R v Fotuaika HC Wanganui CIV 2008-083-000073

[2008] NZHC 2637

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2008-083-000073

QUEEN

v

TENI FOTUAIKA

Hearing:         22 October 2008

Counsel:         H C Mallalieu for the Crown

M J Bullock for the Prisoner

Judgment:      22 October 2008

SENTENCING NOTES OF MILLER J

[1]      You appear for sentence for the attempted murder of your former partner on 5

January 2008.   I will tell you at the outset that your sentence will be five years imprisonment.  You may be seated if you wish while I read the rest of my sentencing notes.

[2]      The facts are that you and your partner had separated two days previously, after a relationship of some 14 years duration.  You have two children, aged 9 and

10, and they had been placed by order of the Family Court in the interim custody of her mother, with whom your partner was living.  You were having difficulty seeing the children, and were distressed that they did not want to live with you.  You had

been the custodial parent for some time until 21 December 2007 and had been on the

R V TENI FOTUAIKA HC WANG CRI 2008-083-000073  22 October 2008

Domestic Purposes Benefit.  It is plain that contact with the children was genuinely important to you.  You had received residential treatment for depression in August.

[3]      You wanted your partner to force her mother to give the children to you, contrary to the orders of the Family Court.  In the days and hours before the offence you were very persistent in these attempts, constantly visiting or talking to her about it.

[4]      Angered by her refusal to go along with your demands, you went to her workplace, having a steak knife in the car, and confronted her.   You had been drinking.  When she again refused to accede to your demands, you went to the car and fetched the knife.  You attacked her with it, beginning with a blow to the head. It was a frenzied attack, resulting in some 14 stab wounds to the back, neck, throat and chest.  She also suffered severe cuts to her hand.  Those were defensive wounds. You continued despite her cries for help.  As Mr Mallalieu says, it was a very serious attempt to kill.  You ceased your attack, however, when she told you that she was dying.  You then ran to the office to summon help and sought to comfort her.

[5]      I accept that you acted in a state of considerable emotional distress, a result of your belief that the victim and her mother were conspiring to keep your children from you.  You were immediately and deeply remorseful, and that extended to your early guilty plea and acceptance of responsibility.

[6]      The victim’s injuries were life threatening.  She lost a significant amount of blood, and required chest drains and blood transfusions.  She believes you tried to stab her in the carotid artery, which is how pigs are slaughtered in Tongan custom. She has undergone a great deal of medical treatment and counselling, and fortunately made a good recovery.   However, she suffers permanent damage to two fingers which prevents her from playing the guitar, an activity from which she gained much enjoyment.  Nonetheless she now believes it is important to help you maintain links with your children.   She has forgiven you, no longer fears you, and visits you in prison.

[7]      The  pre-sentence  report  records  that  you  are  aged  41,  and  of  Tongan ethnicity.  You moved to New Zealand in 1998, and it is a matter of regret that you have no extended family support here.   Until  your arrest  you had  worked  as a labourer.  You explained that you had been extremely stressed and depressed as a result of the separation, and had been undergoing treatment for depression.   The probation officer records that you expressed remorse, recognising the impact your offending has  had  on  the victim,  her  mother  and  the  children.    You  have  two previous convictions;  one, for common assault in 2002, involved the same victim. Nonetheless you are identified as being at low risk of further offending.  You present with high and genuine motivation to address your offending.

[8]      There is no tariff case for attempted murder, but when serious violence is involved it is now usual to follow a guideline judgment called Taueki.1   I propose to sentence by reference to that case, recognising however that culpability in attempted murder is a function of intent to kill and proximity to success, as well as the nature and degree of violence used.

[9]      I agree with Mr Mallalieu that the offence was characterised by extreme violence, serious injury, use of a weapon, and attacking the head.   These characteristics were present in serious form.   There was also an element of premeditation.   The fact that violence is domestic in nature does not reduce its seriousness in any way.   By way of example, the Court in Taueki referred to a premeditated domestic assault involving serious and lasting injury.  Where a weapon was involved, particularly where it was brought to the scene, the starting point could be expected to be towards 10 years.

[10]     There are very similar cases of attempted murder in which a starting point of

9 years or more has been adopted.2   By analogy with these cases, I do not accept the Crown’s submission that a starting point of 10 to 12 years is necessary in your case. There are also cases in which markedly lower starting points have been adopted

1  R v Pona HC AK CRI 2006-092-2531 13 March 2007, R v Amohanga HC HAM CRI 2006-019-

002933 6 March 2007, R v Rawiri HC CHCH CRI 2005-009-13229 7 December 2006, R v Masoe

HC WN CRI 2006-091-352 15 September 2006

2 Masoe and Pona, above, R v Nelson HC ROT CRI 2004-077-0015577 16 August 2005

despite similar features such as the use of a weapon to inflict near-lethal injuries.3

What distinguishes these cases may be an  element of diminished responsibility, provocation or victim forgiveness.   In other cases those factors have led to very substantial reductions from the starting point.4

[11]     You acted in a state of high emotional distress, and had been led to that state by the separation and loss of contact with your children.  The difficult question is whether any allowance ought to be made for that in sentencing.  Allowance can be made for diminished responsibility or provocation only where it reduces culpability. In some cases no allowance can be made because the source of the offender’s anger or distress is not compatible with social norms, as in the case of men who refuse to accept loss of control over their former partners.  In your case, it cannot be said that the victim is in any way responsible for your state of mind, nor did she initiate the violence in any way.  There are indications in the materials before me that you are a controlling person.  But the Crown accepts that your anger was not directed towards her in this case.   It is understandable that you would find loss of contact with the children distressing, particularly since you had been the custodial parent for some time before this incident.  You were depressed.  A modest allowance should be made for these matters.  In addition you must receive full credit for your guilty plea and remorse.  I don’t think that victim forgiveness is a significant consideration in this case.

[12]     I propose to adopt a starting point of nine years imprisonment taking into account all aggravating features of the offence, and to give you credit for an element of diminished responsibility as well as your guilty plea and remorse.  As I have said, your sentence will five years imprisonment.

[13]     The Crown seeks a minimum period of imprisonment.  I decline to order one. The factors that Mr Mallalieu points to have been taken into account in the sentence, and there is no further need for denunciation or deterrence having regard to your remorse, your distress at the time, and your prospects of rehabilitation, which must be regarded as good.  Mr Mallalieu invites me to conclude that a minimum period is

3 Amohanga, Rawiri, above

necessary because you continue to pose a risk to your partner and children.  If there were evidence to that effect that would certainly justify a minimum period, but I do not think that from the material before me justifies that conclusion.   The offence occurred at a time of great stress in your life, and the probation officer considers you are at low risk of further offending.  I do not think that there is sufficient reason to suppose that you will present such a risk at the end of your sentence.  I record for the benefit of the prison authorities that you will benefit from counselling and treatment while in prison.

[14]     You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for the Crown

M J Bullock, Wanganui for the Prisoner

4  R v Khan CA83/02 4 December 2002, R v S HC TAU CRI 2007-070-2622 10 December 2007,

Churcher v R CA356/96 5 March 1997