Vaeau v R [2024] NZHC 439 (5 March 2024)

Last Updated: 10 April 2024

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-266 [2024] NZHC 439

BETWEEN	WALTER DEAN VAEAU Appellant
AND	THE KING Respondent

Hearing:	29 February 2024
Appearances:	K Gray for Appellant W J S Mohammed for Respondent
Judgment:	5 March 2024
Reissued:	8 March 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 5 March 2024 at 9 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

VAEAU v R [2024] NZHC 439 [5 March 2024]

Introduction

• [1] The appellant, Walter Vaeau, pleaded guilty to one charge of causing grievous bodily harm with intent to injure,¹ and on 14 November 2023, he was sentenced two years and four months’ imprisonment.²

• [2] Mr Vaeau appeals his sentence on the following grounds:

(a) the starting point of three years and two months’ imprisonment was too high;

(b) the Judge gave insufficient weight to the factors raised in the s 27 report;

(c) comments in the pre-sentence report about the victim should not have tempered any credit for remorse;

(d) the end sentence should have been under two years’ imprisonment; and

(e) Mr Vaeau should have been granted leave to apply for home detention.

Facts

• [3] In the early hours of 18 April 2021, the victim was at a bar on Colombo Street, Christchurch. Mr Vaeau was also at the bar. He did not know the victim. At approximately 2.25 am, the victim walked out of the bar with Mr Vaeau following very close behind. As he got to the front door, Mr Vaeau tapped him on the arm causing him to turn and face him. Mr Vaeau immediately punched the victim once to the head, knocking the victim unconscious.

• [4] The victim received severe traumatic brain injuries as a result of the assault. These included multiple haemorrhagic contusions to both sides of his brain, swelling of the right hemisphere of the brain and a fracture to the left parietal area of the victim’s

¹ Crimes Act 1961, s 188(2) – maximum penalty of 7 years’ imprisonment.

² R v Vaeau [2023] NZDC 25308.

skull. In addition to the brain injuries, the victim suffered a laceration to his left upper lip. He spent 10 days at Christchurch Hospital and three weeks at the Kenepuru Brain Haemorrhage Unit.

Victim Impact statement

• [5] The victim impact statement details the harm suffered by the victim as a result of the assault, including physical injuries, financial problems, and ongoing difficulties facing everyday life. The victim states he “endured the most horrendous scale of pain while in hospital” and has “lost a year of [his] life”. He says he has ongoing effects from the traumatic brain injury, including headaches, irritability and difficulty focusing.

• [6] The victim explains how his small start-up business in real estate photography had to be put on the back burner, meaning the network of clients he had painstakingly built up was lost. He also explains the difficulties he had in transporting himself because he could not drive after the accident and his loss of earnings as a result of being on Accident Compensation Corporation (ACC) instead of on a full wage for at least six months.

• [7] Finally, the victim explains the emotional harm that he has suffered. The assault took place on the evening of his 37^th birthday. He says that he no longer enjoys going out socially and cannot attend birthdays or celebrations for friends or family, or any function where alcohol is present as he is fearful someone will hit him when he is not looking. He also cannot surf, ski, or mountain bike any more, all activities which he used to enjoy, but which are too fraught with risk for him now. He tells of a fear that if he were to go out or to use social media, Mr Vaeau will find him and kill him. He says his personal relationships have become strained, including with his own family, as the stresses of the case take their toll.

District Court decision

• [8] The Judge noted various aggravating factors of the offending. These included that the attack was directly to the victim’s head and that the victim was vulnerable because he had no opportunity to defend himself. The Judge also considered the

seriousness of the injury and the associated impact on the victim and his family, was a further aggravating factor. The Judge considered premeditation was present only to a minor degree.

• [9] The Judge considered Mr Vaeau’s guilty plea and remorse to be mitigating factors of the offending. However, the Judge noted that the fact Mr Vaeau is now sorry for what happened must be tempered by his comments in the pre-sentence report to the effect that he attacked the victim because he was looking at the women in the bar. It was apparent to the Judge that the victim was doing nothing wrong and certainly nothing which deserved the response that Mr Vaeau meted out.

• [10] The Judge set a starting point of three years and two months on the basis the offending fell into band 3 of Nuku v R due to the presence of multiple aggravating features to a reasonably high degree.³

• [11] The Judge did not impose an uplift for Mr Vaeau’s previous firearms-related convictions in Australia. The Judge did, however, apply a 20 per cent discount for Mr Vaeau’s guilty plea. The Judge also applied an additional five per cent discount to recognise Mr Vaeau’s regret at the impact on the victim, along with his preparedness to attend restorative justice and his offer to pay $5,000 in emotional harm reparation, even though neither of these offers were taken up.

• [12] The Judge did not apply a discount for the matter raised in the report provided under s 27 of the Sentencing Act 2000. The Judge found it difficult to attribute Mr Vaeau’s actions to a disadvantaged upbringing as opposed to “sheer stupidity and drunkenness”.⁴ The Judge stated that the lack of any violence in Mr Vaeau’s criminal history at the age of 38 suggested that a propensity for violence stemming from his upbringing could not be considered a factor of this particular offending.

• [13] The Judge noted that on favourable rounding, the end point came to two years and four months’ imprisonment. The Judge concluded that the sentence was an

³ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

⁴ At [20].

appropriate response to the offending and a custodial sentence was warranted to meet the purposes and principles of sentencing.

Principles on appeal

• [14] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁵ As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁶ It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁷

Submissions

Appellant’s submissions

• [15] Ms Gray for Mr Vaeau submits that the District Court Judge erred in setting a starting point of three years and two months’ imprisonment. When considered against comparable cases Ms Gray submits that the starting point was manifestly excessive and not justified by the actual offending. Ms Gray cites several cases in support of this submission which she says support a starting point of around two years 10 months.

• [16] Relying on the Court of Appeal’s decision in Carr v R, Ms Gray further submits that the s 27 report provides a credible account of matters that ought to have resulted in a discount in sentencing.⁸ Ms Gray submits that the abuse Mr Vaeau suffered and witnessed in his upbringing, including the normalisation of violence in his life, are the underlying factors that set him on a pathway to ultimately being deported back to New Zealand and making the choices that he did on the night of the offending.

⁵ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁷ Ripia v R [2011] NZCA 101 at [15].

⁸ Carr v R [2020] NZCA 357 at [60].

• [17] Ms Gray submits that a greater discount than five per cent is justified for Mr Vaeau’s demonstrations of remorse, namely, his guilty plea; that he sought restorative justice immediately upon entering a guilty plea; his offer to pay a $5,000 reparation sum, and his discussion of his remorse and of having flashbacks in the presentence report. Ms Gray also points out that Mr Vaeau had been out of trouble since the date of his offending and had made some prosocial choices since the offending including giving up alcohol.

• [18] Ms Gray also submits that Mr Vaeau should be granted leave to apply for home detention if the sentence is reduced to two years’ imprisonment or less. He now has a suitable home detention address at his brother’s residence in Auckland, where he would be well supported. He has served three and a half months in prison and its impact has been significant on him.

Respondent’s submissions

• [19] Mr Mohammed submits for the Crown that the District Court Judge’s starting point is within range, albeit at the upper end, considering that the offending before this court is serious and represents an act of gratuitous and unprovoked violence.

• [20] Regarding the Judge’s decision to decline a discount for matters raised in the s 27 report, Mr Mohammed submits that the Judge was correct to find that Mr Vaeau, who describes an internal struggle or tug of war as to whether to follow a gang path or be prosocial, took the latter path. Mr Vaeau then unfortunately deviated from this path later in life. Mr Mohammed submits that there is a limited nexus between the factors raised by the s 27 report and the offending. At best it reveals Mr Vaeau learned maladaptive coping strategies, including the use of alcohol, when faced with adversity.

• [21] Finally, Mr Mohammed submits that the five per cent discount for Mr Vaeau’s remorse adequately reflected the remorse shown in this case.

Analysis

Was the starting point manifestly excessive?

• [22] Ms Gray refers to the Court of Appeal decision of Rihia v R in support of her submission that the starting point was manifestly excessive.⁹ In Rihia v R, a starting point of two years and six months’ imprisonment was upheld on appeal for a matter where there had been a one punch assault on the right side of the victim’s jaw, instantly rendering him unconscious.¹⁰ The victim suffered a fracture at the back of his skull, bruising to the brain and post-traumatic amnesia.¹¹ The appellant was charged with wounding with reckless disregard for the safety of another, a charge also carrying a maximum sentence of seven years’ imprisonment.

• [23] I accept there are considerable similarities between the two cases. The only distinction I could draw was that while offending in Rihia was unprovoked, it did occur in the context of an argument with a known associate. The offending in the present case came out of nowhere, and completely blindsided the victim, who was entirely unsuspecting. However, that is insufficient to explain the eight month difference in starting point.

• [24] In Ihaia v R the High Court considered that single blow assault “attracts a lower sentence than the prolonged, repeated infliction of injury in which both harm and culpability are increased with each successive blow.”¹² Ms Gray cites several cases where several blows were made to the victim, but where the starting point adopted by the Court was lower than the present case. These cases include Hala v R;¹³ Kauvai v R;¹⁴ R v Harrison;¹⁵ R v Sampson-Arps;¹⁶ and Williams v R.¹⁷

• [25] In Hala, the appellant attacked a young 18 year old student at a bar after the victim collided with the appellant as he walked through the crowd. The appellant

⁹ Rihia v R [2016] NZCA 90.

¹⁰ At [4].

¹¹ At [5].

¹² Ihaia v R [2021] NZHC 1785 at [60].

¹³ Hala v R [2013] NZCA 237.

¹⁴ Kauvai v R [2017] NZCA 241.

¹⁵ R v Harrison [2022] NZHC 801.

¹⁶ R v Sampson-Arps [2022] NZHC 2720.

¹⁷ Williams v R [2021] NZHC 960.

responded by punching him three times in the face, knocking him to the ground. As the victim got up, he was again punched in the face by the appellant. The victim’s jaw was fractured in two places, and the repair required that metal plates be inserted. He lost one tooth and he was likely to lose more as a result of dental problems caused by the injury.¹⁸ The Court of Appeal upheld a starting point of two years and 10 months’ imprisonment on a charge of injuring with intent to injure.

• [26] I consider the difference in starting point between that case and the present case is, in part, explained by the appellant in Hala facing a charge that carried a maximum penalty of five years’ imprisonment not seven years’ imprisonment. In Nuku v R, it was noted that offences with a seven year maximum sentence are generally to be regarded as more serious than those with a five year sentence.¹⁹ Furthermore, I accept that the injuries in that case, while serious, were not as severe as the traumatic brain injury that resulted in the present case.

• [27] In Kauvai v R, the offender was heavily intoxicated and harassing a woman. The victim intervened and the offender punched him in the head. He threw the woman, causing her to hit her head and lose consciousness. When he went to lift her up the victim again intervened. The offender threw the victim to the ground and punched and kicked him. He received a fractured jawbone which required surgery and he had to have two metal plates inserted in his jaw.²⁰ The starting point of two years and 10 months' imprisonment on the lead offence of injuring with intent to injure was upheld on appeal. Again, I consider the injuries in the present case were arguably more severe than Kauvai and the charge had a maximum sentence of five years not seven.

• [28] I accept that the other cases cited by Ms Gray involve multiple blows to the victim, and the starting points adopted are lower than the present case where only one blow was inflicted. However, other aggravating factors were present in this offending, in particular, the seriousness of the injury which has had enduring consequences for the victim.

¹⁸ At [2].

¹⁹ Nuku, above n 3 at [39].

²⁰ At [2].

• [29] While these cases are useful, in my view, it is preferable, as the Judge did, to start with the guideline judgment to set the range for sentencing and then use like cases to set the starting point within that range. In Nuku v R, the relevant bands are described as follows:

...

(b) Band 2: a starting point of up to three years’ imprisonment will be appropriate when three or fewer of the aggravating factors listed at

[31] of Taueki are present.

(c) Band 3: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band 3, even if there are few other aggravating features.

• [30] The decision in Nuku appends the aggravating factors listed in Taueki. I consider the aggravating factors which are relevant in this case as follows:

(a) Extreme violence – while there was no extreme violence in the sense of prolonged offending, this factor also captures violence which is unprovoked or gratuitous. This was unprovoked violence and I consider this a moderately aggravating factor.

(b) Serious injury resulted – having read the victim impact statement, I am satisfied this is a seriously aggravating factor. However, impact on the victim and his family is simply a consequence of the injury. It is not a separate fact. I also note the caution that care has to be taken not to double count the level of violence inflicted and the seriousness of the injuries which result from it.

(c) An attack to the head is present. Because attacks to the head of a victim can have particularly serious consequences coming, this factor is clearly present.

(d) While I could also describe the victim as vulnerable, that arises solely from the unprovoked nature of the attack which took the victim by surprise and is accounted for in the first aggravating factor.

(e) I accept that premeditation is not really a factor here. Any premeditation was minimal.

• [31] Looked at in totality, I consider this is a case where three aggravating factors are present and, as both counsel accepted, the offending therefore straddles the boundary between band 2 and band 3. In my view, therefore, the offending is most appropriately seen as attracting a starting point of just under three years’ imprisonment and this reflects the other cases Ms Gray referred me to, but also decisions that Mr Mohammed referred me to, including R v Leota²¹ (where a two and a half year starting point was taken) and Karetu v R²² (where a three year starting point was taken). I note that both of those cases involved the aggravating feature of a prison officer being attacked. Accordingly, I would have taken a starting point of two years and 11 months’ imprisonment. If that was the only adjustment, it would not necessarily lead to an excessive end sentence, so I go on to consider the other arguments on appeal.

Should a discount have been applied for the s 27 report?

• [32] The report states that Mr Vaeau’s parents are from the Cook Islands, although he was born in New Zealand. While it does not appear he wanted for anything in his childhood, Mr Vaeau says he was exposed to extreme alcohol consumption and gang activity as his uncles were patched gang members. He recalls that his alcohol consumption began at age 10 and he began drinking regularly between the ages of 17-23. He also reports violence inflicted on himself and his siblings, particularly on his older brother, and he says that his brother committed suicide at age 15 because of the extreme physical violence meted out against him.

• [33] His family moved to Australia when he was 13 so his brothers, and then he, could pursue a professional rugby league career. However, Mr Vaeau was involved in

²¹ R v Leota [2013] NZHC 2857.

²² Karetu v R [2013] NZCA 408.

an accident while playing professional rugby where his retina was detached from his eye and now he only has vision in one eye. This ended his career as a professional player and he lapsed into depression and began drinking very heavily. He also reported three occasions of unsuccessful suicide attempts. The report does go on to say that he was able to seek professional support for his depression and anxiety and was prescribed Fluoxetine to help treat it. The report also mentions Mr Vaeau’s stigmatisation as a ‘501 deportee’ from Australia to New Zealand, and the consequent loss of social and familial connections including to his two sons, who still live in Australia.

• [34] The District Court Judge declined to apply a discount for the s 27 report because he did not consider that there was nexus between Mr Vaeau’s offending and the matters raised by the report. However, Ms Gray submitted there was a sufficient nexus citing Carr where the Court of Appeal stated:²³

... where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender's upbringing such matters ought to be taken into account in sentencing.

• [35] The Court further stated, that where a report gives:²⁴

a credible account of matters which might be considered to have impaired choice and diminished moral culpability so as to establish a causative contribution to offending, of the kind envisaged in Zhang... we consider it must have an effect on the sentencing outcome.

• [36] The Court also recognised that the assessment of an appropriate allowance to recognise matters raised in s 27 report is a very fact specific exercise in each case.²⁵

• [37] Ms Gray argues that the matters raised by the s 27 report demonstrate Mr Vaeau’s impaired choice and diminished moral culpability so as to establish a causative contribution, and it must have an effect on the sentencing outcome.²⁶

²³ At [60].

²⁴ At [65].

²⁵ At [63] citing Whittaker v R [2020] NZCA 241 at [51].

²⁶ Carr v R, above n 8, at [65].

• [38] Notwithstanding that much of the report is self-reported I accept that the appellant’s life experiences, including the violence he experienced, his brother’s suicide, and the early normalisation of excessive drinking all contributed to the maladaptive coping strategies he used to deal with the loss of his professional rugby career and with the social dislocation that came with his deportation from Australia. I accept, therefore, there is causative contribution between this background and his offending, albeit it is a less compelling link than in some other cases. I would allow a five per cent discount for the matters raised in the s 27 report.

Should a greater discount have been applied for Mr Vaeau’s remorse?

• [39] Section 10 of the Sentencing Act requires the Court to consider any offer of any measures taken or proposed to be taken by the offender to apologise to the victim, their family or whanau, or make good the harm that has occurred. Remorse must be demonstrated, and the Court is not required to take any unsubstantiated claims at face value. The discount provided for remorse can be tempered by the seriousness of the offence. It is the defendant who bears the onus of demonstrating their remorse is genuine.

• [40] In this case, the District Court Judge was concerned that the genuineness of the remorse was somewhat undermined by Mr Vaeau defending his actions by saying that the victim was looking at some women in the bar and tried to harass a female member of his group. Nevertheless, he accepted there were tangible demonstrations of remorse and regret by the offer to attend restorative justice and to pay reparation, even if these were not accepted by the victim.

• [41] In my view, the appellant has done all he can to demonstrate remorse, including maintaining an alcohol-free lifestyle for a sustained period of time, noting alcohol was no doubt a factor in the offending. In my view, the sustained change in lifestyle, coupled with the expressed remorse and voluntary offers of reparation, warrant a meaningful discount. I do not consider the explanation given for the attack to the pre-sentence report written undermines the remorse shown. It did not go so far as blaming the victim nor lessening his own culpability. Noting that discounts as high as 16 per cent have been given for efforts to attend restorative justice, acceptance of

offending engagement with counselling, early guilty plea and efforts to combat alcohol use,²⁷ I would give a discount of seven per cent in the present case.

• [42] If I adjust the starting point to two years and 11 months and apply the discounts which, as adjusted, total 32 per cent, I get to an end sentence of 24 months.

• [43] This allows me to consider whether to convert the sentence to one of home detention.

• [44] In that regard, Mr Mohammed says the sentencing principles of denunciation and deterrence should prevail and mandate that the sentence of imprisonment not be converted to one of home detention. Ms Gray, on the other hand, submits the experience of imprisonment has been hard and has had a profound effect on Mr Vaeau. He is fearful for his wellbeing and is currently segregated as a consequence. The sentencing principles of denunciation and deterrence have been sufficiently served.

• [45] While the matter is finely balanced, I accept this is a case where leave can be granted to apply for home detention. While I understand Mr Vaeau’s brother has consented to his home being offered as a home detention address and it has been assessed as technically suitable, I leave it to a subsequent process to assess whether it is an appropriate address to serve the balance of his sentence on home detention.

Result

• [46] The appeal is allowed. The sentence of two years four months’ imprisonment is quashed and in its place a sentence of two years’ imprisonment is imposed with leave granted to apply for home detention.

Solicitors:

Crown Solicitor, Christchurch

Copy to:

K Gray, Barrister, Christchurch

²⁷ A v R [2018] NZHC 543.

Addendum

• [47] It has been brought to my attention that I have not referred to whether special conditions should be imposed on the offender pursuant to s 93(2)(b) Sentencing Act 2002. Accordingly, I issue this addendum to my judgment dated 5 March 2024.

• [48] I am satisfied that it is appropriate to impose the special conditions recommended in the pre-sentence report as post-release conditions on imprisonment.

• [49] Accordingly, I impose the following special conditions to apply until the sentence expiry date:

(a) not to possess, consume or use any alcohol or drugs not prescribed to you;

(b) not to associate with or contact the victims of your offending without the prior written approval of a Probation Officer;

(c) to attend and complete an appropriate alcohol and drugs programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer;

(d) to attend and complete an appropriate anger management programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer;

(e) to attend and complete an appropriate assessment, treatment or counselling to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

Dunningham J