R v Faletolu [2014] NZHC 2218 (12 September 2014)

Last Updated: 25 September 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-009-2140 [2014] NZHC 2218

THE QUEEN

v

_{TAELE VICTOR FALETOLU}

Hearing:	12 September 2014
Appearances:	AMS Williams for Crown B Ayrey and D Matthews for Prisoner
Judgment:	12 September 2014

_{SENTENCING NOTES OF DUNNINGHAM J}

[1] Taele Victor Faletolu, you are for sentence today, having pleaded guilty on

22 May 2014 to a charge of manslaughter.

[2] Now the events which gave rise to this charge began on the evening of Saturday 1 March 2014. On that night members of the Samoan community, including your victim Utopu (or Alfred) Waterhouse, along with his wife and some female associates, attended a fund raising dance at the New Brighton hall at Christchurch. You also attended that dance.

[3] The dance finished at about 1.30 am on the morning of Sunday 2 March. A group of about 30 people congregated outside in the car park of the hall as people were leaving and, within that group, some of the females began fighting amongst themselves. A female known to Mr Waterhouse was amongst this group. Mr Waterhouse walked over to assist her and a fight developed between some of his

_{male associates and some of the other males nearby. The fight between the males}

R v FALETOLU [2014] NZHC 2218 [12 September 2014]

finished, however the females who had previously began fighting, began fighting again.

[4] Now while Mr Waterhouse was standing near these females, you ran towards him, jumping on top of the bonnet of a parked vehicle nearby and, while still moving forwards, you leapt off the car into the air towards the victim and you kneed or kicked him in the head as you jumped to the ground. Your victim immediately fell heavily onto the footpath where he lay unconscious. There were a number of people standing in the car park who witnessed this assault. You then ran off towards the hall but you were chased by two of the victim’s associates and detained.

[5] Your victim suffered a serious head injury involving a bleed on the brain. Although he received intensive medical care, he ultimately died at Christchurch hospital on 9 March 2014. The cause of death was as a result of a blunt force head injury, almost certainly caused by his fall, which, despite surgical intervention, had resulted in ongoing and irremediable brain swelling.

[6] It is clear from the victim impact statements that we have heard today that the death of Mr Waterhouse has had a huge impact on his family. We have heard from Mr Waterhouse’s young wife, who now, at the age of 22 is left to bring up her two young daughters. She says her husband was a hardworking husband and father who loved his children very much. They had plans to go to Samoa at the end of the year and Mr Waterhouse was saving very hard for that. However, those dreams have been taken away and life will not be the same for her. She and the children miss their husband and father deeply and she says “I want you to know that no amount of money or words of apology or time you spend in jail will ever be enough. The fact is that your actions have changed our lives. You took away Alfred’s chance to realise his dreams and see his children growing up”. She does not feel able to forgive you.

[7] There have been victim impact statements also from Mr Waterhouse’s two brothers, Herbert and Perkins Waterhouse. For Mr Perkins Waterhouse, his brother’s death has changed the way he views the world. It put him through emotional and financial strain, including on his marriage. He misses his brother and all the interaction and wealth of experience that a brotherly relationship brings. For

Mr Herbert Waterhouse, he is hurt that a peaceful, non-violent person was taken the way he was. He says he has lost his best friend and a beautiful soul in their family, and he wants justice to be served for his brother.

[8] Mr Waterhouse’s father Reverend Waterhouse, also prepared a victim impact statement and he spoke not just of the grief of the loss of a son, but the added heartbreak of it coming so close after the death of his wife. He said that the pain he and his family have will never heal and nothing will replace his son. But he also had the courage and bigness of heart to offer his prayers and thoughts for you.

[9] I turn now to your circumstances.

Pre sentence report

[10] The pre-sentence report records that you have no prior convictions and you have expressed remorse both in writing and today in Court. The report records that you are a first time offender. You do not have any needs that require immediate addressing, but you do recognise that your weekend drinking had been excessive and you must moderate your alcohol use in the future.

[11] I really can do no better than read the summary in that report. It says:

This is a tragic case. Mr Faletolu is a first time offender, who is otherwise leading a productive life in our community. He has a job, goes to church, has a girlfriend and lives in a warm supportive family environment. However, he killed a man through his reckless violence. Because of the grave consequences to the victim, and to the victim’s family and friends, and the need to denunciate this type of behaviour, a prison sentence is recommended.

[12] You also have character references which are very positive. Mr Warren, your employer of 14 months, stated that you “have proved to be a quiet and conscientious worker” and you were being trained for a new job, for which you had shown aptitude.

[13] Reverend Fili Sia Matalavea, your Parish Minister of 20 years, also provided a character reference. And he says you “are a young man of integrity, honesty, and with great talents.”

[14] Sifuiva Malaea Lauano, the principal of Leifiifi College, provides a reference which records that you were above average academically, you were a school prefect, reliable and supportive. Mr Lauano states that you are “a well recommended student”.

[15] There are also character references from work colleagues, your aunt and your girlfriend. They all attest to your good character and your aunt says that you have “shown remorse and regret” for your actions and “has expressed on many occasions that he would do anything to change this and is sorry for the impact this has had on the victim’s family and friends”. I can only say there is no doubt that this tragedy has shattered both your families, and that you are both good families, with strong values and strong Christian beliefs who are strangers to this Courtroom. That is a tragedy.

[16] So I turn now to sentencing.

Approach to Sentencing

[17] In sentencing you today, I must take into account the various purposes of sentencing and in particular, in this case I need to have regard to:

(a) promoting in you a sense of responsibility for, and an acknowledgement of the harm you have caused;

(b) denouncing the conduct with which you were engaged;

(c) deterring you and other individuals from committing a similar offence;

(d) but also assisting with your rehabilitation and reintegration.

[18] I also have to reflect the principles of the Sentencing Act in the sentence that

I finally impose. And I have to take into account, here in particular:

(a) the gravity of the offending including the degree of your culpability;

(b) I have to be consistent with sentences imposed on similar offenders committing similar offences.

(c) I must consider the effect of your offending on the victim; and

(d) I must also take into account the least restrictive outcome that is appropriate in the circumstances.

[19] Now the Crown has outlined submissions saying that the case of R v Taueki,¹ is relevant, and that is a case which sets general bands for the length of sentence to be imposed for various categories of violent offending. The Crown says the circumstances of your offending are very similar to the facts in a case of R v Tai,² which I will discuss shortly. They also refer to the case in Turi v R,³ a recent Court of Appeal decision. On the basis of those cases they say this case falls squarely

within what they describe as Band 2 of Taueki and that appropriate starting point is six to seven years imprisonment. However, the Crown also acknowledges that discounts should be made to the sentence for your early guilty plea and your good character.

[20] Your lawyer submits that this is a classic case of a one punch or one blow manslaughter offence and that the Crown’s reliance on cases such as R v Jamieson,⁴ and R v Tai, is ill-founded. Your lawyer compares your circumstances with the case in Ioata v R,⁵ and says that the appropriate starting point is between three and a half and four years imprisonment. In suggesting the starting point, your lawyer sees no basis to draw a distinction between a “one punch” case such as in Ioata, and a “one kick” case such as in your case.

[21] Your lawyer then also contends for a discount of up to 50 per cent which would make you eligible for home detention from her starting point and she strongly

_{advocates for that.}

¹ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.}

² _{R v Tai [2010] NZCA 598}

³ _{Turi v R [2014] NZCA 254.}

⁴ _{R v Jamieson [2009] NZCA 555.}

⁵ Ioata v R [2013] NZCA 235.

The Starting Point

[22] In light of those varying considerations I now turn to discuss the sentence I should impose in this case. I begin with saying that there is no tariff, or guideline case for manslaughter in New Zealand. And this recognises that the circumstances in which a person can be killed can vary so significantly in terms of their culpability, that the Courts in New Zealand have shied away from setting specific guidelines for sentencing.

[23] That said, when serious violence is involved, the guideline decision in Taueki, can be of some assistance in setting what we call the starting point and then, as was said in the case of Tai, I should also refer to comparable manslaughter sentencing cases to provide a check on whether my starting point is appropriate.

[24] So to set the starting point, I look at the aggravating and mitigating features of your offending. In this case I consider the aggravating features of this offending are:

(a) First that the level of violence used was significant. You deliberately ran up on to the bonnet of the car and jumped off at your victim. It is clear that this gave you both the advantage of gravity and acceleration to more forcibly strike your victim than if it had been a punch or kick administered from a static or standing position. In my view this makes it a marginally more significant assault than is involved in many of the single punch category of cases and the starting point ought to reflect this.

(b) The second aggravating feature in my view is the resulting harm and loss. There can be no doubt that the fact your victim died, with all the adverse impacts that has had on his immediate and extended family, means the resulting harm and loss is great.

(c) The third aggravating feature is the vulnerability of your victim. It is clear that at the time of your attack your victim was not in a position to see your attack coming and thereby defend himself. It is

undoubtedly because he was caught by surprise that he fell heavily and awkwardly resulting in the head injury which caused his death.

[25] In terms of any mitigating factors of the offending I am not satisfied that there are any. Although your actions came in the context of the broader fight between the parties, at the time you launched your attack on Mr Waterhouse, the fight between the males of the group had come to an end, so it could not be argued there was any mitigating circumstance such as provocation.

[26] In my view, this case is similar to the decision in Ioata v R, which involved the victim being violently hit in the side of the head from behind fracturing his skull and knocking him to the ground causing death, and also to the decision in Murray v R,⁶ where there had been a fight between the offender’s associates and the victim and the offender and the victim broke away, at which point the offender suddenly punched him in the side of the head leading him to fall and strike his head on the pavement.

[27] In both of those cases the starting point was five years. I think in this case a slightly higher starting point should be adopted because I see the running and jumping type attack which you launched on your victim as being more serious, and more obviously likely to injure someone by knocking them to the ground, than a straight forward punch or hit. There is also the fact that your victim neither provoked nor expected this attack. However, I do see this case as falling below a case such as R v Tai, where both a punch and a kick were administered to the victim, and where the starting point on appeal was seven years.

[28] Having looked at the aggravating and mitigating features of the offence, I now need to look at you as an offender and determine what are the factors relating to your circumstances which justify adjusting the starting point which I ultimately fix up, or down.

[29] There can be little doubt that the entry of the early guilty plea occurred in this case and I consider you are entitled to the full discount of 25 per cent for that. That

acknowledges both you accepting responsibility for what occurred. It also ensured that Mr Waterhouse’s family has not had to go through the stress of a trial to establish your guilt.

[30] The second factor I take into account is that I do accept that you are genuinely remorseful for what has happened. You have written a letter stating remorse for your action, you have expressed remorse honestly and sincerely today, and you have also done other things to reflect your remorse. You and your family have contributed the sum of $5,000 towards the cost of the victim’s funeral and you have also expressed a willingness to participate in restorative justice.

[31] I also need to take into account your good character. Prior to this offending you were regarded highly at work, at school and in your faith. By all measures it appears that you had, and I trust you still have, a bright future. In these circumstances, the Court does recognise that a blemish of a criminal record is in itself a punishment. It also means you have greater prospects of being fully rehabilitated.

[32] Finally, I take into account your relative youth. You were only 20 years old at the time of the offending. The Court of Appeal in a case called Churchwood v R, has stated that youth can be relevant to sentencing in at least three ways. ⁷ The first is that there are age related neurological differences between young people and adults, and it means young people as a consequence, may be more impulsive. The second is that the effect of imprisonment on young people, particularly the effect of

long sentences, may be crushing on young people and therefore have a disproportionately punitive effect. Finally, there is recognition that young people may have a greater capacity for rehabilitation, particularly given that the character of a young person is not as well formed as that of an adult. In your case, I have no doubt that you can go on to live a good and worthwhile life.

[I now invite you to stand.]

[33] Mr Faletolu, you have heard me discuss all the factors I have taken into account in deciding what sentence to impose on you. Having regard to the seriousness of the offence, the impact this has had on your victims, and the need for denunciation and deterrence, I consider a prison sentence is inevitable. I see your case as being comparable to, and falling within cases which have starting points of between five and seven years.

[34] Accordingly, the starting point I adopt is five and a half years. However, I deduct 25 per cent for your early guilty plea and a further 25 per cent for all the other factors I have mentioned, which include your youth, your remorse, your good character, and the fact that reparations have been paid. That results in a global discount of 50 per cent to arrive at an end sentence of two years nine months imprisonment.

Solicitors:

Raymond Donnelly & Co., Christchurch

Public Defence Service, Christchurch