R v Faaleaga HC Auckland CRI-2009-092-20857 [2011] NZHC 326 (20 April 2011)

Last Updated: 1 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-092-20857}

THE QUEEN

v

_{FAALEAGA FAALEAGA}

Hearing: 20 April 2011

Counsel: AM Wharepouri for the Crown

T Saseve for the prisoner

Judgment: 20 April 2011

_{SENTENCING NOTES OF POTTER J}

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140 for the Crown

Mr T Saseve, P O Box 23555, Hunters Corner, Manukau 2155 for the Prisoner

R V FAALEAGA HC AK CRI-2009-092-20857 20 April 2011

[1] Mr Faaleaga, you have been convicted, following trial by jury, of one charge of threatening to kill, for which you must be sentenced today. That charge carries the maximum penalty of seven years imprisonment.

Factual background

[2] The factual background is this. While Mr Faaleaga was in prison on previous charges, he wrote a letter to his sister which contained a number of specific threats aimed at her children, the nieces and nephews of Mr Faaleaga. He apparently blamed his sister and her children for complaints of assault made against his brother.

[3] Relevant extracts from the letter written on 25 September 2009 are:

I have found out everything that your children said to Faatafa. That slut Rachel said that she would shoot Faatafa. Tell her that the next time I set foot there, I will shoot her with her gun, like she said she would [shoot Faatafa]. I promise you that I will never ever forgive what you and your prostitute and thieves of children did to Faatafa.

...

Tell your children to wait until I return. I will eat all of their hearts.

...

Tell your children to await my return. I will kill any of them to bring about what they keep telling Faatafa [they will do].

Pre-sentence report

[4] Mr Faaleaga is a 34 year old male of Samoan descent. He was brought up by his parents, together with his eight siblings, in Samoa. Mr Faaleaga stated to the probation officer that he was an “obedient child”, but left school at 15 to help on the family plantation. He was bestowed the matai title of Tuimauga. In 2004, he and his family moved to New Zealand. After his father passed away, he took over the leadership of his extended family. He reported a close relationship with his family, and that he has a partner of five years. He said he has no children.

[5] This offending occurred while Mr Faaleaga was in prison. He claimed that threats made against his younger brother by his nieces had made him angry and he had dealt with his anger by writing the letter to his sister making threats to shoot his nieces. He claimed he immediately regretted sending the letter and attempted to retrieve it from prison authorities but, he said, it had “already gone”.

[6] The report states that Mr Faaleaga appeared to genuinely regret his actions, and that his remorse was related to the emotional harm he had caused his family. He said that he “did not mean it” and that he had been angry. He voiced empathy towards the victims and stated that he had apologised to his sister on the telephone, and he claimed that she had expressed forgiveness.

[7] The report states that the most significant factor contributing to Mr Faaleaga’s offending is his propensity to use violence and being unable to manage his anger. The report writer considers that Mr Faaleaga demonstrated some insight into his inability to deal with his anger in a non-harmful way and noted that that he had attended an anger management programme in 2010. He is apparently currently engaged in a literacy and numeracy course which the probation officer recommends he complete prior to commencing any treatment programmes so that language barriers are reduced.

[8] In October 2009, Mr Faaleaga was sentenced to 11 years imprisonment on three charges of rape and one charge of abduction. He is currently serving this sentence and he was serving that sentence at the time he wrote the letter. He has a statutory release date of 4 February 2019 and eligibility for parole in October 2011. His criminal history, if any, prior to coming to New Zealand is not known.

[9] Mr Faaleaga is assessed at moderate risk of reoffending which may be reduced with intervention but the writer of the probation report assesses that the risk would be higher if he were in the community. His motivation to change is assessed as moderate.

Purposes and principles of sentencing

[10] Counsel have helpfully referred me to the relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act. Mr Faaleaga must be held accountable for the harm he has done to his victim and the community. The sentence must promote responsibility for, and acknowledgement of, that harm, and must denounce and deter such conduct by the prisoner and by those who would similarly offend.

[11] The Court must seek to achieve consistency with appropriate sentencing levels in similar cases and impose the least restrictive outcome that is appropriate in the circumstances.

Aggravating and mitigating factors

[12] I turn to consider aggravating and mitigating factors. There are no aggravating factors of the offending that are not represented in the offending itself as Mr Wharepouri, appearing for the Crown, has acknowledged. It is implicit in the jury verdict of guilty of the charge of threatening to kill, that the jury found that threats to kill were made and that the accused intended, when he made the threats, that they would be treated seriously by the person to whom they were made - his sister, Mrs Kome.

[13] As to mitigating factors of the offending, Mr Saseve, counsel for Mr Faaleaga, submits that Mr Faaleaga believed that Mrs Kome’s children had conspired to tell lies about his younger brother offending against them. Further, that he had learned that the eldest daughter had threatened to shoot Mr Faaleaga’s younger brother. I do not accept that submission. There is no proof of this conduct asserted by Mr Faaleaga in relation to his nieces. I do not accept it as a mitigating factor.

[14] An aggravating factor relating to Mr Faaleaga personally is that the offence was committed while he was serving a sentence of imprisonment.

[15] The Crown submits that the prisoner’s previous offending is an aggravating factor. The previous offending involved rape and abduction in 2007 and theft of property in 2006. While the offending in 2007 was serious, it was quite dissimilar from this offending and I do not consider it warrants any uplift in the starting point for sentencing.

[16] Mr Saseve submits that the remorse expressed by the prisoner is genuine and reference is made to Mr Faaleaga’s attempts to apologise to his sister. This was apparently by telephone. However, he made no attempt to convey his apology by other means, for example, by letter, whereas, he had written a detailed letter containing the threats to his sister. I consider some small reduction for expressed remorse is appropriate.

Sentencing

[17] The Crown submits a starting point of ten months imprisonment is appropriate, with an uplift of two months to take account of the previous convictions and that the offence was committed while serving a term of imprisonment. The Crown submits that the final sentence, in the range of 12 months imprisonment, should be cumulative on the sentence already being served.

[18] Mr Saseve proposes a starting point of six to nine months imprisonment. He seeks a discount for mitigating factors and that the end sentence be served concurrently.

[19] There is no tariff case for the offence of threatening to kill. I have considered the authorities referred to me by counsel and from my own researchers, including R v Forrest,[1] Forrest v Police[2] and R v Sykes.[3] All these cases involved offending considerably more serious than in this case. They resulted in final sentences of three years imprisonment, two years imprisonment and 16 months imprisonment, reduced

_{to eight months imprisonment for totality. In each case the sentence was made}

cumulative on previous sentences of imprisonment. These cases provide only limited guidance for sentencing here but it is relevant to note the observation of Woodhouse J in Sykes that the fact the prisoner would not have been able to carry out the threat immediately as he was in custody, does not detract from the severity of the offending because it is the threat itself which causes serious harm.

[20] I consider a starting point of ten months imprisonment to be appropriate to reflect the level of seriousness of this offending.

[21] I increase the starting point by one month because the offending occurred while Mr Faaleaga was already serving a sentence of imprisonment. I do not apply an uplift for his previous convictions.

[22] I consider Mr Faaleaga is entitled to some discount for remorse, accepted to be genuine by the probation officer and emphasised in submissions by Mr Saseve. I allow a discount of one month which I consider to be generous.

[23] The final sentence therefore is ten months imprisonment. That sentence is to be served cumulatively on the sentence of 11 years that Mr Faaleaga is currently serving. This offending was quite separate and distinct from the 2007 offending and, in those circumstances, a cumulative sentence is called for.

[24] Under s 85 of the Sentencing Act, the totality of the cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. The cumulative sentence results is 11 years and ten months imprisonment. I do not consider this sentence to be wholly out of proportion to the gravity of the overall offending. Please stand Mr Faaleaga.

Result

[25] The sentence imposed upon you, Mr Faaleaga, is ten months imprisonment which is to be cumulative on your current sentence of 11 years imprisonment.

_{[26] Please stand down.}

..........................................

Potter J

---

[1] _{R v Forrest CA90/06, 12 October 2006.}
[2] _{Forrest v Police HC Auckland CRI-2009-404-27, 11 May 2009.}
[3] R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.