R v Failelei [2016] NZHC 2134 (9 September 2016)

Last Updated: 9 September 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-010059 [2016] NZHC 2134

THE QUEEN

v

_{KILALI FAILELEI}

Hearing:	9 September 2016
Appearances:	L Clancy and L E Nunweek for Crown H Juran for Prisoner
Judgment:	9 September 2016

_{SENTENCING NOTES OF GILBERT J}

Solicitors:

Kayes Fletcher Walker, Manukau

H Juran, Auckland

R v FAILELEI [2016] NZHC 2134 [9 September 2016]

Introduction

[1] Ms Failelei, you appear for sentence today having been found guilty by a jury of the following charges:

(a) Two charges of assault with a weapon. One of these is a representative charge. The maximum penalty for each of these offences is five years’ imprisonment.

(b) Four charges of assault on a child. The maximum penalty for each of these offences is two years’ imprisonment.

The facts

[2] The two victims, J and E, are sisters who came to live with you from Samoa with their younger brother, A, in November 2006. Their mother, who lives in Samoa, is your niece. An order for adoption of all three children was made in your favour in October 2005. J and E lived with you over three separate periods from November 2006 until late February 2014 but returned to Samoa on two occasions. All three children returned to Samoa on 11 July 2007. E returned to live with you on

1 November 2007 and J on 28 October 2008. Both girls returned to Samoa on

26 June 2009. All three children came back to live with you in New Zealand on

30 October 2011 and remained living in your care until 25 February 2014.

[3] One of the charges is a representative charge covering the period from

18 November 2006 to 25 February 2014 (in other words, this entire period) and it relates to J. J was aged between 11 and 18 during this period. The offending involved you giving J hidings using part of a vacuum cleaner or the handle of a mop if J was disobedient or answered you back. J sustained bruises as a result of these assaults.

[4] The remaining charges all relate to offending against E during the period from 1 November 2007 to 26 June 2009 when E was aged between 11 and 13. These offences covered five separate incidents involving hitting E with a broom stick across her shoulder and legs, punching her, smacking her with a jandal, smacking her

on her face with your hands, and kicking her. E suffered bruising and on one occasion, a bleeding nose.

Victim impact statements

[5] Apart from the physical injuries, J and E both describe the emotional harm that your offending has caused. They both trusted you as their mother and say that you broke their hearts as a result of the way you mistreated them.

Previous convictions

[6] You have eight previous convictions, all for driving offences. The most recent of these was for offending 17 years ago. These convictions are not relevant for the purposes of sentencing you today.

Probation report

[7] You are a 65 year old woman of Samoan descent. The main factors contributing to your offending are assessed as being a propensity to use violence and the poor relationships you have formed with marriage partners. You acknowledge that you sometimes “growled” at the children but you continue to deny having committed any acts of physical violence against them. You claim that the children are lying and that you do not believe in physical discipline.

[8] As a result of your current offending, you no longer have any contact with your three adopted children and do not know where they are living. You are therefore assessed as having a low risk of re-offending but a low to medium risk of harm to others given the nature of your offending.

[9] The probation officer recommends a community-based sentence of community detention, possibly combined with community work, as a punitive measure. The probation officer considers that you would benefit from supervision to support your rehabilitative counselling needs through organisations such as the Inner City Women’s Group (PAVE) and the Women’s Centre in Te Atatu South. A

parenting programme is also suggested given your ongoing contact with your

daughter’s six children who are aged between six and 23.

Purposes and principles of sentencing

[10] In sentencing you today, I must have regard to the purposes and principles of sentencing. Of particular relevance is the need to hold you accountable for your offending, to promote in you a sense of responsibility for that harm, and to deter you and others from similar such offending. I must impose the least restrictive outcome appropriate in the circumstances taking into account the gravity of your offending and the desirability of imposing a sentence that is consistent with sentences imposed in other comparable cases.

Aggravating features of the offending

[11] Because your offending involves violence against children under the age of

14 years, I am required by s 9A of the Sentencing Act 2002 to take into account the following aggravating factors that are applicable in your case:

(a) Defencelessness of the victims.

(b) The fact that the victims had been adopted by you and were entitled to expect that you would keep them safe. Your offending involved a significant breach of your relationship of trust.

[12] Another aggravating feature, which I must take into account under s 9 of the Act, is the physical and emotional harm caused by your offending. Also relevant in fixing the appropriate starting point is the duration of the offending.

Starting point

[13] There is little contest as to the appropriate starting point in your case. The Crown submits that this should be between 12 and 14 months’ imprisonment. Mr Juran contends that the appropriate starting point is at the lower end of this range. He submits that it should be set at 12 months’ imprisonment.

[14] Of the cases cited, the one I found most useful is the Court of Appeal’s decision in Tuhua v R.¹ Mr Tuhua was found guilty on three charges: a representative charge of assaulting his grandson who was aged approximately eight over a period of 18 months; one charge of kicking his 11 year old granddaughter; and a representative charge of assaulting the same granddaughter over a period of five and a half years. The assaults in that case were described as “hits” or “hidings”. The

Court of Appeal upheld a sentence imposed in the District Court of 12 months’ imprisonment which was the starting point adopted and the end sentence because there were no mitigating features in that case.

[15] I consider that the appropriate starting point in this case, taking into account the aggravating features I have mentioned and having regard to the totality of your offending, is a sentence of 12 months’ imprisonment.

Mitigating factors

[16] There are no mitigating features of the offending and there appear to be no personal mitigating factors. Because you continue to deny your offending, you are not entitled to any discount for remorse and of course, there was no guilty plea. The indicative end sentence is therefore 12 months’ imprisonment.

Least restrictive outcome

[17] I consider that a community-based sentence is appropriate in your case. The Crown accepts this. I agree with Mr Clancy’s submissions on behalf of the Crown, supported by Mr Juran on your behalf, that a sentence of community detention combined with supervision to address your rehabilitative needs is the appropriate sentencing response. This is also supported by the probation officer. Although home detention is clearly an option, the difficulty identified by the probation officer in your case is that this would prevent you from visiting your daughter and grandchildren at your daughter’s home. You are heavily dependent on them for social support. If this contact is prevented, this could have a negative impact on your

_{emotional and psychological wellbeing.}

¹ Tuhua v R [2014] NZCA 558.

[18] You advised the probation officer that you stopped using alcohol in 2004 because it was associated with your driving offences. You have expressed a willingness to undertake rehabilitative programmes including anger management and to be subject to a period of supervision to assist your rehabilitation.

Sentence

[19] Ms Failelei, would you please stand. On each of the charges I sentence you to a term of six months’ community detention, 40 hours’ community work and six months’ supervision. These sentences are to be served concurrently on the following terms and conditions:

(a) Upon leaving Court today you are to go directly to your address at

9 Surat Place, Glen Eden and await the arrival of a representative of the monitoring company.

(b) You are to remain at that address at all times during the curfew period which is from 7.00 pm until 6.00 am until your sentence is completed.

(c) You are to complete an anger management programme or counselling as directed by a probation officer.

(d) You are to be assessed for a parenting programme and, if suitable, complete the programme as directed by a probation officer.

(e) You are to complete any other programmes or counselling, as directed by a probation officer.

(f) You are not to have any contact with the victims of this offending.

(g) You are to comply with any direction by a probation officer to be supervised by an adult, approved by the probation officer, when in the company of children.

(h) You are not to use or possess alcohol or illicit drugs.

(i) You are to work only if allowed to do so by a probation officer.

_{[20] You may stand down.}

M A Gilbert J