R v Fungavaka
[2015] NZHC 2761
•6 November 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2013-029-761 [2015] NZHC 2761
THE QUEEN
v
VILIAMI ONE FUNGAVAKA
Counsel: BM O'Connor and CA Anderson for Crown
GNE Bradford, KW Barron-Afeaki SC, Tonga and H Coupe for defendant
Charge:
Murder
Plea:
Not guilty
Sentenced:
6 November 2015
SENTENCING NOTES OF FAIRE J
Solicitors: Marsden Woods Inskip Smith, Whangarei
To: GNE Bradford, Auckland
KW Barron-Afeaki SC, Auckland
H Coupe, Auckland
R v Fungavaka [2015] NZHC 2761 [6 November 2015]
Contents
Introduction ............................................................................................................[1] Facts .......................................................................................................................[4] Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002) .[16] Victim impact statements .....................................................................................[18] Approach to s 104 of the Sentencing Act 2002 ....................................................[20] Submissions for the Crown ..................................................................................[26] Submissions for the defendant .............................................................................[28] Aggravating factors relevant to the offending......................................................[34]
Mitigating factors .......................................................................................................
Personal circumstances [37] Pre-sentence report [41] Remorse [42] Discussion [43]
Result....................................................................................................................[47]
Introduction
[1] Mr Fungavaka, you appear for sentencing having been found guilty of murder following an eight week and two day jury trial.
[2] The mandatory sentence for murder is life imprisonment.1 Although I am going to sentence you to life imprisonment, I must first determine the minimum period of imprisonment that you should serve.2 The minimum period of imprisonment refers to the minimum amount of time you will be in prison before the Parole Board can consider if you are suitable for monitored release into the community.
[3] I acknowledge the presence of everyone here today. I have taken careful notice of the victim impact statements. They speak powerfully of the loss of a
mother, daughter, sister and companion. I will say more about this later. It is
1 Crimes Act 1961, s 172(1) and s 102 of the Sentencing Act 2002. This sentence applies unless it would be manifestly unjust to impose life imprisonment.
2 Crimes Act 1961, s 173(1) and s 103 of the Sentencing Act 2002.
important that everyone understands that I know that nothing I can do today will make up for the loss of Georgina Manuel. That is not what sentencing is about. My job, Mr Fungavaka, is to sentence you as the law requires.
Facts
[4] Mr Fungavaka, I will first outline the facts of your offending. In August 2013 you had been residing in Kaitaia for approximately 12 months. During that time you were in a relationship with the victim, Ms Georgina Manuel, who was 28 years old. Your relationship with her has been described as turbulent when consumption of alcohol was involved. The victim had a former partner serving a sentence of imprisonment, with whom she reportedly intended to reunite following his release.
[5] At the time of the offending, you were residing at 27 Allen Bell Drive, Kaitaia, together with the victim, her father, her two children, who were aged five and nine at the time, and your son, also aged nine at the time. On 20 August 2013, at approximately 7pm, you, the victim and her father were drinking at a residential address in Williams St, Kaitaia. You consumed about eight bottles of beer, five nips of vodka and two cans of bourbon.
[6] At approximately 9pm the victim’s father left the Williams St address on foot. The victim urged you to go after him and pick him up in your car. You complied with her request and drove around looking for the victim’s father. You were unable to locate him and returned to Williams St to pick up the victim so she could help you look for her father.
[7] You drove to Bonnetts Rd, off Pukepoto Rd, and located the victim’s father walking towards the Korner Dairy. You pulled up alongside him. The victim told her father to get into the car. The victim’s father refused to get into the vehicle and walked away. The victim became upset and got out of the vehicle to go after her father. She followed him along Bonnets Rd around the front of the dairy and turned left into Pukepoto Rd. In the meantime, her father crossed Pukepoto Rd.
[8] After the victim got out of the car to follow her father, you remained in the car. You followed the victim in your car and stopped it a short distance north of the
dairy. From your car, you got into a verbal altercation with the victim. As the victim was crossing Pukepoto Rd, she turned back towards your car and shouted at you to “fuck off” and to leave her alone, or words to that effect, and gave you the fingers.
[9] You accelerated your vehicle towards the victim and ran her down. Her body was thrown onto the bonnet of the car. She then dropped to the ground, lying still on the road, partly towards the opposite lane. You then accelerated off for a short distance and then made a u-turn at the intersection of Pukepoto Rd and Melody Lane, which is almost opposite Te Reinga Rd. Melody Lane is approximately 60m from the dairy. You drove back towards the dairy, observing the victim lying on the road. You aimed your car at the victim, and ran her over for the second time. You were driving at sufficient speed for the car to become airborne over the victim’s body. In the process of being run over for the second time, the victim’s body was caught under the vehicle and she was dragged underneath the car for a short distance.
[10] You then sped off. You looked back and saw that the victim was injured and lying on the road. You continued speeding towards Lake Rd.
[11] You then picked up your son, from the address on Williams St and attempted to take him to a friend’s address in Grigg St. On the way, you ran out of petrol and walked the rest of the way to Grigg St on foot. You and your son spent the night there.
[12] In the morning, shortly before 6am, you travelled to the Kaitaia Police Station, presumably to hand yourself in. You were not able to contact anyone there because it was closed, so you made arrangements with your friends to take your son to Auckland. You paid them for petrol and set off with them from Kaitaia at about
8:45am. You fell asleep on the way. Without your knowledge, your friends took you to the Whangarei Police Station.
[13] The victim was transported to Kaitaia Hospital after the incident and then airlifted to Whangarei Base Hospital. She died at 5:20am the next day from multiple blunt force trauma injuries. In particular, the victim’s injuries included:
(a) a brain injury sustained in the first impact which would have been fatal by itself;
(b)an injury to the liver sustained in the second impact, which would also independently have been fatal; and
(c) numerous further injuries including a butterfly fracture of the right thigh bone (received in the first impact when the victim was standing) with soft tissue having been torn away from muscle and compression of fat causing liquefaction in the area; broken ribs in the front, side and back of the ribcage; internal injuries to the chest, heart and abdomen (the injuries to the chest and abdomen were consistent with a crushing force being applied to that area); fractured skull, facial injuries; broken arms; a near amputated ankle, broken pelvis and numerous lacerations and bruises. The lacerations to the front, back and side of the torso were brush and imprint lacerations consistent with the victim being pushed into the road, and also dragged along it.
[14] At the initial interview with the police, you denied running over the victim. You explained that the first time the victim was hit by your car was because the victim ran towards you aggressively while you were attempting to return to Williams St, and that despite your efforts to avoid the victim, the car hit her leg. You explained that your headlights were not turned on and that you were drunk. You stated that after you turned around and drove back along Pukepoto Rd, you did not observe the victim but you suddenly felt like you ran something over. You stated that when you looked back, you thought you saw the victim lying on the road with a broken leg. You explained that you did not stop because you were afraid of the victim’s father.
[15] CCTV footage from the scene revealed that your headlights were on.
Purposes and principles of sentencing (ss 7 and 8 of the Sentencing Act 2002)
[16] The purposes of sentencing which the Court may take into account are to hold you accountable for the harm done to the victim by your offending; to promote
in you a sense of responsibility for, or acknowledgement of the harm; to denounce and deter such conduct and to protect the community from you.
[17] The principles of sentencing which the Court must take into account and that are particularly relevant to today’s sentencing are the gravity of the offending, including the degree of your culpability; the seriousness of this type of offence in comparison with other types of offences. I must impose the maximum penalty prescribed if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to you make that inappropriate; and I must take into account the general desirability of consistency with appropriate sentencing levels while I must also impose the least restrictive sentence appropriate in the circumstances. I must also take into account any circumstances particular to you personally and your personal cultural and family background.
Victim impact statements
[18] The victim’s father, mother, sister and mother’s partner provided lengthy victim impact statements. A victim statement was also prepared by the victim’s elder child, her daughter on behalf of the victim’s two children. They are aged 11 and 7. The loss of their mother is a particular tragedy for them. The victim impact statements detail the pain the victim’s family suffered, and still suffers, of her loss, and the ordeal of having to await and then sit through the lengthy trial. Many of the statements express anger that you expressed no remorse for your actions.
[19] Nothing I can say or do can ever replace their loss. They have lost a loved mother, daughter, sister, friend and companion. Nothing I say or do can change that, but that the sympathy of the Court is with them.
Approach to s 104 of the Sentencing Act 2002
[20] Section 103 of the Act provides that where an offender has been convicted of murder, and a sentence of life imprisonment would not be manifestly unjust, the Court must order that the offender serve a minimum term of imprisonment.
[21] Section 104 provides that the Court must impose a minimum term of imprisonment of at least 17 years to which that section applies. The Crown submits that s 104 applies in this case because the murder was committed with a high level of brutality, cruelty, depravity or callousness. The Court may impose a lower minimum period of imprisonment where a 17 year term would be manifestly unjust.
[22] It must be borne in mind that the purpose of s 104 is to require a very substantial minimum term of imprisonment for the most serious murders, and the words of the section must be construed in that light.3
[23] In R v Williams the Court of Appeal stated the two-step approach to determining cases to which s 104 may apply:4
[52] ... First the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders – that is, apply the Howse approach. In the course of doing so the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s
104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.
[53] The sentencing judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.
[54] Where the first step indicates that the appropriate minimum period of imprisonment is 17 years or more the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17 year minimum can be reduced whenever the Court considers that is appropriate. There is no warrant to interpret the
3 R v Williams [2005] 2 NZLR 506 (CA), (2004) 21 CRNZ 352 at [47].
4 R v Williams.
provision merely as a guide to judicial discretion. The question of whether the outcome of the assessment would make a 17 year minimum term manifestly unjust must also be approached in a principled way.
[24] Accordingly, I must first consider the degree of culpability in the present case with the standard range of murder cases by assessing the relevant aggravating and mitigating factors of the offending. If this first step indicates that one of the s 104(1) factors is engaged, the second step involves assessing whether a minimum period of
17 years’ imprisonment would be manifestly unjust.
[25] The test for manifest injustice is an overall assessment with reference to the circumstances of the offending, the offender and in light of the sentencing purposes and principles. The injustice must be clear, as the use of “manifestly” requires.5 Once a s 104 factor has been identified, it is only in exceptional circumstances that the minimum period of 17 years can be departed from.6
Submissions for the Crown
[26] The Crown makes two alternative submissions. The first is that the present case fits into s 104(1)(e), which applies where the murder was committed with a high level of brutality, cruelty, depravity or callousness. The Crown relies on the following factors to support its submission:
(a) The use of a 1.7 tonne V8 engine vehicle as a lethal weapon; (b) The murder occurred in the context of a domestic relationship;
(c) The force with which the vehicle hit the victim and dragged her for a short distance under the car;
(d)The injuries suffered by the victim, as each impact was independently fatal of the other;
5 R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA) at [121].
6 R v Parrish (2003) 21 CRNZ 571 (CA); R v Rapira.
(e) The cruelty of performing the u-turn and running over the victim for the second time;
(f) Murderous intent was attached to both impacts;
(g)The claim that you did not see the victim prior to the second impact is not supported by the available evidence:
(i) The victim was hit straight on, across the width of the vehicle;
(ii)The vehicle was under hard acceleration. Dr Stevenson’s analysis concluded that the vehicle was travelling at 64.5km/h, plus or minus 10.5km/h immediately following impact. Witnesses have described hearing squealing tyres as you performed the u-turn, the sound of the engine as the car accelerated back toward the victim, and the loud noise as the car hit the victim, lifting the front of the car in the air at the time of impact.
(iii)CCTV footage and witness evidence established that the vehicle’s lights were on; both dipped beam and fog lights;
(iv)Your admission to Ms Matiu that same night that you had run over the victim twice;
(v)Your comments to Ms Hau that same night that killing the victim was something you wanted to do because of the way the victim treated you and because she was going to leave you for her former partner.
[27] The Crown’s second submission is that even if the offending in this case does not engage s 104(1)(e), a minimum period of 17 years’ imprisonment should nevertheless be imposed due to the combination of aggravating factors that are present in this case. In particular, the Crown submits that the aggravating features of
the offending that support a starting point of a minimum term of imprisonment of 17 years are:
(a) the use of the vehicle as a weapon, against which the victim was powerless;
(b) the murder occurred in the context of a domestic relationship; (c) the vulnerability of the victim following the first impact;
(d)premeditation as evidenced by comments made to Ms Hau the next morning;
(e) the deliberate striking of the victim twice with the vehicle twice.
Submissions for the defendant
[28] Mr Fungavaka, your counsel submits that the circumstances of the case fall short of s 104(1)(e) and there is nothing that justifies an imposition of a minimum period of imprisonment greater than 10 years.
[29] Your counsel submits that sentencing should proceed on the basis of a factual scenario most favourable to the defendant. The most favourable factual scenario in your counsel’s submission is that your offending was a result of reckless driving, which caused the victim’s death following the first impact, and that any consideration relating to the second impact is irrelevant. Your counsel submits that because the Crown’s case at trial was that the first impact was due to reckless driving, and that the first impact by itself was fatal, it is possible the jury reached the guilty verdict after finding reckless driving, which would have made consideration of the evidence and intent behind the second impact unnecessary.
[30] Your counsel points to the evidence of Dr Stevenson to support the submission that the first impact was due to reckless driving. Dr Stevenson gave evidence that the first impact was most likely below 25km/h, and that impacts below
30km/h have less than 0.7 per cent chance of being fatal. In respect of the injuries
suffered by the victim as a result of the second impact, your counsel submits these are irrelevant as the jury likely would have reached the guilty verdict on the basis of reckless driving alone.
[31] Alternatively, your counsel submits that you did not see the victim’s body lying on the road before the second impact. As such, an argument that the offending involved a high level of cruelty, callousness and brutality cannot be supported. Your counsel submits that you were very intoxicated at the time, momentarily distracted by seeing the victim’s father at the corner of Te Reinga and Pukepoto Roads, and that it is unclear whether you saw the victim before the second impact.
[32] In response to the Crown’s allegations of premeditation, your counsel submits that statements made to Ms Hau were made in the context of moving to Auckland because of a breakdown in the relationship with the victim.
[33] In respect of mitigating factors relevant to you personally, your counsel submits that the Court should take into account that you visited the Kaitaia Police Station twice following the offending, although both times the station was closed. Your counsel submits you handed yourself in the following morning in Whangarei. He refers also to your diabetes, your participation and completion of seven rehabilitative courses while in custody, and your rekindled interest in Christianity, as part of which you now lead evening prayers for fellow inmates. Your counsel submits that you express deep remorse for what happened to the victim and her family.
Aggravating factors relevant to the offending
[34] Section 9 provides that the Court must take into account aggravating factors to the extent that they are applicable in the case. I find the following factors to be relevant:
(a) The offence involved violence and the use of a weapon, namely, a vehicle that was used to hit the victim twice with sufficient force for each impact to have been fatal independently of the other;
(b)The offence was committed while you were on bail for a charge of wilful damage. You were also subject to an active charge of failing to answer bail for failing to appear in relation to the charge of wilful damage;
(c) The victim’s death resulted from the severe injuries inflicted upon her by the two impacts. The first impact caused a brain injury which would have been fatal. The second impact crushed the victim’s liver, which would have also been fatal. In addition, the victim suffered extensive other injuries.
(d)The offence was committed with particular cruelty. The first time you hit the victim with the car she was knocked unconscious and injured onto the road. You kept driving. You then performed a u-turn a short distance away and accelerated directly at the victim, hitting her with the full breadth of the vehicle. The victim was dragged under the vehicle for a short distance, causing her even more severe injuries.
(e) While I consider the offending was opportunistic, in my view the two attacks were highly deliberate and thus a certain level of premeditation was present. Your counsel’s submission that the first impact was a result of reckless driving only is not supported by the evidence of Dr Glengarry and Mr Fletcher, which showed that the victim was first hit in the right femur, causing her to fall into the oncoming car, and suffer a severe brain injury. Importantly, although the speed of the car was relatively low, it is significant that it was accelerating. The position of the victim in relation to the car, the car’s acceleration and the injuries sustained by the victim after the first impact indicate to me that the first impact was a result of the victim being deliberately targeted.
[35] The Crown submits that the victim was vulnerable in that she stood no chance against an accelerating vehicle and that following the first impact, she was particularly vulnerable as she lay unconscious and injured on the road, and could not
have taken any action to avoid the second impact. I am hesitant to accept this submission as many murder victims are vulnerable when juxtaposed against the weapons used by their attackers, certainly more would be required for vulnerability in terms of s 104.
[36] As a separate factor, I consider it significant that the present offending occurred in the context of a domestic relationship.
Mitigating factors
Personal circumstances
[37] Mr Fungavaka, you have a number of personal circumstances that should be mentioned but that do not, in my view, constitute mitigating factors.
[38] You were born in Tonga and moved to New Zealand in 1991. You were married for ten years but divorced in 2013. You have seven children from four different women. Some of your children live in Australia. Your youngest child was adopted by your brother. Your counsel reports that you have strong support from your family. Since losing your job in the construction industry in approximately
2009, you have been unemployed and supported yourself on a sickness benefit.
[39] Your counsel and the pre-sentence report writer state that you have diabetes. [40] You have a previous criminal history, albeit it is largely minor and has no
relevance to the present offending. It does however, as the Crown submits, negate any suggestion that you are of previously good character.
Pre-sentence report
[41] The pre-sentence report has found that you are at a low risk of re-offending, but given the nature of the current offence, you pose a medium risk of harm to the community. You appear to have no immediate rehabilitative needs but the report writer recommended participation in drug and alcohol programmes offered by the Department of Corrections.
Remorse
[42] Mr Fungavaka, your counsel submits that you have shown deep and genuine remorse for what you have done to the victim and her family. That is difficult to believe. While you were entitled to maintain your innocence and argue that you did not see the victim before you hit her, one would expect that you would have nevertheless expressed your remorse in some apparent way, for example as a letter to the Court or to the family of the victim. In the absence of any steps taken by you to actively demonstrate your remorse, I do not accept that you are remorseful for your offending.
Discussion
[43] The central purpose of s 104 is to provide lengthy sentences for the “worst murderers”.7 The standard required to trigger s 104(1)(e) is high. A number of Judges of this Court have observed previously that there is in one sense, no such thing as a murder that is not brutal, cruel, depraved or callous.8 The most common qualifying characteristic of a s 104(1)(e) murder is where the attack is prolonged and particularly violent. Such cases involve multiple blows with a blunt weapon9 or motor vehicle10 or where the murderer stabs the victim repeatedly.11
[44] Central to this case is the fact that the victim was hit in two separate impacts. Your counsel submits that the second impact should be disregarded as the jury may have been satisfied that the first impact was a result of reckless driving and so did not turn its mind to determine whether the second impact was a deliberate act with murderous intent. I reject Your counsel’s submission that the second impact should be considered irrelevant as the first would have been fatal. The fact of the second impact speaks directly of the level of culpability, even if in a medical sense it did not detract the victim’s chances of survival.
[45] Section 24(1) of the Sentencing Act provides:
7 R v Williams, above n 3, at [60].
8 R v Christison [2013] NZHC 2813 at [37].
9 Te Wini v R [2013] NZCA 201.
10 Cornelius v R [2014] NZCA 123.
11 Gottermeyer v R [2014] NZCA 205; R v Malik [2015] NZHC 466.
24 Proof of facts
(1) In determining a sentence or other disposition of the case, a court—
(a) may accept as proved any fact that was disclosed by evidence at the … trial and any facts agreed on by the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
[46] In cases following a jury trial where more than one factual conclusion is possible, it is the Judge’s responsibility to set out what he or she finds to be established.12 That is particularly so when the finding relates to a significant aggravating factor, and so justifies a specific finding.13 The Judge who heard the evidence is entitled to reach his or her own view of the facts relevant to sentencing,
provided the view is supported by the evidence and is not inconsistent with the verdict.14
[47] Having heard the evidence during the trial, I find that the first impact was a result of an assault on the victim using the vehicle as a weapon, and not an act of reckless driving. The victim was crossing Pukepoto Rd, walking away from the dairy. You were driving the car around the corner from Bonnets Rd. Her right leg was perpendicular to the front of your vehicle. The evidence that the victim was first hit directly into the right femur is consistent with this. The brain injury sustained by the victim in the first impact is consistent with the evidence that although the car was moving relatively slowly, it was accelerating.
[48] In respect of whether the jury separately considered the evidence relating to the second impact, I accept as proved that the second impact was murder by way of assault with a vehicle as a weapon. The CCTV footage established that the headlights of the vehicle were turned on. The u-turn was performed a very short distance away from the site of the first impact. The vehicle was accelerating toward a higher speed. Witnesses heard loud engine noises, screeching tyres and a loud noise as something hit the vehicle. You admitted to the police the following day that you
felt your car hit something after you performed the u-turn. The force of the second
12 R v Lunjevich [2012] NZCA 454 at [9].
13 At [9].
14 R v Heit (1992) 8 CRNZ 554 (CA).
impact, which made the front of the vehicle airborne and caused the victim to be dragged along the road underneath the vehicle could not have been unnoticed or of little concern to you as the driver.
[49] Keeping in mind the approach to determining the application of s 104 set out in R v Williams I have considered the authorities cited by the Crown that involved vehicular murder.15 I have also considered the cases cited by your counsel, none of
which involve vehicular murder.16
[50] Of particular relevance t this case are the decisions of the High Court and the
Court of Appeal in R v Kinghorn and in R v Cornelius and its appeal, Cornelius v R.
[51] In R v Kinghorn the offender drove off the road, travelling at a speed between
27 and 38km/h and drove directly at the victim, who was a pedestrian unknown to him. The offender picked up the victim and put her in the back of his car. The victim died within minutes of the impact. The offence was committed with intention to sexually offend the victim. The Court found that s 104(1)(e) was not engaged, as the provision requires a much higher level of brutality, cruelty or callousness than is
normally associated with homicide.17 The Court of Appeal supported this finding on
appeal by the Solicitor-General, on the basis that the victim died almost instantly.18
[52] Section 104(1)(e) was engaged in perhaps the most comparable case, R v Cornelius. The offending was a result of a dispute with a neighbour. The offender drove his car at the victim who was walking along the road with another man. The offender yelled a threat to kill his neighbour and accelerated toward the victim, hitting him with the front of the car. The offender turned his car around and accelerated back toward the victim, who was lying on the ground, and drove over the top of the victim. He then turned the car and drove over the victim for the third time.
He then reversed off the victim and accelerated forward again, trapping the victim
15 R v Gardner [2009] NZCA 113; R v Sila [2009] NZCA 233; R v Kinghorn [2013] NZHC 3216; R v Kinghorn [2014] NZCA 168; R v Cornelius [2013] NZHC 3435; Cornelius v R [2014] NZCA 123; Pukeroa v R [2013] NZCA 305.
16 R v Murray [2015] NZHC 2179; R v Langley [2014] NZHC 3230; R v Millar [HC Auckland CRI-2010-090-5044, 21 June 2011; Brown v R [2011] NZCA 95; R v Seau [2008] NZHC 539; R v Ray [2014] NZHC 599; R v Fahey [2015] NZHC 78.
17 R v Kinghorn [2013] NZHC 3216 at [37].
18 R v Kinghorn [2014] NZCA 168 at [47].
under the car. Justice Gilbert found s 104(1)(e) engaged because the attack was deliberate and sustained. His Honour observed that were it not for the offender’s early guilty plea and genuine remorse, he would have imposed a 17 year minimum period of imprisonment. The case was subsequently heard and dismissed by the Court of Appeal.19
[53] The distinguishing, and aggravating, features of this case are that the offence occurred in the context of a domestic relationship and that there were two separate attacks. Were it not for the second attack, I would find that the case falls well short of the required threshold for s 104(1)(e). However, due to the overall nature of the attack I find that the present case is more serious than Kinghorn but somewhat less serious than Cornelius. The performance of the u-turn at high acceleration to run over the already helpless victim demonstrated a particularly high level of brutality, cruelty and callousness that I find sufficient to engage s 104(1)(e).
[54] I must now consider whether it would be manifestly unjust to impose a 17 year minimum period of imprisonment. In my view there is a tension between the low risk of harm identified in the sentencing report and the required statutory minimum. My research indicates that this is not a unique circumstance, and the
statutory minimum has been applied to offenders with a similar level of risk.20
Having considered your other personal circumstances, I am not satisfied that a manifest injustice will result if a 17 year minimum period of imprisonment is imposed.
Result
[55] Mr Fungavaka, please stand.
[56] On the charge of murder you are sentenced to life imprisonment. You are ordered to serve a minimum period of imprisonment of 17 years before being
eligible to apply for parole.
19 Cornelius v R, above n 10.
20 R v Yu HC Auckland CRI-2010-004-9725, 15 December 2011; R v Thurgood HC Auckland CRI-
2009-055-2162, 3 March 2011; R v Paul CA496/05, 1 August 2006.
[57] Please stand down.
JA Faire J
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