Tapaevalu v R - [2021] NZSC 26

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 113/2020
[2021] NZSC 26

BETWEEN	FISILAU TAPAEVALU Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	J‑A Kincade QC for Applicant F R J Sinclair for Respondent
Judgment:	18 March 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

After a jury trial in the High Court at Auckland, the applicant, Fisilau Tapaevalu, was convicted on charges of murder and attempted murder, along with Mesui Tufui. On the murder charge, the applicant was sentenced to life imprisonment with a minimum term of imprisonment of 17 years.[1] The applicant appealed unsuccessfully to the Court of Appeal against sentence and now seeks leave to appeal to this Court.[2]

Background

[1]R v Tapaevalu [2019] NZHC 1867 (Lang J) [Sentencing remarks].

[2]Tufui v R [2020] NZCA 568 (Courtney, Wylie and Muir JJ) [CA judgment]. The Court of Appeal also dismissed Mr Tufui’s appeal against conviction. His application for leave to appeal to this Court against conviction is the subject of a separate judgment being delivered at the same time: Tufui v R [2021] NZSC 25.

As is explained in the judgment relating to Mr Tufui’s application for leave to appeal, the murder charge arose out of the shooting, in the early hours of the morning of 1 May 2018, of Abraham Tu’uheava. Mr Tu’uheava died having been shot a number of times by Viliami Taani. The attempted murder charge arose out of the shooting of Yolanda Tu’uheava, Mr Tu’uheava’s wife. Mrs Tu’uheava was shot twice in the head and twice in the arm, but survived. Mr Taani pleaded guilty to the murder of Mr Tu’uheava and to the attempted murder of Mrs Tu’uheava. The applicant and Mr Tufui pleaded not guilty and were tried together.[3]
[3]The applicant pleaded guilty to two charges of being in possession of methamphetamine for supply and two charges of being in unlawful possession of firearms (the weapons used in the shooting): Sentencing remarks, above n 1, at [3]. The weapons had been hidden in a shed after the incident.
In her evidence at trial, Mrs Tu’uheava described the man who shot her husband and shot her in the head as “the main guy”. There was no dispute that this man was Mr Taani. Mrs Tu’uheava referred to the man who shot her in the arm as “the younger guy”. On the Crown case, Mr Tufui was the younger guy and the applicant was the driver of the car in which the three men travelled to the location of the shooting.[4]
[4]The three men are cousins. Mr Taani was a patched member of the Comanchero Motorcycle Club and the applicant was associated with that gang. All three men and Mr Tu’uheava had varying degrees of involvement in drug dealing.
In sentencing Mr Taani, Hinton J found that s 104 of the Sentencing Act 2002 applied.[5] That section requires the court to impose…

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 Tapaevalu v R

Details

AGLC: Tapaevalu v R [2021] NZSC 26
Case: [2021] NZSC 26
Decision Date: 18 March 2021

CaseChat Overview and Summary

Fisilau Tapaevalu sought leave to appeal against his conviction for murder and attempted murder, and the sentence imposed on him by the High Court at Auckland. The appeal was dismissed by the Supreme Court of New Zealand. The applicant argued that the sentence imposed was manifestly excessive, and that the Court of Appeal did not consider parity of cases. The court found that the applicant's culpability warranted the minimum term of 17 years imposed, and that there were no grounds for leave to appeal. The court held that the applicant's role as the driver of the car in which the three men travelled to the location of the shooting, and his continued involvement even after it was clear that serious violence would occur, warranted the sentence imposed. The court also found that the Court of Appeal's assessment of the factual circumstances and relative culpabilities was not open to question.
The Supreme Court of New Zealand dismissed the applicant's application for leave to appeal. The court found that the sentence imposed was appropriate given the applicant's role in the offending, and that there were no grounds for leave to appeal. The court held that the applicant's culpability warranted the minimum term of 17 years imposed, and that the Court of Appeal's assessment of the factual circumstances and relative culpabilities was not open to question. The court found that the applicant's role as the driver of the car in which the three men travelled to the location of the shooting, and his continued involvement even after it was clear that serious violence would occur, warranted the sentence imposed.

Orders