R v Aiono
[2012] NZHC 1752
•11 July 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-092-3238 [2012] NZHC 1752
THE QUEEN
v
SOLOFA AIONO
Hearing: 11 July 2012
Appearances: J C Gordon SC and K V Mills for Crown
M N Pecotic for Prisoner
Judgment: 11 July 2012
SENTENCING REMARKS OF PETERS J
Solicitors: Meredith Connell, Crown Solicitors, Auckland:
Counsel: M N Pecotic, Barrister, Auckland: [email protected]
R V SOLOFA AIONO HC AK CRI-2009-092-3238 [11 July 2012]
Introduction
[1] Mr Aiono, you appear for sentence having been convicted of the murder of Mose Motunuu on 24 May 2012. Your conviction followed a jury trial at which I was the presiding Judge. That was the third trial that there had been of the case against you.
[2] Mr Aiono, I am going to summarise the facts of the case and then move to the sentencing process. Fortunately there is considerable agreement between what Crown counsel has told me and what your own lawyer has said is appropriate and I congratulate them both on their excellent and very fair, I have to say, submissions.
Background
[3] Let us consider the relevant events.
[4] In December 2008, you, your wife Tausilia, your son Francis – who was only a baby at the time, Mose – who was a good friend of yours – and another man moved into a house together. All went well and everyone got along.
[5] You then had to return to Samoa in early 2009 to deal with some family matters. You left Auckland on 1 February 2009, having made arrangements for Tausilia and your son Francis to stay with family members while you were away.
[6] Now it is clear from the evidence, and from the phone calls and the text messages, that you became concerned about Tausilia’s conduct while you were away and, to put it bluntly, whether she was seeing other men. Tausilia was much younger than you, about 18 or 19 at the time and keen to go out and socialise and have a good time. As it turned out, whilst you were away Tausilia had consensual sexual intercourse with Mose, although what you were told about the matter is a different issue.
[7] You then came back to Auckland on 24 February 2009. Francis by that stage was in Middlemore Hospital. You and Tausilia stayed the night at the hospital and during the night Tausilia told you that Mose had raped her.
[8] The following day, 25 February, you asked Tausilia again what had gone on between her and Mose. At your first trial, Tausilia’s evidence was that she continued to tell you that Mose had raped her. However, shortly before the second trial in about August 2011 Tausilia changed her account and her evidence at the second trial, and again at the third, was that you asked her several times during 25 February 2009 to tell you what had happened, and that eventually she told you that the sex was consensual.
[9] Your lawyer, Ms Pecotic, put it to Tausilia several times that this was a lie and that Tausilia consistently told you that Mose had raped her. In Tausilia’s evidence she insisted she was telling the truth and that during the day on 25 February she told you the sex was consensual.
[10] What you were told was important because one matter the jury was going to have to consider was what you understood when you went to see Mose later that day.
[11] At approximately 7 pm on 25 February, at your request, your brother, Fereti, drove you to the house where Mose was staying. That house was at 142 Rowandale Avenue, and was occupied by Mr and Mrs Pouvi and their three children. Mose was staying in a garage at the property.
[12] Fereti’s evidence was that you were your usual, calm self during the trip to
142 Rowandale Avenue.
[13] On arrival there you got out of the car and walked to the garage at the rear of the property.
[14] You told the Police that you confronted Mose in the garage, but that he was not apologetic, in your words showed a lack of respect, and that he threw a punch at you, to which you reacted. I am going to proceed on the basis that Mose did throw
the first punch and that he was not contrite as you might have expected, because this is what you said to the Police from the outset.
[15] You and Mose fought. You both moved into the carport near the house, where you punched him repeatedly. Mose fell to the ground – concrete in fact – face up and unconscious. Thereafter, he was incapable of defending himself or resisting you. You pulled him up by his collar so that his upper body was off the ground and punched him again several times before letting him fall back to the concrete. Then you kicked him, and stomped on his head, repeatedly and forcefully and you did this even though you knew he was out cold.
[16] One of Mrs Pouvi’s children witnessed part of the assault. Mrs Pouvi came outside when she heard her children screaming, rushed them inside and shouted at you several times to stop. You did not.
[17] Fereti’s evidence was that he heard screams after about five minutes, that he got out of the car to see what was going on, that he then you into the car and drove off. Fereti’s evidence was that you would not speak on the return journey, but right at the end of that trip you told him that Mose had raped Tausilia.
[18] Mr Aiono, I am going to proceed on the basis that your attack on Mose was a violent and brutal assault and that it lasted about five minutes. It must have been ferocious because of the blood on the weatherboards of the house and on the car that was in the carport. The worst aspect of it was that you stomped on the face of someone who was unconscious and lying on concrete. No-one could come through such an incident without terrible injury at the very least.
[19] There was some suggestion in Mrs Pouvi’s child’s evidence – only some and it was inconsistent – that he saw you hit Mose with a rock. Some of the photos do show a lump of concrete in the carport but there was no evidence that it had been used in the assault. I propose to proceed on the basis that you did not use a weapon.
[20] An ambulance and the Police arrived. Mose was “virtually dead” on their
account. Subsequent examination showed that he could not have survived the
injuries you inflicted. Amongst other things Mose had a fractured collarbone, jaw and eye socket. The base of his skull had also been fractured, and that is an injury, as Crown counsel reminded me, which it takes considerable force to inflict because the base of the skull is one of the strongest bones in the body.
[21] Mr Aiono, you accepted from day one that you had inflicted the injuries that
caused Mose’s death.
[22] But your case was that you lacked murderous intent, and so you were guilty of manslaughter, not murder.
[23] You also relied on the partial defence of provocation, part of your case on that matter being that you believed Mose had raped your wife, that Mose had thrown the first punch and that those matters combined had caused you to lose the power of self control. These events occurred when the legal defence of provocation was a partial defence to murder.
[24] If the jury had accepted that you acted under provocation you would have been found guilty of manslaughter. But the jury concluded that you were guilty of murder and so could not accept that you had made out all the elements of the partial defence of provocation. I accept the submissions of the Crown and defence that this is a case not of intentional killing, not a case where you set out to kill Mose, but where you assaulted him in a manner that you must have known carried a very real and substantial risk that you would kill him.
[25] A considerable amount of time at trial was taken up with the issue of whether, at the time you arrived at 142 Rowandale Avenue, you believed Mose had raped Tausilia or whether you had been told the sex was consensual. The Crown has also referred to that matter in their submissions on sentencing, as has the defence. At the end of the day Mr Aiono, I do not think it is necessary to come to a final conclusion on that issue. My view is that Tausilia probably did tell you the sex was consensual, but quite frankly she was so prone to saying one thing one minute, and another the next, you may not have known what to believe. And, of course, Mose was substantially older than her and you may have expected more from him in the
circumstances, given that he was a close friend to whom you had shown considerable generosity.
Victim Impact Statement
[26] I have read the victim impact statement made by Mose’s cousin, Lanu Tasa as a spokeswoman for the family. Ms Tasa tells me that Mose was a valued member of the family, and a source of substantial emotional and financial support. His family feel his loss very keenly. Despite this, they say they forgive you and do not wish your family to feel that they are responsible for your actions. They express the hope that you will learn from these terrible events and obtain some assistance to control the anger and temper that you obviously felt during this assault. I have to say that the attitude of Mose’s family is an extremely kind and generous one given the loss that they have suffered and the circumstances in which they have suffered it.
Personal circumstances
[27] There is no doubt, Mr Aiono, that it is a tragedy that you are here today to be sentenced for murder.
[28] You are 37, and a member of a large and well-respected family in Western Samoa. I have read the many letters provided to me in support of you. They include letters from your mother, other family members and many friends and all of them speak of someone who is loved, who is reliable, popular and kind, and above all, not prone to violence.
[29] The essence of the letters as your counsel as said is that your behaviour that night was wholly out of character. Aside from one prior conviction – which I note was for male assaults female in 2007 – you do have a clear record and I propose to put that conviction to one side in sentencing you.
[30] It is clear that you regret what you have done and you miss Mose a great deal. An ifoga, a formal apology in accordance with Samoan cultural custom, has been given, to show your remorse and as an act of reconciliation. Some reparation has
also been made and so I propose to give that some weight in sentencing you today as I am required to. It is clear to me that your family’s actions, on your behalf, were heartfelt.
Sentence
[31] I turn now to the sentence to be imposed on you and I am assisted here by the large measure of agreement between counsel.
[32] Three provisions – ss102, 103 and 104 – of the Sentencing Act 2002 are important.
[33] The first of these – s102 – requires me to impose a sentence of life imprisonment on you, unless it would be manifestly unjust to do so, having regard to your circumstances and those of the offence.1
[34] The Crown has submitted that a sentence of life imprisonment would not be manifestly unjust and your lawyer does not disagree with that.
[35] A sentence of life imprisonment is appropriate and it will be imposed.
[36] Secondly, I must order that you serve a minimum period of imprisonment. That period must be the minimum period necessary to hold you accountable for the harm that your offending caused to Mose and to the community; to denounce your conduct; to deter you and others from committing the same or a similar offence; and to protect the community from you.
[37] The minimum period must be at least 10 years. The question is whether more than that is required in this case to meet the purposes to which I have just referred, and other relevant purposes and principles of sentencing.
[38] In considering the length of the minimum period, I accept the submissions of both lawyers that this is not a case that requires a minimum period of imprisonment
of at least 17 years.2 Your attack on Mose, although brutal, was not of such a nature as to require that.
[39] The Crown submits that the minimum period of imprisonment that is required is 10 to 11 years. The defence submits that a minimum period of 10 years is sufficient.
[40] I have taken into account the nature of the assault and I have read the cases to which the Crown and your lawyer have referred me, to ensure that there is consistency to the extent that it is appropriate. I am troubled in particular by your conduct in kicking and stomping on Mose, even when he was unconscious. However, even if I were to consider that slightly more than ten years’ was required, I would, in the circumstances, reduce the period because of the provocation presented by Mose to whom you had been such a good friend. I also take into account the fact that there was no weapon, it was a confined period of time and as I have said, I accept that Mose threw the first punch.
[41] Taking all of those matters into account, I consider that a minimum period of imprisonment of 10 years is sufficient and that is the minimum period of imprisonment I intend to impose.
Result
[42] Please stand Mr Aiono. On the charge of murder, I impose a sentence of life imprisonment and order you to serve a minimum period of imprisonment of
10 years.
[43] Stand down.
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M Peters J
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