R v Folimatama HC Dunedin CRI-2011-012-002837

[2011] NZHC 1175

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995

AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-002837

REGINA

v

JEROME RAHIRI FOLIMATAMA

Appearances: R Smith for Crown

A Stevens for Prisoner

Judgment:      30 September 2011

SENTENCE OF HON JUSTICE FRENCH

[1]      Jerome  Rahiri  Folimatama,  following  a  plea  of  guilty  you  appear  this morning for sentence on a charge of attempted murder.  The maximum penalty for this offence is 14 years’ imprisonment.

The facts of the offending

[2]      The victim is your former partner.   On 3 July this year you were both at home.   You had been in a relationship for approximately a year and had a young baby.  The household also included a five year old boy from the victim’s previous

relationship.

R V FOLIMATAMA HC DUN CRI-2011-012-002837 30 September 2011

[3]      An argument developed between you and the victim which resulted in you retrieving a knife from the kitchen.  She fled outside and you pursued her.

[4]      Near the front door of the house you began stabbing her with the knife about the upper body area, inflicting multiple wounds to her torso, face and arm.  You then stabbed her in the left chest area, breaking off the handle of the knife, leaving the blade embedded in her body.

[5]      Having lost the ability to stab her with the knife, you then picked up an axe from a nearby shed.  You struck her multiple times around the head with the bladed end  of  the  axe,  fracturing  her  skull  and  exposing  the  brain  to  the  atmosphere. Leaving her lying on the ground, you went back inside, took the baby and left the property.

[6]      After you had gone, the little five year old came out of the house and saw his mother’s injuries.  He believed she was dead.  He alerted neighbours, and the police and ambulance were called.

[7]      The victim was rushed to hospital and underwent emergency surgery.   Her head injuries were life-threatening and she was lucky to survive.  Both sides of her skull were fractured and the brain exposed, the left side of her skull being depressed into the brain area itself.  She received multiple stab wounds, including to her neck, breast, elbow and cheek, which also caused the fracture of three teeth.  Other injuries suffered included a perforated eardrum and impaired vision in both eyes which may be permanent.

[8]      When interviewed by the police you admitted to the attack, saying that you reacted to taunts from the victim and had “lost it”.

Reports

[9]      Like me, you will have heard this morning the victim read out the victim impact report.  The victim says that she now has a very long road to recovery ahead of her, involving yet more surgery and ongoing rehabilitation.   She will have significant permanent scarring and will also require a plate fitted in the back of her

head.  She has problems with fatigue and difficulties with her right elbow where the bone was chipped.  She sees a psychologist and occupational therapist weekly and can no longer live independently in the foreseeable future, as well as being currently unable to drive.

[10]     Understandably, there has also been significant emotional damage, and that, she says, is something she has found particularly difficult to cope with.  She worries, too, about the long-term effects on her five year old son after the horrific sight that must have greeted him when he went outside.  He is now seeing a psychotherapist.

[11]     In addition to the victim impact report, I have before me a pre-sentence report, a significant number of character references, as well as a letter of apology that you yourself have written.   I note that you offered to attend a restorative justice conference, as well as writing this letter of apology.

[12]     The pre-sentence report tells me you are 18 years of age, a father of two children.  You come from a loving, close-knit family and have strong support from them, your church and friends.  At the time of the incident you were working as a scaffolder and seem to have been in employment ever since you left school.  By all accounts you are a good worker and regarded highly by your employer.

[13]     You have four previous convictions in the District Court, one of which is for an assault against a parking warden and one for fighting in a public place.  You have in the past undertaken an anger management programme.

[14]     You explained the events of 3 July to the report writer as resulting from arguments that had been going on for several days.  You say the victim was upset at you for not sticking up for her to her brother.  Tensions escalated.  You claim she belittled your sexual prowess and taunted you with suggestions that you should follow the example of a friend of yours who had recently committed suicide.

[15]     In the interview you expressed a degree of remorse for your offending and said you felt guilty and wished things had turned out differently.   You are said to

have acknowledged, too, that the events are likely to have had a detrimental and traumatic effect on the children, especially the five year old boy.

[16]     In  the  view  of  the  report  writer  you  have  a  moderately  high  level  of motivation to change.  You are willing to address the factors which have led to your offending,   which   have   been   identified   as   your  propensity  to   violence  and relationship difficulties.  You say you do not want to be a violent person, but admit that you have a short fuse.  You have family support for any treatment that you can undertake to help resolve this tendency to violence.

[17]     The report also says you have no harmful patterns of alcohol or drug abuse, saying that you were previously a heavy user of cannabis, but that you had given it up prior to your remand in custody.

[18]     As Mrs Stevens has pointed out to me, the writers of the references speak of you in very positive terms.  They describe you as hardworking, helpful, respectful and polite.  The recurring theme is that, based on their experience of you, this is out of character.

Sentencing analysis

[19]     I turn now to explain the sentencing decisions that I am required by law to make today.

[20]     First,  I  am  required  to  apply  we  call  the  purposes  and  principles  of sentencing.  These are contained in the Sentencing Act 2002.

[21]     As regards the purposes of sentencing, the key purposes in this case are first to hold you accountable for the harm you have done to the victim.   Secondly to denounce violence on behalf of the community – by that I mean that I must express the community’s complete and utter rejection of the sort of serious violence you inflicted on your victim.  Another key purpose is to deter you from doing anything like this again and to deter others who might be like-minded.  Another purpose at issue in this case is the need to protect the public.

[22]    As regards the principles of sentencing, the key principles of particular relevance in this case are the need for me to take into account the seriousness of this offending, the need for me to be consistent with other cases involving similar fact situations, and also the need to impose the least restrictive outcome appropriate in the circumstances.

[23]     So those are the key principles and purposes of sentencing.

[24]     In applying those principles and purposes, I am required to follow what has been loosely called a two-stage model.  In the first stage I have to fix what you have heard the lawyers talk about this morning as the starting point.  All that means is the sentence which reflects the culpability or the blameworthiness of your offending. That is the first stage, fixing the starting point.  The second stage is that, having fixed the starting point, I am required to consider whether there should be any adjustment to it, either upwards or downwards on account of your personal circumstances as distinct from the circumstances of your offending.

[25]     Turning then to the first stage, fixing the starting point.

[26]     Counsel agree that on this I should be guided by a Court of Appeal decision which  sets  out  bands  of  offending  for  crimes  like  this  one  involving  serious violence.[1]

[1] R v Taueki [2005] 3 NZLR 372

[27]     The Crown says that based on this Court of Appeal decision that you come within band 3 and that an appropriate starting point is 11 to 12 years’ imprisonment.

[28]     Mrs Stevens agrees that it is open for me to place you within band 3, but says that because of your youth and the element of provocation, the starting point should be  lower.     She  advocates  a  starting  point  in  the  vicinity  of  seven  years’ imprisonment.

[29]     Mrs Stevens has emphasised to me the context of your offending, noting that you were working long hours, you and the victim were both young and carrying

financial and emotional burdens which were too heavy for you.   She emphasises your immaturity and also says your use of Kronic may have contributed to the tension which had been building up.  The suicide of your friend was something that was still very raw.

[30]     I identify the aggravating features of your offending as being:

a)        The extreme violence.

b)        The serious injuries you inflicted.

c)        The fact that you used two weapons.

d)       The fact you attacked the victim’s head.

e)        The prolonged nature of the attack. f)   The vulnerability of the victim.

g)       The fact you just walked away without getting help, knowing that there was a five year old child still in the house who, although he did not witness the actual physical assault, must have heard the noises of it and was then left with a horrific sight.   He had seen you get the knife in the first instance, and it was no wonder that he believed his mother must be dead.

[31]     These factors undoubtedly place you in the middle of band 3, and on the basis of some of the cases,[2]  that means a starting point of between 11 and 12 years’ imprisonment.  The difficult question is to determine what allowance, if any, should be made for the provocation.

[2] Rikihana v R [2010] NZCA 405; R v Nelson HC Rotorua CRI-2004-077-15577, 16 August 2005;

R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.

[32]     Perhaps  mercifully,  the  victim  has  no memory of what  happened  and  is therefore not in a position to dispute your version of events.

[33]     The Court of Appeal has held that provocation may justify a lower starting point in appropriate cases.  The Court however has also said it is not simply enough to claim to have been incensed by the actions of the victim or another.  Rather, the sentencing Judge will need to be satisfied there was serious provocation which was an operative cause of the violence inflicted by the offender and which remained an

operative cause throughout the commission of the offence.[3]

[3] R v Taueki.

[34]     As Mr Smith points out, verbal taunting is at the lower end of the scale, and given  your  decision  to  fetch  the  axe  and  continue  the  assault,  it  cannot  have remained an operative cause throughout the commission of the offence.

[35]     My assessment, therefore, is that even taking your youth and the pressures into account, the degree of provocation must be given limited weight.  I consider a more  principled  approach  is  to  take  account  of  your  youth  at  stage  2  of  the sentencing analysis, rather than for the purposes of stage 1.

[36]     Having regard to the key aggravating factors I have identified, the Court of Appeal decision and other comparator cases,[4]  I consider that an appropriate starting point is a term of imprisonment of 10 and a half years.

[4] Rikihana v R; R v Nelson; R v O’Kane; R v Lologa HC Auckland CRI-2009-092-16953, 30 November 2010; R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008; R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006; R v Khan CA83/02, 4 December 2002.

[37]     I turn then to stage two – that is factors relating to you personally.

[38]     There are no aggravating factors relating to you personally.  While you have previous convictions, they would not in my view justify an uplift.

[39]     As  regards  mitigating  factors  relating  to  you  personally,  Mrs  Stevens identifies the following:

[i]       your early guilty plea;

[ii]      your remorse;

[iii]     your youth; and

[iv]     your previous good character.

[40]     While I agree that there should be no uplift or increase on account of your previous convictions, equally I am not prepared in light of those convictions and your two appearances in the Youth Court for violence to give you a credit for good behaviour.  You are, however, in my view entitled to a credit for all the other matters raised by Mrs Stevens.  Your guilty plea was early and it spared the victim the ordeal of a trial.   Balanced against that is the strength of the Crown case.   In those circumstances I consider a 20 per cent discount is warranted.

[41]     I accept further that you are genuinely sorry about the dreadful harm you have caused, and on account of that and your age I reduce the starting point by a further 20 per cent.

[42]     That leads me to an end sentence of six years and four months.

[43]     The Crown does not seek a minimum period of imprisonment, and I do not intend to impose one.  There are prospects of rehabilitation.  You have not been to prison before, and you are young.

Sentence

[44]     Jerome Rahiri Folimatama, you are convicted of the charge of attempted murder and you are sentenced to a term of imprisonment of six years and four months.

[45]     I order that the weapons you used in the attack are to be destroyed.

[46]     I also must now give you a first warning under the three strikes legislation. [47]     Because of this conviction for attempted murder, you are now subject to the

three strikes law and I must give you a warning about the consequences, about what

will happen, if you commit another serious violence conviction.  You will be given a written notice which sets out what the serious violence offences are.

[48]     First, if you are convicted of any one or more serious violence offences other than murder committed after this morning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[49]     If you are convicted of murder committed after this morning then you must be sentenced to life imprisonment without parole unless it would be  manifestly unjust to do so.  In that event, the Judge must sentence you to a minimum term of imprisonment.

Solicitors:

Crown Solicitor’s Office, Dunedin

A Stevens, Dunedin