indecent assault).
[10] While Mr Tafeaga was touching her, her phone rang. Mr Tafeaga took his hand out of her trousers and grabbed the phone which was hidden inside her bra. He then forced his tongue inside her mouth for about 10 seconds (charge 7 – indecent assault).
[11] The victim eventually managed to escape and ran to a nearby house. The police, who had been called by nearby residents who had witnessed part of the assault, arrived soon after at about 4:40 am. Mr Tafeaga’s vehicle was stopped a short time later. He was exhibiting signs of recent alcohol consumption. Evidential breath testing procedures were carried out at about 5:46 am. Mr Tafeaga’s breath was found to contain 485 micrograms of alcohol per litre of breath (charge 8 – driving with excess breath alcohol).
[12] The victim was medically examined after the incident. The physical findings in summary were:
(a)multiple bruises/red marks/abrasions/areas of tenderness over scalp, forehead and face;
(b)bruising and abrasions in mouth;
(c)tender red marks on her neck;
(d)multiple abrasions on lower arms with tenderness and bruising; and
(e)large tender bruise with swelling on right lower leg.
The sentence
[13] The Judge considered that the starting point for the charges with the most serious maximum penalties should be five years’ imprisonment having regard to the aggravating features of premeditation, actual and threatened violence including an element of detention, repeated choking, punches to the head and sexual assaults, the harm resulting, and the vulnerability of the complainant. There were no mitigating features of the offending.
[14] The Judge accepted there should be a 25 per cent discount for Mr Tafaega’s early guilty plea. The Judge assessed discounts for youth of five per cent, previous good character of five per cent, and no other discounts.
[15] That brought the sentence, with the discounts, to three-and-a-half years’ imprisonment on the most serious charges.
[16] Between the sentencing indication and the sentencing, the Judge received a cultural report as well as a pre-sentence report. The Judge did not consider there to be any matters which changed the sentence indication or discounts given.
The arguments on appeal
[17] Ms Patia, for the appellant, accepted the starting point of five years’ imprisonment. However, she submitted that:
(a)a discount should have been given for factors identified in the cultural report;
(b)insufficient discount was given for Mr Tafeaga’s youth; and
(c)a discount of five per cent should have been given for compliance with restrictive bail conditions.
[18] Ms Patia submitted that Mr Tafeaga’s youth and cultural factors should have been considered together and a combined discount given.
[19] The respondent submitted that the discounts given were appropriate, and there was no linkage here between the offending and the matters raised in the cultural report to support a further discount for cultural factors. While a modest discount for restrictive bail conditions may have been available, its absence did not amount to an error or make the sentence manifestly excessive.
Decision
[20] I consider the Judge rightly identified the starting point for the offending as being five years’ imprisonment. The respondent submitted this was towards the lower end of the scale by reference to Ross v R, where a starting point of five-and-a-half years was considered appropriate.2 Despite other similarities, that case was identified as being very close to actual rape.
[21] Turning to mitigating factors relevant to Mr Tafeaga, the combined effect of the discounts given by the Judge was 10 per cent (five for youth and five for previous good character). No further discount was given for cultural factors or restrictive bail conditions.
[22] Mr Tafeaga was 21 at the time of the offences, which is getting towards the higher end of the age range for which a youth discount is applicable. The corollary is that previous good character may become more relevant through adulthood. I note Ms Patia’s submission that in his Samoan context, living at home, he is still young. The combined discount of 10 per cent may have been on the low side but I do not consider it outside the range.
[23] The court received a cultural report explaining Mr Tafeaga’s personal, family, whanau, community, and cultural background, and the way in which that background may have related to the commission of the offence. The report explains that Mr Tafeaga was born and raised in Samoa. His father is a matai, one who is bestowed
2 Ross v R [2013] NZCA 263.
with a title or chiefly name. When his parents moved to New Zealand, he stayed in Samoa with relatives for several years before coming to New Zealand himself at age
18. At High School in Samoa Mr Tafeaga was assaulted by senior students and received a serious injury from being punched in the mouth with a cork screw, leaving permanent scaring.
[24] The report states that in Apia Mr Tafeaga fell into bad company and was introduced to alcohol and smoking, including marijuana. His relatives were worried, and his parents arranged for him to move to New Zealand. Mr Tafeaga showed academic potential, but his tertiary studies were short-lived as he was required to contribute to family income. There were also severe beatings when his parents tried to curb his smoking. The report also refers to strict religious expectations.
[25] Personal, family, whanau, community, and cultural background can be relevant as a factor mitigating culpability, but there must be a linkage between the matters raised in a cultural report and the offending.3 I agree with counsel for the respondent that this case does not involve the strong linkage with the offending that existed in Solicitor-General v Heta.4 However, the report does say that the abuse Mr Tafeaga received at High School appears to be where he learnt how to respond to violence and how to become violent. The report also states that the school and his family failed to support him. Together, the report concludes, these life events likely led to Mr Tafeaga’s poor decision-making skills. The report though does not explain a linkage between Mr Tafeaga’s background and the sexual nature of his offending.
[26] In these circumstances, I consider that it was open to the Judge not to give Mr Tafeaga a further discount on account of his background, either as a discrete discount or as part of a larger discount combining youth and cultural factors.
[27] The Judge referred to a possible discount for restrictive bail conditions in her sentencing remarks but in the end did not, at least specifically, come back to it. Mr Tafeaga spent eight-and-a-half months on bail with a 24 hour curfew condition before he was remanded in custody following acceptance of the sentence indication.
3 Solicitor-General v Heta [2018] NZHC 2453 at [50].
4 Solicitor-General v Heta, above n 3.
This is a significant burden on a 21 year old defendant. Ms Patia told me that Mr Tafeaga’s daughter was born during this period. No breaches of bail conditions were recorded. I consider a discount of three months should have been given for Mr Tafeaga’s restrictive bail conditions.
[28] In combination, I consider that Mr Tafeaga’s mitigating circumstances warranted a combined discount of nine months, before the 25 per cent discount for the early guilty plea, resulting in an appropriate sentence of three years and two months’ imprisonment.
Result
[29] The appeal against sentence is allowed, the sentences of three-and-a-half years’ imprisonment on the most serious charges are quashed,5 and sentences of three years and two months’ imprisonment are imposed. In all other respects the sentences stand.
Gault J
5 Charges 2, 5, 6 and 7.
3