R v Lologa HC Auckland CRI 2009-092-16953

[2010] NZHC 2184

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-092-16953

THE QUEEN

v

ESARONA DAVID LOLOGA

Hearing:         30 November 2010

Appearances: S Moala for the Crown

T Faleauto for the Defence

Sentence:       30 November 2010

SENTENCING NOTES OF WHITE J

Solicitor:            Crown Solicitor, PO Box 2213, Auckland 1140

Counsel:            T Faleauto, PO Box 76 689, Manukau 2241

R V LOLOGA HC AK CRI 2009-092-16953  30 November 2010

[1]      Mr Lologa, you appear for sentence this morning having pleaded guilty to attempted murder.

Factual background

[2]      In summary, the facts were that you were in a relationship with Anipepa Punimata, the mother of Jardine (Jake) Punimata, your victim then aged 19.   You lived  with  Ms  Punimata,  your  victim,  and  your  two  month  old  son,  Nathanial Lologa, at 1/197 Robertson Road, Mangere.

[3]      On Tuesday 13 October 2009, you were drinking alcohol at a neighbour’s house. You had started drinking in your garage at around one o’clock that afternoon. You consumed around 18 cans of Cody’s and Woodstock.

[4]      You returned home at around 10:00 pm.  You ate a meal that your victim had been saving for himself in the fridge.  You left the house for around half an hour. You returned home, intoxicated, and knocked on and kicked the door.   When you were let inside, you argued with Ms Punimata.

[5]      Your victim, thinking you had hurt his mother, said “If you hurt her again, I’ll punch you.”

[6]      You walked to your vehicle, and collected a sharpened machete.   Its blade was around 45 cm long.  You attacked the complainant, yelling that you were going to kill him.  You attempted to strike him and missed several times.  You succeeded in delivering two heavy blows with the machete.  One struck your victim’s hand, as he tried to defend his head.   That cut severed a number of tendons and required surgery.   The other was to the side of his head, inflicting a deep wound, some

13 centimetres long, and fracturing his skull.

[7]      Your victim fled, hoping to save his life.   You chased him up your long driveway, onto Robertson Road, yelling that you were “going to kill him”.   This alerted your neighbours, who attempted to intervene.

[8]      Jonathon Aue confronted you on Robertson Road.   He told you to “Calm down and put the machete down.”  You did not.

[9]      Rather, you told him “fuck off, or I will kill you”.  He hid behind a fence. When you later walked back past him, he tackled and disarmed you.  He retained the machete until the police arrived.

[10]     When  the  police  arrived,  you  told  Constable  Regan  Tamihere  that  you wanted to kill your victim.  You said “I want to kill him, I’m not a dangerous person, but I want to kill him.  I’m going to kill him when I come back.  I’m not going to jail.”

[11]     You repeated similar sentiments to Detective Craig Turley.  You said “I was going to kill him but he run too fast” then “I was going to kill him and then myself”. You said “My life is over.  You don’t even know I’m dangerous.  I was going to kill someone tonight.”

Your personal circumstances

[12]     The pre-sentence report discloses that you are a 35 year old man of Samoan descent.  You have been in custody at Auckland Central Remand Prison for around

13 months.  Before your remand, you were unemployed.

[13]     You were raised by your uncle.  Initially, you lived in Wellington, but your adoptive family took you to Western Samoa when you were very young.  Your uncle was strict, and beat you.  You had a fearful, unhappy childhood.

[14]     You returned to New Zealand and attended Naenae College in Lower Hutt until  you  were 17.    Subsequently,  you  completed  a  number  of  courses  at  Arla Training in Wellington.

[15]     You met Ms Punimata in 2008.  Your relationship with her was turbulent and marked with domestic violence.  With her, you have a son, Nathaniel.  Your victim is her other son.

[16]     You have $3,245 in outstanding fines and costs.  You describe yourself as in good health.

[17]   Your probation officer notes that you have a history of schizophrenia. Accordingly, a psychological report has been prepared.   I will return to that later. You told your probation officer that you had stopped taking your medication “one or two weeks” before your offending and had not seen Faleola Psychiatric Services for “one  month”  beforehand.    In  custody,  you  have  resumed  your  medication,  and became involved again with the Mason Clinic.

[18]     Before your remand, you drank alcohol heavily and harmfully.   You used cannabis weekly.  You admitted that cannabis made you paranoid.

[19]     You told your probation officer that you could not recall everything that happened on the night of your offending, because of the alcohol you had consumed. You explained that you were “angry” with your victim accusing you of hurting your partner.  You stated that you had not hit her since 2008, and that your last altercation with the victim was in June 2008.

[20]     You  said  that  you  were  ‘very  much’  remorseful  and  wished  it  had  not happened.  In your letter to the Court today, which I have read, you have expressed deep remorse again.  You “lost control” of yourself and “didn’t have time to think”.

[21]     Your probation officer identifies your propensity for violence, alcohol abuse, and imbalanced lifestyle as causative of your offending.

[22]     You stated that you were motivated to attend rehabilitative programmes, such as the Medium  Intensity Rehabilitative Programme.   However,  as  you offended while subject to intensive supervision, your probation officer doubts your motivation to reform.   Your probation officer recommends programmes to address drug and alcohol use and anger-management courses.

[23]     You have a medium risk of recidivism, but your mental illness makes you a continued risk to the community.

[24]     Your probation officer recommends imprisonment.   For offending of this type, no lesser sentence is realistic.

Your psychological history

[25]     Pursuant to s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, Dr Mhairi Duff interviewed you and prepared a psychological report.

[26]     You have had contact with General and Forensic Mental Health Services since 1999.  You then suffered auditory hallucinations.  That is, you heard voices. Because of them, you assaulted a friend.  You were imprisoned for that assault, and in prison came to believe that people were poisoning your food.  You were treated with antipsychotic pills and injections.  You are diagnosed with schizophrenia and abuse alcohol.  Your last psychiatric admission was in 2003.

[27]     It is not necessary to repeat the detail of your background, as it parallels that contained in the pre-sentence report.   I do note, however, that it provides some further detail.   You told Dr Duff that you felt rejected and externalised by your mother as a child.  You ran away from home as a teenager.  You have only had one long term partner, your victim’s mother.  You said she was not a good woman, and suspected she was unfaithful.

[28]   You are prescribed anti-psychotic medication.   When first prescribed medication, in 2001, you responded to it well.  In August 2009, your medication was changed from long-acting injectible form to olanzapine, an oral antipsychotic medication.  You are apparently compliant and take your medication.

[29]     Doctor Duff stresses your alcohol abuse.  You drink as a coping mechanism. Moreover, you have used cannabis for a long period, which you admit makes you paranoid.  You have tried methamphetamine.

[30]     It is to your credit that you have remained engaged in treatment voluntarily.

[31]     While on remand, you have expressed some suicidal thoughts.  You have not acted upon them, instead focusing on positivity and keeping your thinking straight.

[32]     However, your diagnosed mental illness did not directly contribute to your current offending.

[33]     I note one inconsistency between the pre-sentence report and psychological report.  You told your probation officer that you had stopped taking you medication at the time of your offending.  You did not tell Doctor Duff this.

Your prior convictions

[34]     You are a recidivist offender, with 47 prior convictions.  Two, for common assault, arising from a domestic incident between you and your partner in 2008.  You have four other assault convictions, from the 1990s.

Victim impact statement

[35]     I have read the victim impact statement provided to the Court by your former partner’s teenage son.  His description of your attack and the serious injuries which he suffered as a result confirm the awful nature of  your attack on him and its dreadful consequences.

Submissions

[36]     The Crown submits that your offending involved actual violence and the use of a weapon, some degree of premeditation, a vulnerable 19-year-old victim, and a high level of determination.  You were determined, the Crown submits, to kill your victim.  Further, you caused him severe harm.  The Crown submits that there are no mitigating features of your offending.

[37]     After traversing relevant authorities, which I will return to later, the Crown suggests a starting point of between 6 ½ and 7 ½ years imprisonment.

[38]     The Crown notes your extensive criminal history and the fact that the current offence was committed while you were subject to a sentence of intensive supervision

for a period of one year imposed on 16 March 2009.   In mitigation, the Crown suggests that you pleaded guilty late and in the face of a very strong case, which merits a discount of some five per cent.

[39]     The Crown suggests a minimum period of imprisonment of up to 50 per cent of your end sentence.

[40]     As to your mental health, the Crown submits that it is of little relevance to your sentencing.   That said, it is submitted that it is imperative that you continue treatment and engage in alcohol rehabilitation.

[41]   Your counsel, Mr Faleauto, in his careful and helpful written and oral submissions, stresses the importance of rehabilitation.  He accepts that you used a weapon, that there was limited premeditation, and that you caused extensive harm. He suggests that determination is not listed under s 9 of the Sentencing Act as an aggravating factor.

[42]     Your victim, he suggests, provoked you.   He did not let you inside.   He disrespected you, an elder, a step-parent and the ‘breadwinner’.   He threatened to punch you.

[43]     Your Counsel also suggests that your mental illness results in diminished intellectual capacity or understanding.  He suggests that you had stopped taking your medication, as you told your probation officer.

[44]     After discussing relevant authorities, he suggests a starting point of five years imprisonment.

[45]     He then suggests a discount of 20 per cent for your guilty plea, and further discounts for remorse and for your mental health difficulties.

[46]     Mr  Faleauto  suggests  that  a  minimum  period  of  imprisonment  is  not necessary.

[47]     Parliament, in enacting the Sentencing Act 2002, laid out the framework under which I must sentence you.  I must also follow the guidance set by the Court of Appeal in R v Taueki and, more recently, by the Supreme Court in Hessell v R.[1]

[1] R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135.

[48]     Following that approach, I shall first set out the purposes and principles of sentencing under the Sentencing Act 2002 that apply to your case.   Then I shall discuss the aggravating and mitigating features of your offending.

[49]     I shall then set what is called the starting point.   That is a sentence that reflects your offending only, not factors personal to you.   Having set the starting point,  I shall  adjust  it  for  your  personal features,  and  so  set  a  finite  period  of imprisonment  for  you.    Finally,  I must  consider  whether  a  minimum  period  of imprisonment is appropriate in your case.

Purposes and principles

[50]     For a case such as this, the main objectives are to hold you accountable for the harm that you have done, promote your sense of responsibility for that harm and provide  for  the  interests  of  the  victims  of  your  offending:  s 7.    Given  your psychological background and recidivist offending, protection of the community is also essential.  I accept, however, your counsel’s submission that in your case special attention should be paid to rehabilitation.

[51]     In sentencing you, I must follow the principles set out in the Sentencing Act (s 8) and, in particular, take into account the gravity of the offending, the seriousness of the offence and the need for consistency in sentencing levels.  I must also factor in any particular circumstances personal to you that could make a term of imprisonment disproportionately severe.

[52]     I  accept  the  aggravating  features  discussed  by  the  Crown.    You  used  a dangerous  weapon  and  struck  the victim  several  times.    Your  attack  had  some premeditation.  I accept your counsel’s submission that this was limited, but this was not a spontaneous attack.  You walked to your car, collected a weapon, and returned. Your victim was your 19 year old step son, a person vulnerable to you.  I accept that he is taller than you.  But a teenager is still vulnerable to a parent or parent’s partner. Both those factors carry lesser weight, but some weight nonetheless.

[53]     Two other factors, however, are of some importance.   You caused serious harm, severing tendons in your victim’s hand, cutting open a 13 centimetre gash in his skull, and fracturing his skull.   And, finally, your attack was determined and sustained.  You pursued your fleeing victim down to the street.  I accept the Crown’s submission that only good fortune – and the bravery of your neighbour – saved your victim’s life.

[54]     While s 9(1) does not list determination as a specific aggravating factor, I

may take it into account under s 9(4)(a).

[55]     That adds to the severity of your offending, and will be taken into account in setting the starting point.

[56]     I give little weight to your victim’s provocation.   He did threaten to punch you, but did so out of concern for his mother.  You have admitted violence against her in the past.  Moreover, your response was quite simply out of all proportion.

[57]     Turning, then, to your personal features.   You are a recidivist offender.   I must take that into account.   You have committed crimes of violence before.   Of particular note is  that  your most recent  assault  convictions stem  from  domestic violence.

[58]     But, I accept your counsel’s submissions that you have diminished mental capacity, to some extent.   I have read your letter to the Court this morning, and I accept that you are honestly remorseful for your offending.

[59]     You suffer from a severe mental health condition.   I accept that this may heighten the severity of a sentence of imprisonment.   Furthermore, it certainly contributed indirectly to your offending.

[60]     Finally, you pleaded guilty.  This was late, and in the face of a strong Crown case, which I must consider under the Supreme Court’s decision in Hessell.   But your counsel has explained that it was entered soon after a change of counsel, and set out a number of practical difficulties in instructing your prior counsel.

Setting a starting point

[61]     The offence of attempted murder is a very serious one.   But it may be committed in numerous ways, and so it is not possible to create categories of seriousness.[2]      The  starting  point  in  your  case  must  therefore  be  set  by  careful analysis of the circumstances of your offending and the particular combination of aggravating and mitigating factors.

[2] R v Allen and Jennings CA7/88, 23 June 1988.

[62]     Because of the wide range of factors to consider, comparable cases are useful only as a guideline.

[63]     Up until 25 years ago, the longest sentence that the courts had imposed for attempted murder was five years imprisonment.[3]    But the courts are no longer so lenient.  Starting points of up to 10 years’ imprisonment have been adopted.[4]

[3] Ibid.

[4] For example, R v Khan CA83/02, 4 December 2002.

[64]     The  Crown  has  helpfully  suggested  five  cases  for  comparison.    Each, however, differs much from the present.

[65]     R v Hall, where a starting point of nine years was adopted, involved the offender waking the victim, his son, who was in bed, and then attacking him with an axe.[5]   The violence and injuries inflicted were more severe.

[5] R v Hall HC Rotorua T0860/02, 19 September 2002, Williams J.

[66]     A  ten  year  starting point  was  adopted  in  R  v  Khan, where the offender approached his victim from behind while she was vacuuming and repeatedly stabbed her, involved life threatening injuries, and involved no provocation at all.[6]    But, I note  that  it  was  good  fortune  only  that  your  victim’s  injuries  were  not  life threatening, or indeed even fatal.

[6] R v Khan CA83/02, 4 December 2002.

[67]     In R v Kitchen, the offender threatened his former partner with a knife, saying that he would see her dead, until the victim’s current partner intervened.[7]     The starting point  was  five years.    While there  was  more  premeditation  there,  your offending is primarily distinguishable in that you repeatedly stabbed your victim, causing severe injuries, rather than merely threatening him.

[7] R v Kitchen CA183/02, 17 December 2002.

[68]     In R v Fotuaika, the offender and victim had separated two days before the offending, ending a 14 year relationship.[8]    The offender went to the victim’s workplace with a steak-knife.   He attacked her in a frenzy, inflicting 14 wounds, which threatened her life.  The Judge adopted a starting point of nine years.  Again, your offending is less severe.  Lesser injuries were inflicted and less premeditation was involved.

[8] R v Fotuaika HC Wanganui CRI 2008-083-73, 22 October 2008, Miller J.

[69]     R v Butler was a workplace dispute.[9]   The offender, angered by a complaint laid by the victim, decided to “take him out”.  The next day, he attempted to do so. He hit the victim once with a jemmy bar before being restrained.  The starting point was between five and six years.  While there was much more premeditation, a less horrific weapon was used, a less savage and less sustained attack was committed, and no serious injury was inflicted.

[9] HC Christchurch, CRI 2008-009-3105, 15 May 2008, Panckhurst J.

[70]     I am satisfied that your offending is more severe than Butler’s or Kitchen’s. But it is not as severe as the other three cases.

[71]     Accordingly, I adopt a starting point of seven years.

Adjusting the starting point

[72]     Next, I consider the aggravating factor personal to you, being your prior convictions.   You have numerous prior convictions, including six for violence. Accordingly, I add an uplift of six months to the starting point, to reflect your recent and relevant prior convictions.

[73]     That is the only aggravating factor personal to you.

[74]     I turn to mitigating factors.  I must take your remorse into account, and your diminished culpability due to your mental illness.   I am also mindful that your mental condition may make a term of imprisonment more severe. As the Court of Appeal put it in R v M:[10]

[10] R v M [2008] NZCA 148 at [34].

A person with a diminished ability to “copy with the stresses of life”, a term of imprisonment may weigh more heavily on him than on others.

I turn to comparable cases for guidance.

[75]     In Khan, the offender suffered an undiagnosed mental illness.  The consensus was that Mr Khan suffered a previously diagnosed but acute mental disorder.  He, like you, heard voices.   The Court of Appeal enlarged the discount applied for mental illness by two years, imposing an end sentence of six years.

[76]     But your case is somewhat different.  Your condition was diagnosed.  You knew about it, although you may have stopped taking your medication.  Importantly, it appears also not to have directly contributed to your offending.  That is a crucial difference.

[77]     In R v Bridger, the Court of Appeal noted that only a small discount should be applied for a mentally ill offender’s lesser culpability where there was no causal nexus between the mental illness and the offending.[11]     That Court made similar remarks in Taueki at [45]. As in R v M,[12] I am not satisfied that your mental illness diminishes your moral culpability.  As Dr Duff found, your mental condition did not

directly contribute to your offending.

[11] R v Bridger [2003] 1 NZLR 636 (CA) at [39].

[12] R v M [2008] NZCA 148.

[78]     However, again as in R v M, I do accept that your mental condition would make a term of imprisonment weigh more heavily on you.

[79]   For these two mitigating factors, that is your remorse and your mental incapacity, I give you a discount of eight months.

[80]     Finally, counsel have debated the appropriate discount for your guilty plea. You pleaded guilty late and in the face of a strong Crown case.  But the Supreme Court’s decision in Hessell requires me to take into account all relevant factors, which includes your change in counsel.   Under the Supreme Court’s decision, the maximum available discount for a guilty plea is 25 per cent. Taking the relevant factors into consideration, I grant you a discount of 12 per cent for your guilty plea.

[81]     Rounded, this brings your end sentence to six years imprisonment.

Minimum period of imprisonment

[82]      The  Crown  has  suggested  a  minimum  period  of  imprisonment.    I must impose one where I am satisfied that the period otherwise applicable would be insufficient  to  hold  you  accountable  for  the  harm  done  by  your  offending, denouncing your conduct, deterring you and other persons, or protecting the community.   I must also take into account again the aggravating and mitigating factors in s 9 of the Sentencing Act because they are relevant in this exercise as well:

R v Taueki.[13]

[13] R v Taueki at [56].

[83]     I have considered these factors closely, particularly in light of your mental condition. I find that this threshold has been reached.  Even if your mental condition is managed, I think that you are a sufficient threat to the community to justify the imposition of a minimum period.  Furthermore, without a minimum period I would not be satisfied that the sentence I imposed would be sufficient for the purposes of deterrence, denunciation and accountability.

[84]     I intend to impose a minimum period of imprisonment of half your sentence.

Sentence

[85]     Mr  Lologi,  I  sentence  you  to  a  term  of  six  years  imprisonment  with  a minimum period of imprisonment of three years.

[86]     You may stand down.

D J White J