R v Ati HC Auckland CRI 2006-092-16228
[2008] NZHC 2272
•24 April 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-16228
QUEEN
v
SING-PIU ATI AND MOE VAGAIA
Hearing: 24 April 2008
Appearances: R Marchant for Crown
S Tait and D Niven for Prisoner Ati
K Brosnahan for Prisoner Vagaia
Judgment: 24 April 2008
Sentence imposed: Singh-Piu Ati: Murder
Life imprisonment with a minimum term of 10 years’
imprisonment
Moe Jim Vagaia:
Injuring with intent to cause grievous bodily harm
Two years and eight months’ imprisonment.
SENTENCING NOTES OF ASHER J
Solicitors:
Meredith Connell, PO Box 2213 Auckland
KP Brosnahan, Barrister, PO Box 3320 Shortland Street, Auckland
CB Wilkinson-Smith, Barrister, PO Box 276167 Manukau, AucklandS Tait, Barrister, PO Box 76538 Manukau City, Auckland
D Niven, Barrister, PO Box 109227 Newmarket, Auckland
I Jayanadan, Barrister, PO Box 76538 Manukau City, Auckland
R V ATI & VAGAIA HC AK CRI 2006-092-16228 24 April 2008
[1] Sing-Piu Ati and Moe Vagaia, you both appear this morning for sentence following your convictions trial on 11 March 2008. Mr Ati, you were found guilty of murder. The maximum penalty for murder is life imprisonment. Mr Vagaia, you were found guilty of injuring with intent to cause grievous bodily harm. The maximum penalty for that crime is ten years’ imprisonment.
[2] There was little issue as to the facts at the trial and there has been little issue at this sentencing hearing. The night in question commenced and proceeded in an unexceptional way for all those involved. It was a night of socialising and drinking. A group including you, Mr Ati and you, Mr Vagaia, left the house at which you had been having a quiet party because it was getting late and there were children there. You went to a carpark at the local rugby club to continue drinking and socialising.
[3] The deceased, Tolo Magele Pelenise Tofa, who had not been at the earlier party, joined your group at the carpark. He wanted one of the group, his girlfriend, to come home. His presence led to some argument and then an outburst in which your girlfriend, Mr Vagaia, got very angry with Mr Tofa. She wanted him to leave. She screamed loudly at him and there were some movements between them which could be seen as indicating that there might be a physical exchange. I should add that Mr Tofa did not do anything that warranted this extreme outburst.
[4] In any event, your girlfriend’s screaming at Mr Tofa immediately attracted your attention, Mr Vagaia, and yours, Mr Ati. You both then came down off the nearby deck on which you were sitting with some others drinking beer and approached Mr Tofa. There might have been a very short interchange but there was no doubt that you, Mr Vagaia, then instigated an attack on Mr Tofa by approaching him holding a small bottle of Steinlager.
[5] It is not clear from the evidence whether the beer bottle was full or empty. You smashed the bottle on Mr Tofa’s head. As it smashed bits of glass fell off it, and as your hand continued downwards from the smashing motion, scratches were inflicted on the side of Mr Tofa’s face. These can be properly described as scratches and were not deep cuts. They did not indicate any thrusting of the bottle. I take the
view, consistent with the evidence of the pathologist, that they arose from the splintering of the bottle when it struck Mr Tofa’s head rather than any stabbing motion to the face.
[6] Following this assault, Mr Vagaia, you discarded the bottle and proceeded to punch Mr Tofa, some punches being to the head. At this stage Mr Tofa made some effort to defend himself and retaliate, but there is no doubt that his actions were no more than the understandable reaction of a person trying to stop an assault. There was no indication that any of your punches caused any particular injury.
[7] In the meantime you, Mr Ati, came around the back of Mr Tofa and started to stab him with a pocket-knife that you had on your person. You stabbed Mr Tofa eleven times, both in the back and on the front. The majority of these stab wounds were shallow, although one to the bottom of the chest was deep and serious enough to penetrate into the abdomen and to inflict a small wound on the liver. The fatal wound was a stab to the neck, which severed Mr Tofa’s jugular vein. Mr Tofa then staggered away from the fight and collapsed and died approximately 60 metres away from the scene of the fight down a path leading through the park.
[8] You both then left with the rest of your group. It does not seem that anyone was then aware that deadly wounds had been inflicted on Mr Tofa. It was some time later that relatives discovered Mr Tofa’s body and the police were called. You were both arrested during the following day. You, Mr Vagaia, were aware that there had been a death as a result of the assault. You said to your brother that morning that you had done something stupid the night before stating “life in prison”.
Submissions
[9] In relation to you, Mr Ati, the Crown submits that the Court must impose a sentence of life imprisonment and order that you serve a minimum term of imprisonment of no less than ten years. The Crown does not suggest that the circumstances justify the imposition of a minimum term of imprisonment greater than that period. Given the very clear directives that are set out in the Sentencing
Act 2002, it is not surprising that your counsel, Mr Tait, in his submissions, reaches the same conclusion as the Crown.
[10] There is, however, wide disparity in the submissions of Crown and defence in relation to you, Mr Vagaia. The Crown submits that the appropriate starting point for your sentence is five to six years’ imprisonment. In contrast your counsel, Mr Brosnahan, submits that the appropriate range is for the starting point is two-and- a-half to three years imprisonment, with an end sentence of two to two-and-a-half years’ imprisonment.
[11] I propose sentencing you first, Mr Ati, given that you have been convicted of murder. I will then deal with you, Mr Vagaia.
Mr Ati
[12] Section 102(1) of the Sentencing Act 2002 provides that an offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust. There is no submission that it would be manifestly unjust in this case to sentence you to life imprisonment, and rightly so.
[13] Section 103(1) provides that if a court sentences an offender convicted of murder to imprisonment for life it must order that the offender serve a minimum period of imprisonment under that sentence.
[14] Section 103(2) provides that that minimum term must be not less than ten years and must be the minimum term of imprisonment that the Court considers necessary to satisfy the various purposes set out in (a) to (d). There is no suggestion that s 104 which relates to higher minimum periods, applies.
[15] In terms of assessing the culpability of this offending I note a number of factors. There is no doubt that the event was spontaneous and arose from an unfortunate situation that had developed. There was some basis for you both to perceive, initially as least, that Mr Tofa had somehow mistreated Mr Vagaia’s
girlfriend. I do not consider that what happened could be properly regarded as provocation. Mr Tofa had done nothing wrong, and in any event the fact, Mr Vagaia, that your girlfriend was very angry with Mr Tofa did not remotely warrant your attacking him. However, the incident must be seen in the light of this background.
[16] Mr Ati, you have not offered any explanation as to why you decided, while Mr Vagaia was punching Mr Tofa, to approach him from behind and start stabbing him. It is a matter of great concern that young men like you, Mr Ati, should carry knives with you on social occasions, and even more so that young men should have the motivation to use them in this way. The stabbing must be regarded as more serious than just an isolated movement. There were eleven wounds in total, and some deliberate effort must have been involved in raising the knife to stab Mr Tofa’s neck.
[17] As a consequence a life was lost. The evidence at the trial and the victim impact reports reveal that Mr Tofa was a gentle man well regarded by his family and in his wider group. A death like this leaves a gaping whole in our community and creates many more victims than just the deceased.
[18] I also consider the probation report which shows that you were at the time of the offending 18 years old. You are a young man without previous convictions. You had a regular job. You clearly have a very supportive family who are here in Court today. I record that your family have initiated a formal Samoan restorative justice process known as ‘ifoga’ and have presented their apology to the family together with gifts by way of consolation and remorse. You have strong ties with your family and your church and your family’s letter describes your quiet manner, good sense of humour and family background. This background makes it even harder to understand why you were carrying a knife that night and why you so viciously attacked Mr Tofa. What is clear is that this murder has caused grief and suffering not only in Mr Tofa’s family but in yours as well.
[19] I have no doubt about the genuineness of that grief within your family, Mr Ati. However, I do express some concern at your response to the death and to
your conviction. The probation report reveals that you still do not accept that you inflicted the wound that killed Mr Tofa. It is going to be essential for your complete rehabilitation that you do learn to accept this.
[20] I take all these factors into account when I turn to the question of the minimum term of imprisonment. Obviously various factors can be balanced against others. The nature of the offending must be considered together with your youth and apparent good character. In the end, given the directive nature of s 103(2) I consider that the appropriate minimum term of imprisonment is a term of ten years, and that is the minimum term that I will impose.
Mr Vagaia
[21] I have already set out the facts. All counsel have referred extensively to the Court of Appeal decision of R v Taueki [2005] 3 NZLR 372, which gave guidance on sentencing in relation to serious violent offending. The Court of Appeal set out three bands of offending and a list of factors that a Court should consider when assessing the appropriate band and starting point.
[22] Mr Marchant for the Crown submitted that the offending fell within band two of Taueki, while your counsel, Mr Brosnahan, submitted that it fell within band one. R v Taueki was a case involving causing grievous bodily harm with intent to cause grievous bodily harm. That offence carries a 14-year maximum term of imprisonment, while the current offence carries a ten-year maximum term. Any application of R v Taueki and the bands set out therein must be adapted to reflect that difference in the maximum penalty.
[23] I have already set out the facts of the offending. There are three factors that could be seen as falling within the features listed in R v Taueki. The first is the use of a weapon, here the use of the bottle. The second is the attack to the head. The third is that there were multiple attackers. In R v Taueki at [36] it was stated that where no aggravating features are present, a starting point at the bottom end of band one would normally be called for. Where one or more of those aggravating features are present, a higher starting point would be required.
[24] Impulsive street attacks not involving the use of weapons were stated to be an example of the band one type of offending. A concerted street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene was said to be an example of an offending towards the lower end of band two, although a higher starting point would be appropriate if it involved blows to the head.
[25] I have been referred to a number of cases by Mr Brosnahan which have involved attacks to the head with bottles. In relating these cases to R v Taueki it must be borne in mind that they on occasions involved offences of less gravity and carried lesser maximum penalties. In R v Ufagalilo CA299/01 5 December 2001, where a half-pint glass was smashed and then pushed into the face of the victim causing severe lacerations a starting point of four years was considered appropriate by the Court of Appeal. The charge there was disfiguring with intent to cause grievous bodily harm and involved a 14-year maximum. In R v Tuaimalo HC AK CRI-2006-092-11901 12 December 2007, Venning J, where the charge involved a ten-year maximum and the victim was hit twice in the back of the head with a beer bottle, a starting point of two-and-a-half years’ imprisonment was adopted.
[26] While the present offending involved three aggravating features, it is not appropriate to use some formulaic approach in deciding on the appropriate band. It is necessary, as the Court of Appeal stated in R v Taueki, to assess the gravity of these particular features. None of the aggravating features that I have mentioned was the worst example of its type. The weapon, which was an unbroken beer bottle, was less immediately lethal than a knife or a steel baton, for example, although I accept Mr Marchant’s point that at its worst it could still cause very serious injury or even death. The sad fact is, however, that assaults often feature more dangerous weapons and I must take that into account.
[27] While there was an attack to the head it was a single blow towards the top of the head which while it caused serious bruising did not break the skin or injure the skill. It was not aimed at the more vulnerable face. Further, while more than one person was involved in the attack, it could not be seen as a concerted gang attack. You, Mr Vagaia, attacked on your own and there was no indication that you intended
that Mr Ati should join in. It is not clear that you were even aware that Mr Ati had joined in.
[28] I consider that this offending falls within band one of R v Taueki. For the reasons that I have set out it falls somewhere towards the middle of band one. I propose to follow the approach of Wild J in Gage v Police HC WN CRI 2006-485-
11 16 May 2007 and recalibrate the sentencing range for the band, to take into account the ten rather than 14-year maximum. The band one range so calibrated is two years and one month to four years and three months’ imprisonment. I would place this offending somewhere near the middle of that range. I consider the appropriate starting point to be three years and three months’ imprisonment.
[29] I now turn to matters relating to you, Mr Vagaia, personally. Again, like Mr Ati you come from a close and supportive family who are here today. You also were young at the time of the attack, being 19 years old. Unlike Mr Ati you have some previous convictions for minor offending for which you received fines. Although one conviction was for possession of an offensive weapon, there is no indication of any history of violence. You have had some employment but also have had a period of unfortunate involvement with a gang known as ‘the Bloods’, although you have since turned your back on that. The pre-sentence report is extremely supportive of you and I have received a large number of statements from family supporters and from you, where you have expressed your regret and written a letter to the family of Mr Tofa.
[30] I have absolutely no doubt about the sincerity of your remorse. Indeed it was evident in your remark to your brother the morning after Mr Tofa’s death. You advised the probation officer that up until the depositions hearing you believed that you alone had been responsible for Mr Tofa’s death. You have attended a large number of courses where you have endeavoured to deal with violence and drinking issues. I am persuaded from the material I have been given that you have genuinely changed the course of your life. You have not sought to minimise what you did and you have accepted the jury verdict. I take into account your relative youth, your remorse and your rehabilitative prospects. I consider that some appreciable discount
on the sentence should be given to recognise these features. I consider that the proper final sentence is a sentence of two years and eight months’ imprisonment.
[31] Could you both stand up please.
[32] Mr Ati, you are sentenced for the crime of murder to life imprisonment with a minimum term of ten years. Mr Vagaia, you are sentenced for the crime of injuring with intent to cause grievous bodily harm to two years and eight months’ imprisonment.
[33] Mr Ati and Mr Vagaia, what happened on the night of 17 November and the morning of 18 November 2006 has changed your lives forever. Mr Tofa lost his life as a consequence of your actions, Mr Ati. That is a tragedy in itself and it has also left his family permanently affected. What you have done has also left your families permanently affected. Your families have to live with the grief and shame of what happened that night, and you both must live with what happened that night for the rest of your lives.
[34] I have no doubt that both of you are well able to lead very good law-abiding lives in the future. You are both going to be in prison for some time, particularly you Mr Ati. You are clearly able to be good members of your community. I do not ask you when you get out of prison to put this behind you because you never can. What has happened can never be put to one side. But you must live with it, and you can be good members of your community hereafter.
[35] Stand down.
………………………… Asher J
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