R v Feauai [2012] NZHC 171 (16 February 2012)

Last Updated: 13 March 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-13230 [2012] NZHC 171

THE QUEEN

v

MASEIGA FEAUAI AND WILLIAM OFISA

Hearing: 16 February 2012

Counsel: N Webby for Crown

L Hughes for Accused Feauai

J Boyack and D Niven for Accused Ofisa

Judgment: 16 February 2012

_{SENTENCING NOTES OF TOOGOOD J}

Solicitors:

N Webby, Meredith Connell, Auckland: [e-mail]

L Hughes, Auckland: [e-mail]

J Boyak, Auckland: [e-mail]

D Niven, Auckland: [e-mail]

R V FEAUAI AND OFISA HC AK CRI-2010-092-13230 [16 February 2012]

[1] Maseiga Feauai and William Ofisa: you appear for sentence having pleaded guilty to the manslaughter of Michael Ofisa, in that in August 2010, you caused Michael’s death by assaulting him using a motor vehicle as a weapon.

[2] The way in which the charge is quite properly expressed is somewhat misleading as to the tragic circumstances of this case in which the vehicle driven by you, Mr Ofisa, ran over Michael, your older brother, killing him. I accept at once that your purpose was not to cause Michael harm but to assist him and that in that sense his death was a terrible accident. The unlawfulness of the event, however, comes from your intention of driving the motor vehicle at speed, encouraged by you Mr Feauai, towards a group of other people. That amounted in law to an assault by, at the very least, the threatened application of force.

[3] I want to make it clear that in discussing the facts I am using the amended summary handed up at the time of the sentencing indication and not the summaries attached to the pre-sentence reports.

[4] The circumstances were that, after or during a party, Michael was being attacked by around 15 people, some of whom were using weapons such as bottles and fence palings or pieces of wood. The summary of facts satisfies me that the extent of the attack was such that it was inevitable that Michael would suffer serious injury and was at risk of being killed. In attempting to assist Michael to defend himself from these attacks you, Mr Ofisa, then aged only 16, drove a motor vehicle at the crowd of attackers at a speed which you estimated at around 60 kilometres an hour.

[5] You were then aged 24, Mr Feauai. You were a passenger in the car and you admitted later that you had encouraged Mr Ofisa on one occasion to drive the vehicle at the crowd as a way of rescuing Michael. I understand it is said that William did not hear that encouragement, but you have admitted that it was given.

[6] As the car advanced towards the attackers and the place where Michael was being beaten, the crowd dispersed and the car drove over Michael, killing him almost

immediately. The degree of hostility and the violence of the attackers is emphasised by the fact that some of them returned to continue the attack on Michael, notwithstanding that he had been run over.

[7] Both of you initially pleaded not guilty to the charges brought against you, but on the morning the trial was due to begin, and before a jury was empanelled, I received an indication from counsel that there had been discussions about changes of plea. I was asked to consider whether I would give a sentence indication as a way of assisting counsel for the Crown and for you to make appropriate decisions as to how the case should be disposed of. Having regard to what I considered to be the exceptional circumstances of this case, I agreed to give a sentencing indication.

[8] In doing so I observed that at that time, November last year, this Court had not habitually adopted a practice of giving sentencing indications, notwithstanding that the practice had been followed in the District Court for some time, and with some measure of success in terms of the proper administration of justice. I was mindful, however, of the provisions of the Criminal Procedure Act 2011, sections 60 to 65, which had been enacted but were not then in force. When brought into effect next month, they will provide a formal protocol for the giving of sentence indications by the Judges of this Court.

[9] I then received helpful written and oral submissions from counsel for the Crown and for you, and gave an indication as to what I considered to be appropriate penalties to be imposed in the event that either or both of you should plead guilty at that point. The remarks I now make, following from the guilty pleas which were entered almost immediately following my indication, reflect the views I expressed then and the additional material which I have received. The additional material has reinforced the views I expressed earlier as to the appropriate sentencing outcomes.

[10] In sentencing you, I will first consider the circumstances of the offending to determine an appropriate starting point for my assessment, before going on to consider what personal factors should be taken into account, and then look at factors such as remorse and your guilty pleas, to arrive at an appropriate end point which is the sentence to be imposed on each of you.

[11] I propose to deal with each of you in turn, beginning with you Mr Ofisa. I accept the submission for the Crown that what occurred here would not be properly categorised merely as a serious driving offence. This is a case in which a motor vehicle, an inherently dangerous object, was used as a weapon with the intention of inflicting force or, at the very least, threatening to inflict force on a crowd of people.

[12] Taking into account the penalties imposed in other similar cases,[1] I regard a term of imprisonment of between 5 and 6 years as the first step in determining the appropriate starting point based on the seriousness of the offending, which is the appropriate sentence for offending by an adult offender after a defended trial.

[13] I consider it to be an aggravating feature that you were not the holder of a driver’s licence and that you drove at high speed towards a group of persons any one of whom could have been seriously injured, if not killed, had they been struck by the vehicle.

[14] On the other hand, I consider it to be a mitigating factor that your brother was being attacked by a large group of people, using weapons with a considerable degree of violence, which included acting violently towards your vehicle and causing broken windows and other damage. While the use of the motor vehicle by you in this way is inexcusable and deplorable, I am also mindful of the hopelessness of the situation in the sense that it may not have been possible for Mr Feauai and you to have done anything practical to help Michael on your own.

[15] It is significant, in my view, that there were bystanders who might have wanted to assist Michael also, but were unable to do so until very late in the piece. I take into account the fact, therefore, that the attackers were the aggressors. It is indicative of the extent of their violent intentions that they continued to attack

_{Michael after he had been run over.}

[16] Allowing for those mitigating factors, therefore, I consider the starting point in relation to the offending itself to be a term of imprisonment for three years, bearing in mind the defensive nature of your actions and the other factors.

[17] Turning to your personal circumstances, I do not consider your previous convictions to be an aggravating factor in this case. There are no other aggravating personal circumstances, but there are a number of mitigating factors.

[18] The pre-sentence report indicates that you are now aged 18 years. You live with your mother and two sisters. Although you have now parted from the mother of your two children, you remain in regular contact with her and with your youngest son who is only a few months old. You are currently unemployed and receiving a domestic purposes benefit because you are responsible for the full-time care of your two year-old son.

[19] There is no evidence that you are abusive of alcohol or drugs and you are said to be in good health. In respect of previous offending you are two-thirds of the way through completing a sentence of 100 hours community work and that is to your credit. You have also complied with the conditions of the sentence of nine months’ supervision which is due to end in June of this year. Although you have been guilty of minor violence in the past, there is no evidence that you are likely to reoffend in a violent manner.

[20] This is a case in which I accept, on the basis of counsel’s submissions and the material contained in the pre-sentence report, a considerable degree of remorse on your part. Mr Boyack has earlier spoken eloquently about that. I understand that you have not yet been able to forgive yourself for Michael’s death and you may never do that. But you are continuing to seek your brother’s forgiveness and you have the forgiveness of your family. The degree of remorse which you feel is reflected in your guilty plea. Although you did not plead guilty at the first opportunity, you saved the Crown and the witnesses the expense and inconvenience of a three-week trial. Importantly I accept that there are circumstances indicating that you were willing to acknowledge your guilt at a much earlier stage than the commencement of the trial.

[21] The Crown has suggested that a discount in the order of 10 to 15 percent should be allowed to take account of your plea. That is approximately five-and-a- half months. Taking account of the special remorse factor which applies here I consider a total discount of nine months should be applied for your plea and remorse.

[22] I also take into account in your case, Mr Ofisa, that you were only 16 at the time of this offending. I am mindful of the significance to be attached to your youth and I refer particularly to the discussion by the Court of Appeal in Churchward v R[2] of a report received from a Dr Chaplow. That report discussed adolescent brain development and referred to diminished decision-making ability among adolescents in what Dr Chaplow described as “real-life coercive situations”, of which this undoubtedly was one.

[23] In his report, Dr Chaplow pointed to several key characteristics of adolescence which are recognised by developmental psychology research: deficiencies in decision-making and ability; greater vulnerability to external coercion; and the relatively unformed nature of the adolescent character. He indicated that substantial research also supported the view that adolescents have a diminished ability to control impulsive behaviour, the findings suggesting that adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to the consequences of immediate risk. The Court of Appeal observed that this was not because adolescents are less knowledgeable about risks, but because they attach different values. I regard a discount of a further nine months to be appropriate on account of your age. That would result in an end sentence of 18 months’ imprisonment. That makes you eligible for home detention and I am satisfied that the factors which would make imprisonment an appropriate sentence can be adequately addressed by that sentence. It is not a soft option, but it would enable you to care for your son.

[24] The report indicates you are considered suitable for home detention and that you would continue to live with your mother and sisters.

[25] In determining the appropriate length of the home detention, I take into account that on a sentence of 18 months’ imprisonment you would be eligible for parole after nine months. I also take into account that, pending trial and after you entered your guilty plea, you were granted bail on conditions which involved an overnight curfew which represented some limitation upon your freedom. In those circumstances, I consider a period of eight months’ home detention, with special conditions, to be appropriate.

[26] These additional conditions which I propose to impose will, in my view, reduce the likelihood of further offending on your part by assisting with your rehabilitation. I will direct judicial monitoring, which means that I will be kept informed of your progress and that any failure on your part to comply with the terms of your sentence may result in the sentence of home detention being cancelled or varied. I trust that that will not occur.

[27] Mr Ofisa, please stand. You will serve a term of eight months’ home detention. You will leave the Court and travel directly to 73B Park Avenue, Papatoetoe, and there await the arrival of the supervising probation officer and the electronic monitoring company. You will reside at 73B Park Avenue, Papatoetoe, for the duration of your home detention.

[28] The special conditions imposed will be, first, that you undertake a psychological assessment and, if required, attend, participate in and complete any psychological treatment, counselling and/or other programme as recommended in the psychological assessment, to the satisfaction of the service provider and the probation officer. You will abstain from the consumption of alcohol and/or illicit drugs for the duration of the home detention, and you will be subject to judicial monitoring under s 80ZJ of the Sentencing Act 2002.

[29] Mr Feauai: the general circumstances of the offending in this case apply also to you in that this was violent offending which had the aggravating factor of the use of a dangerous object, but one in respect of which there were mitigating circumstances in the degree of violence carried out by the mob who attacked Michael Ofisa and your albeit misguided attempt with William to assist him. Your

part in the offending was to encourage Mr Ofisa to use the vehicle in that way. At the time you were aged 24 years and it was wholly wrong of you to encourage a 16 year-old unlicensed driver to behave in this manner.

[30] Taking into account that you were not the driver of the vehicle, and bearing in mind the mitigating factors I have mentioned, I consider that an appropriate starting point in terms of the offending would be one of two years’ imprisonment.

[31] I take account, however, of your genuine remorse and your guilty plea. On that basis, and allowing the nine months discount afforded to Mr Ofisa for those factors, a term of imprisonment of 15 months would have been appropriate. You would have been eligible for parole after seven-and-a-half months, however, you were in custody for a period of some 12 months prior to entering your guilty plea. On that basis, and the sentence indication I then gave, I ordered your immediate release pending sentence once you had pleaded guilty.

[32] Mr Feauai, please stand. The sentence which I impose is one of 15 months’ imprisonment but bearing in mind the provisions of the Parole Act 2002 and your eligibility for early parole and the time served, you will not serve any further period of imprisonment and will be released immediately the paperwork is completed. You may sit down.

[33] As an addendum to my remarks on sentencing, I add that I have considered whether or not it would be possible for me to remit the outstanding fines and enforcement expenses which you face. In Mr Ofisa’s case it is only $100, but Mr Feauai you owe something close to $3,000 in fines and enforcement costs.

[34] I have considered whether there is jurisdiction for me to remit those fines and costs, notwithstanding that I am sentencing you on matters other than those giving rise to them. I am aware that that is done from time to time by Judges in this Court and I have looked at the authorities. With respect to the views of other Judges, I am not satisfied that I have jurisdiction to do what I would wish to do, which is to enable you both to start from here with a clean slate. It seems to me that the power to remit the fines exists with the District Court under s 88 of the Summary Proceedings Act.

My concern is that if I made what I considered to be appropriate orders without jurisdiction, the orders would not be given proper effect in the system and there could be unfortunate consequences.

[35] After hearing from Ms Hughes, I think the better course is to encourage you, through Ms Hughes, to make an immediate application under s 88 of the Summary Proceedings Act 1957 to remit all fines. While it will be for the Judge dealing with the application to decide whether all or any part of the fines should be remitted, I can indicate that I would be prepared to do so both on the basis that you deserve to make a clean start, and also that you have been in prison for a longer period than would otherwise have been the case had you been sentenced earlier to what I consider to be

an appropriate term of imprisonment.[3]

[36] I direct the Registrar to make a copy of these notes available to Ms Hughes so that she may put them before the Judge hearing any application for remission of fines and costs.

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

_{Toogood J}

---

[1] R v Tauira HC Auckland CRI-2006-092-11737, 19 June 2009; R v Purcell HC Auckland CRI-2008-

092-7177, 21 October 2010.

[2] Churchward v R [2011] NZCA 531

[3] I add as a comment, not made in Court at the time of this sentencing, that given the period of

15 months’ imprisonment, Mr Feauai would have been eligible for home detention and I would have been inclined to consider that favourably.