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Momoisea v R

Momoisea v R

Case [2019] NZCA 528 1 November 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA430/2018
[2019] NZCA 528

BETWEEN	SILAPEA MOMOISEA Appellant
AND	THE QUEEN Respondent

Hearing:	11 September 2019
Court:	Courtney, Duffy and Wylie JJ
Counsel:	R J Stevens and R T Nye-Wood for Appellant A J Ewing for Respondent
Judgment:	1 November 2019 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.
B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

Silapea Momoisea took a large carving knife to the place where her former partner was living with his newly wedded wife. Ms Momoisea hid in the darkened room and when he entered with his wife Ms Momoisea stabbed him seven times and his wife twice. She managed to escape and survive the attack, but he did not. He died at the scene.
Ms Momoisea was charged with the murder of her former partner and attempted murder of his wife. She pleaded guilty and following conviction on the murder charge she was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 14 and a half years.[1]
[1]R v Momoisea [2018] NZHC 1577 [Sentencing notes] at [59]–[60].
She now appeals against the length of the MPI. She also seeks leave for an extension of time for filing the appeal as it was filed one day out of time. There was no opposition to the extension being granted and we are satisfied we should do so.

Relevant facts

Ms Momoisea is a 44-year-old Samoan woman and the mother of five children from a previous marriage. She had been in an intimate relationship with the deceased victim for approximately four years. They worshipped in the same church. He had an earlier relationship with a woman in Samoa with whom he had a daughter. Sometime during the course of his relationship with Ms Momoisea, the deceased returned to Samoa for a visit. He reconnected with the mother of his daughter and they married. He returned to New Zealand and later his wife and daughter came to New Zealand to join him. This led to him ending his relationship with Ms Momoisea.
Ms Momoisea took the ending of her relationship with the deceased badly. On the weekend of the 24 June 2017, she told her daughters the relationship had ended and why. She was upset and told her daughter she would kill the deceased because he had hurt her and if he did not die she would kill herself. Her family did not take the threats seriously.
On the morning of 26 June 2017, together with her daughter and grandchildren, Ms Momoisea left home taking a large knife with her. She and her daughter took the children to school and then Ms Momoisea went on alone to the deceased’s address, but he was not home. She went to the town centre where she encountered the wife of her pastor to whom she told her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Momoisea v R

Details

AGLC: Momoisea v R [2019] NZCA 528
Case: [2019] NZCA 528
Decision Date: 1 November 2019 at 11 am

CaseChat Overview and Summary

In this case, the appellant, Silapea Momoisea, was convicted of the murder of her former partner and attempted murder of his wife. She was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 14 and a half years. She appeals against the length of the MPI and seeks an extension of time to file the appeal. The appeal raises issues about the appropriateness of the sentence, the application of statutory minimums, and the extent to which personal mitigating factors and the guilty plea should reduce the sentence. The Court of Appeal found that the trial judge's methodology and the considerations taken into account led to an appropriate outcome. The Court held that the trial judge was correct not to reduce the MPI for provocation and that the reductions given for personal circumstances were appropriate. The Court also held that the 18-month deduction applied by the trial judge for the guilty plea was consistent with the reasoning in Malik v R and the cases which follow its approach. The Court was satisfied that when the overall sentence was viewed in its entirety there was nothing manifestly unjust about the MPI imposed in this case. The appeal was dismissed.

The final orders of the Court of Appeal were that the application for an extension of time to appeal was granted and the appeal was dismissed.

Orders