R v Ae
[2016] NZHC 965
•13 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-008437 [2016] NZHC 965
THE QUEEN
v
MATAAFA TAOIPU AE
Hearing: 13 May 2016 Appearances:
Luke Clancy for the Crown
Kahungunu Barron-Afeaki SC (Tonga) and Shannon Withers for the Defendant
Judgment:
13 May 2016
SENTENCING NOTES OF MOORE J
R v AE [2016] NZHC 965 [13 May 2016]
Introduction
[1] Mataafa Taoipu Ae, you appear for sentence today having pleaded guilty to one charge of attempted murder and one charge of breaching a protection order.1
[2] In pleading guilty to those charges the Crown has agreed to offer no evidence in relation to the two remaining charges of aggravated burglary and threatening to kill. Accordingly those charges are dismissed.2
[3] The summary of facts is agreed and I am conscious that you are familiar with its contents. But because sentencing is an important public judicial function it is necessary I recite the relevant facts, particularly those facts which bear on and influence the sentence I intend to impose on you today.
Facts
[4] The victim in this matter is your wife of 10 years. You do not have children together. It is apparent that over recent years there have been issues between you. In fact, to the Probation Officer who prepared the pre-sentence report, you described the last five years of your marriage as “rocky”.
[5] But the problems between you go back even earlier than that. In May 2007 your wife was granted a temporary protection order against you and in August of that year the temporary protection order was made final. It was in force at the time of the attack on her which finds you before the Court today. And it is to those events I now turn.
[6] On 1 August last year you were at home alone. You were drinking heavily. You told the Probation Officer you consumed two litres of red wine. Plainly you were drunk. But that, of course, is no excuse for what later happened. Your wife was at church. You began to ruminate on how she had treated your children from
your previous marriage.
1 Crimes Act 1961, s 173; Domestic Violence Act 1995, s 49.
2 Criminal Procedure Act 2011, s 147.
[7] Obviously these thoughts developed into an obsession because you began to think about how you might commit violence against her.
[8] You telephoned her at the church several times and told her to come home. You then prepared two lengths of rope and three knives and laid them out in the hallway in anticipation of her arrival.
[9] When she got home an argument developed between the two of you. You picked up a knife. When your wife saw you do this she ran out of the house and down the street. You ran after her, knife in hand.
[10] She ran down the street before ducking into a property in an attempt to escape from you. She did not know the people who occupied that property and neither did you. Despite this you pursued her inside. You cornered her in the sun room and, in front of several eye witnesses, you forced her to the ground, knelt over her and began to stab her in the head. She held up her hands and arms in an attempt to protect herself but you continued to rain blows on her.
[11] The photographs taken in hospital after her wounds had been stitched up are horrifying. They show multiple, deep lacerations to her hands and forearms which are consistent with attempts to protect herself while you wielded the knife.
[12] After the attack you left the address still holding the knife. Not long afterwards you were located by the Police and amongst the various things you said, you told the Police you were, “… 100 per cent committed to kill [your] wife tonight”.
[13] Your wife sustained stab wounds to her face, scalp, arms and hands. She nearly lost a finger.
Personal circumstances
[14] Before I turn to consider the appropriate sentence it is important I say something about you. You are 66 years old; not a young man by any measure. But to your credit you have not previously appeared before the Courts.
[15] The pre-sentence report records that you grew up in Samoa where you met and married your first wife who tragically died in a traffic accident. From that relationship you had seven children who are now aged between 20 and 40 years old. You report that your children continue to support you. You married the victim of your attack 10 years ago and although in one breath you described your relationship with her as “beautiful … she [is] still in my mind and I still want to be with her”, you accept the relationship was a rocky one. It is apparent from the pre-sentence report you attempted to minimise your conduct to the Probation Officer. You said you laid out the rope and knives simply to scare her. You also described the weapon you used as “just a butter knife”. A glance at the photographs of the injuries puts the lie to that claim.
[16] The Probation Officer assesses your risk of reoffending as low but, based on your current offence, you are assessed as posing a high risk of harm to others and to your wife in particular. Despite this, you have expressed remorse for your offending and you do state that you take full responsibility. You have indicated you would be willing to complete any programmes or counselling which may be required of you in prison and I understood from your counsel this morning that you have already completed two. Unsurprisingly, the Probation Officer assesses your motivation to comply as being high.
[17] You told the Probation Officer you believed you and your victim could work out your issues and resume your relationship after you are released. Your counsel advises that, upon reflection, you now wish to clarify that statement; that what you wish is the opportunity to apologise to her and that you will prepare a letter to that effect. A letter to that effect has been handed to me this morning; I have read it and I have returned it to counsel so it can be provided to the victim.
[18] Whatever contact you may have with the victim in the future it is clear that the serious violence you inflicted on her despite the protection order makes it plainly apparent you need assistance in learning how to manage negative thoughts and feelings arising out of your relationships. The Probation Officer reports you are willing to complete a domestic violence programme in custody. I sincerely hope that
the present optimistic indications of your willingness to do that mean you will ensure that you make full use of any help of that sort which is offered to you.
Letters
[19] I have received two letters of support handed to me through your counsel. I
have read them.
[20] The first is a shorter letter than the one which was handed up to me this morning. It is addressed to your wife in which you apologise and seek her forgiveness. I will discuss your expressions of remorse later in these remarks.
[21] The second is a letter written by your youngest daughter with the support of her two younger brothers. It is a carefully written and heartfelt letter. She speaks lovingly of a supportive and loyal father and grandfather for whom nothing was ever too much trouble and who was always there for his children. She also shared some insights into your tempestuous relationship with your wife. She says the events of
1 August 2015 are simply out of character for the man she is still proud to call her father.
The victim
[22] No victim impact report has been furnished and I am advised your wife, by reason of her immigration status, has been required to leave New Zealand and is in Samoa back with family. Despite the absence of a victim impact statement it is trite to say it is hard to imagine your victim has been anything other than deeply affected by the events of that day in August last year.
Purposes and principles of sentencing
[23] I now turn to the sentencing process. Sections 7 and 8 of the Sentencing Act
2002 require me to have regard to a number of purposes and principles of sentencing. In this case, I consider the primary purpose of sentencing is to hold you accountable for the harm you have done to your victim and to denounce your conduct emphatically. Domestic violence, in all its forms, is a scourge on our community. It is necessary for the Courts to make it plain that violence in the
context of relationships which are predicated on trust and respect, will not be tolerated in our community and the Courts must reflect this in the penalties they impose.
[24] In your case the most relevant principles of sentencing are the need to take into account the gravity of your offending and your level of culpability. On the other hand I recognise the need to achieve consistency in sentencing levels and impose the least restrictive outcome which is appropriate in the circumstances.
Approach to sentencing
[25] The lead offence in this case is obviously the charge of attempted murder. The Crown submits the lesser charge of breaching a protection order can be dealt with as an aggravating factor for the lead offence. I accept this approach is appropriate.
[26] There is no tariff or guideline case for sentencing in attempted murder cases. However, guidance is given by the well-known case of R v Taueki.3 That case established sentencing bands for offences involving grievous bodily harm although the Court recognised these bands could have wider application for offences involving serious violence provided they were appropriately adapted to reflect the seriousness of the particular offence and the maximum penalty provided by law.4
[27] As the Crown points out, although charges of grievous bodily harm and attempted murder both share the same maximum penalty of 14 years’ imprisonment, slightly longer sentences are often imposed on attempted murder to reflect the fact that an element of attempted murder is the formation of an actual intention to kill.5
[28] After a case is categorised within the Taueki bands the Court will then refer to broadly similar cases of attempted murder to ensure the starting point reached is
consistent.
3 R v Taueki [2005] 3 NZLR 372; R v Walker [2015] NZHC 3214; R v Amohanga HC Hamilton
CRI-2006-019-2933, 6 March 2007; R v Rawiri HC Christchurch CRI-2005-009-13229, 7
December 2006.
4 At [9].
5 R v Pengelly [2013] NZHC 527 at [35]; R v Falani [2014] NZHC 1879 at [14]; R v Craw HC Auckland CRI-2005-057-000018, 7 June 2006.
Starting point
Crown submissions
[29] The Crown submits that, based on the number of aggravating factors present, this case falls within Band 3 of Taueki which attracts a starting point of between nine and 14 years’ imprisonment. It accepts your offending falls towards the lower end of this band and calls for a starting point in the region of nine to nine and half years’ imprisonment.
Defence submissions
[30] Mr Barron-Afeaki, on your behalf, responsibly takes no issue with the starting point suggested by the Crown.
Analysis
[31] Despite this level of agreement I am still required to make an independent assessment of your culpability in the light of Taueki and other broadly comparable cases.
[32] In my view the following aggravating factors emerge in your case:
(a) Premeditation: This was not a spur of the moment attack. It is not a case where you suddenly lost control or lashed out in response to provocation.6 Indeed, the very opposite is the case. You thought about what you intended to do to your wife. You smouldered. You called her several times until she agreed to return home. While you were waiting for her to get home you had enough time to lay out two lengths of rope and three knives in the hallway. You say that was to
scare her before the actual attack commenced. I am sure that tactic worked. It would have been profoundly terrifying for her to have walked into the home to be confronted by those items lying on the floor. Then you picked up the knife and you pursued her down the
road and, even as she took refuge in a stranger’s home, you continued
6 R v Taueki, above n 3, at [31](b).
the pursuit determined to hunt her down. On any analysis this was a premeditated and determined attack. In my assessment this is a seriously aggravating factor.
(b)Use of weapons: It is well recognised that the use of a lethal weapon is also a seriously aggravating factor.7 While I have not seen the weapon or photographs of it, it was certainly not “just a butter knife” in the benign sense that description conveys. This was a sharp knife which you used to considerable effect.
(c) Extreme violence: This is a factor which is also aggravating in your case. While you did not achieve your stated intention of killing your victim you certainly caused her serious, although not life threatening, injuries. While the victim was grounded and attempting to protect herself from the blows raining down on her you knelt over her thereby restricting her ability to defend herself.
(d)Attacking the head: It is also highly relevant, in terms of assessing the aggravating factors, to consider what part of a victim’s body was targeted. In this case you attacked her head; recognised as the most vulnerable part of a person’s body.8 I regard this is a particularly aggravating factor.
(e) Serious injury: Your victim suffered serious stab wounds to various parts of her head and body.9 The medical evidence indicate she sustained a total of seven lacerations to her arms and hands, two cuts to her face and four lacerations to her scalp.
(f) Vulnerability of victim: Case law supports the view that a breach of a protection order made in favour of the victim is a relevant aggravating
factor.10
7 At [31](d).
8 At [31](e).
9 At [31](c).
10 At [31](i).
[33] The Crown submits there are no mitigating factors in respect of your offending. I must agree.
[34] Where offending involving serious violence carries three or more aggravating factors it falls within Band 3 of Taueki which, as I have already mentioned, indicates a starting point of between nine and 14 years. This is where I must place your offending. However, I agree with the Crown that it properly fits towards the lower end of this band although certainly not at the bottom.
[35] I have considered two cases which have been referred to me by the Crown. One involved a similar attack in which the offender called the victim and invited her into his house before attacking her with a knife. He inflicted at least 15 stab wounds to the upper part of her body. The Court of Appeal adopted a starting point of 10
years’ imprisonment.11
[36] The other case is a little less helpful although it too involved an intimate partner attacking the other with a weapon.12 However, the level of violence in that case and the injuries suffered greatly exceed those in your case. There a starting point in the range of 11 to 12 years’ imprisonment was adopted.
[37] My own research has uncovered several further cases which I consider helpful in this comparative analysis. 13 14 15 16 I do not intend to describe them in
11 R v Walker [2015] NZHC 3214.
12 R v JRF HC Dunedin CRI-2011-021-002837, 30 September 2011.
13 R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009: The offender in that case had just been told that his partner wished to end their relationship. On the day of the offending, he
confronted and harassed her several times. When evening came, he sat outside her house and waited for a male associate of hers to leave. He also slashed her car tires. Finally, the offender knocked on her back door under the pretext of wanting to apologise. When the victim opened the door, he burst into the house with a carving knife and knocked her over. He then began to stab her in a “frenzy” in the chest and abdomen, stating that he wanted her dead. She suffered a
stab wound to the chest, seven to the abdomen and three to the back. Her liver, spleen and lung
were also lacerated. Lang J would have adopted a starting point of 11 years or even 11 and a half years but for the offender’s history of alcoholism and depression. This convinced him to lower it to 10 years and nine months.
14 R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008: In this case, the offender and his partner of 14 years had just separated. They had two young children who had been placed in
the interim custody of their maternal grandmother. This greatly distressed the offender, who received residential treatment for depression. In the days leading up to the offence, he repeatedly tried to convince his partner to give him the children. After she refused, he went to her workplace with a steak knife in his car, having consumed alcohol. He confronted her and then returned to the car to fetch the knife. He attacked her with it, beginning with a blow to the
detail but I will footnote them in my sentencing notes. What these cases confirm for me is that the appropriate starting point is one of nine and half years’ imprisonment. That is the starting point I adopt.
Mitigating factors personal to the defendant
[38] I now turn to the mitigating factors which are personal to you. At the age of
66 this is your first appearance before the Courts. The Court of Appeal has confirmed that an absence of previous convictions is, in itself, evidence of “previous good character” and is therefore at least potentially worthy of recognition.17 Both the Crown and your counsel agree you are entitled to some discount in recognition of this factor. I am prepared to apply a discount of 10 per cent.
[39] Despite the urging of your counsel, I am not prepared to make any allowance for your age. I do not regard 66 as particularly old or deserving, in of itself, any special mitigation in the absence of medical evidence to the contrary. Mr Barron-
Afeaki advises me today that you suffer from angina, gout and hypertension. These
head and eventually inflicting some 14 stab wounds to the back, neck, throat and chest, as well as defensive wounds to her hand. The offender ceased the attack after the victim told him she was dying. He then summoned help and attempted to comfort her. A starting point of nine years was adopted.
15 R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005: This case also involved an attack on a partner. In the middle of the night, the offender drove some distance to his partner’s mother’s house, where she was living at that time. He entered the house, and forced his partner
out of her bedroom and into the living room. He then repeatedly hit her about the head with his
fists. Her mother attempted to stop the attack by striking the offender over the head with a piece of wood. Seeing the opportunity, his partner attempted to run towards the back door but was unable to get out. The offender pulled a knife from a cutlery block and made a “frenzied” stabbing attack on the victim as she tried to run back past him. She collapsed to the floor but the offender continued stabbing her, inflicting eight wounds in total to her chest, neck and upper back. The victim’s youngest daughter witnessed the attack. The victim was left in a critical condition and had to be flown to hospital for emergency surgery. A starting point of 11 years was adopted.
16 R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006: Here the offender and his wife separated in bitter circumstances. The offender found out that his wife had developed a relationship with the victim, a onetime minister at their church. This enraged him and he made
various threats against the victim’s life over a number of months. On the day of the attack, the
offender went to his wife’s house but was not able to find her. He then drove around Porirua looking for her and suspecting she would be with the victim. When he eventually located the two of them, the victim saw him first and began to run away. The offender chased after him with a knife he had brought in his vehicle, and followed him for approximately 150 metres until the victim was overcome by asthma and collapsed. The offender stood over him and began attacking his head with the knife. The victim raised his arm to defend himself but quickly suffered a large laceration. The offender then continued to stab him several times in the back. Holding the knife with both hands, he then forced it deep into the victim’s neck, narrowly missing his jugular vein. A starting point of nine years was adopted.
17 R v Hockley [2009] NZCA 74 at [30].
are conditions which you are presently receiving treatment for and medication in respect of. They appear to have been managed successfully while you have been in custody over the last 10 months. I am unconvinced a sentence of imprisonment will be appreciably harder in your case. I also note that the Courts have been reluctant to place weight on this factor given the ability of prisons to accommodate elderly
inmates and manage ill health effectively.18
[40] Mr Barron-Afeaki also submits you deserve a discount for your remorse. The Supreme Court has confirmed that if on a robust evaluation of all the circumstances, genuine remorse has been shown by a defendant, credit should be given in addition to that included in recognition of a guilty plea.19 Mr Barron-Afeaki advises you now wish to have the opportunity to apologise to the victim and I have read the letter you have written for that purpose. The Probation Officer has also assessed you as being
genuinely remorseful although you do still attempt to minimise aspects of your offending. As I indicated to your counsel in the course of submissions I do accept that you are sincerely and genuinely remorseful. I do not doubt that your regret for your actions that day is sincere. In the circumstances I am prepared to apply a discount of five per cent to account for this factor.
[41] Finally, Mr Ae, I turn to your guilty plea. You were charged on or about
1 August 2015. You were to stand trial on 7 June 2016. You pleaded guilty on 6
April 2016, in other words about two months before your trial was scheduled to commence. Although it could never be said that this plea was entered at a particularly early stage, your counsel submits you should still receive the full discount of 25 per cent. He submits the delay in your case was justifiable; indeed it appears that for much of the time you were in custody awaiting trial your family was attempting to raise the funds necessary for a private psychological report. I have also been advised by your counsel that from a relatively early stage indications and approaches were made to the Crown in relation to resolution. Once the issue around the psychological report was resolved it seems you entered a plea of guilty reasonably expeditiously. You pleaded guilty as soon as an amended charge list was
agreed. I therefore accept there is some explanation for the delay.
18 See R v Hockley, above n 17, at [27]; R v S CA75/94, 21 June 1994.
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]-[64].
[42] However, against that I cannot ignore the fact that the evidence against you was overwhelming. In the absence of a psychiatric defence you had little option but to plead guilty. Multiple witnesses saw the attack and your admissions made immediately after the offending were telling. Convictions were inevitable.
[43] Thus, taking all these matters into account, I consider the appropriate discount in your case is 20 per cent.
[44] This brings the end sentence to six and half years’ imprisonment.
Minimum period of imprisonment
[45] I turn now to consider whether I should impose a minimum period of imprisonment. A minimum period of imprisonment can be imposed where the Court considers that release after one third of the sentence would be insufficient to hold the offender accountable for the harm done, denounce the conduct in which they were involved, deter them or other persons from committing a similar offence or protect the community from the offender.20
[46] I have given this issue a great deal of thought. I have come to the conclusion that a minimum period of imprisonment is not necessary in your particular case. While your offending was undoubtedly serious and deserving of denunciation in the strongest possible terms your personal circumstances and the content of the pre- sentence report, along with other material provided to me, provides some encouragement in terms of your longer term prognosis. This is your first offence and I accept that you now appear to have come to terms with its gravity. I do not doubt your remorse and your sincerity around the need to complete whatever programmes or counselling may be required while you are in prison. Programmes focused on domestic violence, anger management and alcohol abuse are obvious possibilities.
[47] These factors, together with your age, satisfy me that a minimum period of imprisonment is not required for the purpose of deterrence or to protect the
community from you.
20 Sentencing Act 2002, s 86(2).
Sentence
[48] Mr Ae, please stand.
[49] On the lead charge of attempted murder you are sentenced to six years and
six months’ imprisonment.
[50] On the charge of breaching a protection order you are sentenced to one month imprisonment to be served concurrently with the lead charge.
[51] Stand down.
Moore J
Solicitors:
Crown Solicitor, Manukau
Mr Barron-Afeaki SC (Tonga), Auckland
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