Warren Pay resentenced for killing Faapaia Fonoilaepa

Warren Leonard Pay in the High Court at Wellington in 2020. Photo / Melissa Nightingale

A man who spent seven years in jail for murder is now free after being resentenced on a lesser charge of manslaughter.

In 2019, Warren Leonard Pay was found guilty of murdering 29-year-old Faapaia Fonoilaepa in Taita, north of Wellington, in 2018. He was then sentenced in 2020 to life imprisonment with a non-parole period of at least 10 years.

At his first sentencing Pay became agitated and appeared close to tears, yelling “I’ve been framed“, telling Justice Helen Cull the facts she referred to when sentencing him were “lies”. The sentencing was adjourned so Pay could be taken out of the room and spoken to by his lawyers.

The Court of Appeal quashed that conviction and Pay subsequently pleaded guilty to a charge of manslaughter. Today in the High Court at Wellington Pay was sentenced for manslaughter.

Referring to a revised summary of facts, Justice Cull said in the days before the incident it was accepted Pay was experiencing an increased threat to himself, suffering from precatory thinking and auditory hallucinations.

She said on an evening in September 2018, Pay left an address in Taita to walk to a friend’s house in Lower Hutt. Pay wore a chain link vest and carried a large butcher’s knife in a pouch under that vest.

He was also carrying a homemade pistol which was made from a converted wall stapler and was loaded with one gunshot round. He also wore a belt which contained three more shotgun shells.

Pay later told police he armed himself to protect himself from perceived threats, which Justice Cull agreed he had been subject to.

That evening Pay walked to High St and sat on a large rock. At that time Fonoilaepa and an associate passed Pay on their way to the bottle store. As they approached, Pay stood on the rock and asked them who they were and if there was anything they wanted.

When Fonoilaepa asked Pay what he wanted, Pay began swearing and pointed his homemade pistol at Fonoilaepa’s leg. He attempted to fire the imitation firearm and said “Bang”. The gun didn’t fire.

Fonoilaepa then moved towards him and struck Pay around the head, asking why Pay had threatened him.

Pay fell to the ground again and Fonoilaepa was hitting him in the head and his associate hit Pay in the stomach to try to get him to release his hold on Fonoilaepa.

Justice Cull said at some point the associate pulled Pay up and removed the vest. That’s when Pay pulled out his knife.

At one point the fight stopped, Pay and Fonoilaepa were separated and the associate and Fonoilaepa began walking across the road. But when Pay yelled something, Fonoilaepa returned and hit Pay in the face.

“While you were being punched in the face you stabbed Mr Fonoilaepa in his right shoulder and in the left side of his upper chest, using the butcher’s knife which penetrated his heart and caused his death,” she said.

Fonoilaepa fell to the ground and his associate tried to flag down passing motorists for help.

Police found Pay at a relative’s address in Hastings four days later.

Warren Leonard Pay in the High Court at Wellington. Photo / Melissa Nightingale

Judge: You acted in excessive self-defence

Justice Cull said it was accepted that given Pay’s mental state and the fact he had been hit multiple times while fighting Fonoilaepa, Pay believed he was in serious danger.

“You lashed out and stabbed Mr Fonoilaepa with the knife you were carrying to protect yourself from the perceived threats. What this means is that you acted in excessive self-defence in the circumstances,” Justice Cull said.

The Crown accepted that he didn’t intend to kill Fonoilaepa and that’s why the charge of manslaughter was laid, she said.

Crown prosecutor Tamara Jenkin told the court the violence involved in this case was not only life-threatening, it had resulted in Fonoilaepa’s death. Pay had initiated that violence, she said.

Pay’s lawyer, Elizabeth Hall, said her client was genuinely remorseful and it was wrong of the Crown to suggest his remorse was tempered because of his appeal. She said the charge of manslaughter hadn’t been available to Pay until earlier this year.

During her sentencing Justice Cull referred to the aggravating factors in the case, including that Pay had caused Fonoilaepa’s death, the use of weapons and the impact the death had on Fonoilaepa’s family.

She said the mitigating factor was the excessive self-defence.

The Crown sought a starting point of eight years, while the defence sought one of five years, with an end point of six years and two to three years respectively.

Justice Cull said the reports prepared for sentencing showed Pay was no longer involved in a gang and now opted to spend more time with his whānau, who were very supportive of him. Pay was released on bail in September following the appeal.

Justice Cull said she considered Pay’s remorse was genuine and referred to her earlier sentencing notes when she sentenced Pay for murder.

A section of the letter, which was read out to the court, said:

“Mr Pay is devastated about the whole incident and never intended to cause serious harm to this person. He wishes that he could take the place of his victim and he is sorry for his actions and the pain and suffering that he has caused the victim’s family. He also hopes the burden that he’s placed on his own whānau and accepts this was an incident that got out of control.”

On the charge of manslaughter, Justice Cull sentenced Pay to two years and seven months’ jail. His lawyer, Hall, said given the seven years he had spent in custody and the fact he wass currently on bail, she did not expect he would return to jail.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.