R v Maniapoto

[2022] NZHC 2974

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-063-12

[2022] NZHC 2974

THE KING

v

CHADWICK GEORGE MANIAPOTO

Hearing:	14 November 2022
Appearances:	A Gordon for Crown B Smith for Defendant
Sentencing:	14 November 2022

SENTENCING NOTES OF WOOLFORD J

Solicitors:           Gordon Pilditch (Office of the Crown Solicitor), Rotorua Counsel:  B Smith, Tauranga

R v MANIAPOTO [2022] NZHC 2974 [14 November 2022]

[1]                  Chadwick Maniapoto, you appear for  sentence  having  pleaded  guilty  on 16 September 2022 to wounding with intent to cause grievous bodily harm, causing grievous bodily harm with intent to cause grievous bodily harm,1 and aggravated assault.2

Facts

[2]                  The summary of facts to which you pleaded guilty records that on 1 January 2022 you and your wife were staying at your mother’s address in Motutere, drinking and socialising with family at a nearby address.

[3]                  From about midnight, you became increasingly aggressive toward the first victim, your wife. Your family members told you to stop, but you continued and as a result a family member called the Police. You were issued a Police Safety Order, which was to expire at midday on 2 January 2022. At that point, you returned to your mother’s address, and your wife stayed where she was and went to sleep.

[4]                  At about 7.00 am that morning you returned to the address and tried to pull your wife out of bed. You were told to leave. At about 9.00 am you were seen pushing your wife into a wall, to prevent her from leaving. At midday you and your wife were seen walking away from your mother’s house. You were trying to hold her hand, which she was pulling away. You both then turned and returned to the house.

[5]                  About 15 minutes later, you were found kneeling on top of your wife on the lawn of the address. You repeatedly stabbed her in the side with a small pair of scissors. A neighbour pulled you off her and disarmed you. Your family took her inside and tried to stop the bleeding. The neighbour restrained you until he thought you had calmed down. This first episode is the basis of the charge of wounding with intent to cause grievous bodily harm.

[6]                  Once you were released by the neighbour, you then entered the house, picked up a large carving knife and went to where your wife was lying being tended by family members. You again stabbed her repeatedly in the body, face and neck.

1      Crimes Act 1961, s 188(1).

2      Section 192.

[7]                  When your mother tried to put herself between you and your wife you pushed her away, causing her to fall to the floor and hit her head. You then continued to stab your wife. This second episode is the basis of the charge of causing grievous bodily harm with intent to cause grievous bodily harm. When your mother tried to intervene a second time, you pushed her to the floor. She tried to grab your hand but cut her hand on the knife. Your assault on your mother is the basis of the charge of aggravated assault.

[8]                  You then drove away. You attempted to flee from the Police but were arrested a short time later.

[9]                  Your wife was airlifted to hospital in critical condition. She had 18 puncture wounds. In particular, she had serious knife wounds to the left side of her face and the left side of her neck. One wound punctured her lung, causing it to collapse. Another significant wound to her left forearm severed her radial artery and the radial and cutaneous nerves. She required two lengthy surgeries and was in hospital for eight days.

Personal circumstances

[10]              A Pre-Sentence Report dated 14 October 2022 records that you are 50 years old and had been in a relationship with your wife for five years. You told the report writer that you were a normal couple, having the usual occasional fight or disagreement, but this offending is “the worst thing that has happened”.

[11]              You provided your wife and mother, the victims of your offending, as your contact persons. The report writer considered this demonstrated a lack of insight into your offending. He did not consider you displayed any remorse to your victims, and noted that you focussed on the consequences of the offending on yourself.

[12]              You told the report writer you have drunk at least six beers a day, and more on weekends, for the last nine or 10 years. The report writer agreed alcohol was a contributing factor to your offending, but also thought you were using it to minimise your offending.

[13]              A cultural report has also been filed under s 27  of the Sentencing Act  2002 (s 27 report).

[14]              According to the report you grew up around a “wonderful” whānau in Tūrangi. But your sister also described violence in your home. Your father would come home drunk, throw things, and on one occasion punched you in the face.

[15]              At around the age of 14, your sister told the report writer you began using cannabis and stealing cars, and engaging in other “delinquent behaviours”.

[16]              When your father died, you quit your job and abruptly left your whānau to live an isolated and vulnerable life in Auckland, away from your whānau and culture. You began drinking heavily. This was particularly so on the night before your offending, when your sister saw you drink tequila for the first time.

[17]              Ms Oakley, the report writer, considered you presented as having little capacity for insight. Your family suspects you have undiagnosed autism spectrum disorder which causes you to appear this way. When combined with childhood trauma, this correlates with violent behaviour. Your sister also noted your lifelong inability to sit still, which she believed was a symptom of undiagnosed ADHD, which is linked to reduced impulse control.

[18]              Ms Oakley considers this, and the other factors already described, predisposed you to the substance abuse that was evident on the day of the offending.

[19]              Despite this predisposition and your apparent lack of insight, the report writer noted that you have been participating in rehabilitative programmes while awaiting sentencing, and have stopped using alcohol.

Sentencing approach

[20]              Mr Maniapoto, the sentencing process follows a standard approach under the Sentencing Act 2002 (the Act).3 I must consider the purposes and principles of

3      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

sentencing, as set out in the Act. I will then assess what would be an appropriate starting point for the particular culpability of your offending, and in doing so I will have reference to the guideline “tariff” judgment, which is called Taueki v R.4 A tariff case is a guideline judgment issued by the Court of Appeal, which is binding on this Court and sets out various different bands of violent offending with intent to injure and the appropriate general sentences each type of offending might require. This will take into account the particular features of your offending.

[21]              I will then consider any relevant aggravating or mitigating features personal to you which might require altering this starting point.

[22]              In sentencing you, Mr Maniapoto, I have particular reference to the need for the sentence to demonstrate accountability for the harm done to the victim, to promote in you a sense of responsibility for that harm, and to assist in your rehabilitation and reintegration.5 Looking at the principles of sentencing, I also consider especially relevant the need to be consistent with other sentences, and the effect of your offending on the victims.6

Crown submissions

[23]              The Crown first addresses the aggravating and mitigating factors of your offending as described in Taueki, then compares it to similar cases.

[24]              The Crown submits your offending involved extreme and prolonged violence, the use of two different weapons including a large knife, attacks to the head and neck and serious injuries that the victim was lucky to survive after two major surgeries.

[25]              Your victim was vulnerable; she was smaller than you, unarmed, and by the time of the second attack, already badly hurt. The Crown also points to this passage from the Court of Appeal:7

Breach of an intangible trust may be just as significant as the breach of a physical boundary. Co-occupation as a family unit involves a social contract

4      Taueki v R [2005] 3 NZLR 372 (CA).

5      Sentencing Act 2002, s 7(1)(a), (b) and (h).

6      Section 8(e), (f) and (j).

7      Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420 at [27].

of mutual care and nurture. Necessarily it also involves inherent vulnerability to opportunistic breach of that social contract when physical violence is employed. One cannot realistically or effectively lock the door against a co- occupant. Where the victim is a family member, dependent on the offender for emotional and physical support, the alternative aggravating factor of vulnerability almost inevitably will be triggered. It would be a rare case of family violence where that was not so.

[26]              Finally, the Crown submits your offending was premeditated, as you waited until the Police Safety Order had expired before assaulting your partner. You were restrained, but then armed yourself again and resumed the attack.

[27]The Crown submits there are no mitigating factors.

[28]The Crown points to three similar cases.

[29]              Firstly, Shen v R, in which the defendant attacked his wife after she planned to divorce him.8 He took a day off work, armed himself with a butcher’s knife, and travelled to her work. He attacked her from behind, stabbing her body, legs and arms. She required resuscitation and ultimately lost a kidney. The defendant also had a plan to escape detection by faking the victim’s suicide.

[30]              The sentencing Judge considered this the very highest end of band two of Taueki and imposed a 10 year starting point. The Court of Appeal upheld this, noting in particular that the victim had attempted to flee but had been dragged back inside and further attacked,9 and the premeditation evidenced by the defendant’s extensive planning and preparation.10

[31]              In R v Jenkins, the victim went to bed after having verbally abused the defendant, his neighbour.11 The defendant then retrieved a 25cm kitchen knife and stabbed the victim 18 times to the body, neck and head. The victim lost his left ear and suffered a deep wound to his chest that he was lucky to survive. Katz J considered the offending involved extreme violence, a lethal weapon and attacks to the head. She

8      Shen v R [2017] NZCA 103.

9      At [36(a)].

10     At [36(b)].

11     R v Jenkins [2013] NZHC 95.

also imposed a 10 year starting point, though on the basis the offending was at the lower end of band three of Taueki.

[32]              R v Falani involved an attempted murder, although Faire J applied the Taueki bands in sentencing.12 The defendant’s brother got into a fight with the victim. The defendant armed himself with a knife, approached the victim from behind, and stabbed him in the back and neck, continuing after the victim fell to the ground. The victim needed his spleen and one kidney removed, had his carotid artery cut, his lung punctured and the tendons, nerves and arteries in his wrist severed. Each injury was independently life threatening.13

[33]              Faire J considered the offending was premeditated as the defendant deliberately armed himself with a knife and joined the fight. The violence was extreme and the injuries serious, but the Judge was careful not to double count this.14 The victim was vulnerable after his initial injury. This placed the offending at the lower end of band three, and the Judge imposed a 10 year starting point.15

[34]              The Crown considers the level of violence you used, and the injuries suffered by your victim to be similar. But it notes that, after you were restrained and the victim taken away, you then returned with a deadlier weapon and continued the attack. The Crown therefore suggests a 12 year starting point, with a small uplift for the aggravated assault.

[35]              On factors personal to you, the Crown points to the report writer’s opinion about your lack of remorse or insight into the offending. It also notes you have no convictions for violent offending.

[36]              The Crown acknowledges you pleaded guilty after your charges were amended based on fresh evidence. But it submits I must consider the overwhelming strength of the evidence against you when determining your guilty plea discount.

12     R v Falani [2014] NZHC 1879.

13 At [2].

14     At [15(c)].

15 At [25].

[37]              The Crown also suggests a minimum period of imprisonment (“MPI”) of at least half your end sentence.

Defence submissions

[38]              On the aggravating features of your offending, your counsel, Mr Smith, submits your offending was not premeditated. Nor was your victim especially vulnerable, as unlike most family violence offending, she was not alone with you, or in her own house.

[39]              On the cases the Crown refers to, your counsel says that Shen involved premeditation, including a plan to deflect blame onto the victim. The defendant in Jenkins made persistent attempts to prevent the victim getting help, and in Falani the defendant and his brother outnumbered the victim, and faced the more serious charge of attempted murder.

[40]              Therefore, your counsel submits your offending is as serious, or slightly less serious, than the three cases cited by the Crown, and a starting point  of nine  to     10 years’ imprisonment is more appropriate.

[41]Your counsel lists the following mitigating factors.

[42]              First your health. Your counsel submits you are facing heart surgery having suffered several heart failures. You are currently awaiting an echocardiogram. I have been provided with medical information this morning, which confirms a diagnosis of exacerbation of heart failure.

[43]              Second, your counsel submits there is a nexus between the factors in your upbringing described in the cultural report, and this offending, justifying a discount of 15 to 20 per cent.

[44]              In addition, you have not been before the Court since 2009, and have spent more than a decade as a hard-working member of society and a family man.

[45]              Third, contrary to the pre-sentence report, you are remorseful. You told the report writer you were sorry, angry and depressed about what you had done. You hoped the victim and both your families could forgive you. Your s 27 report notes you expressed remorse but have difficulty expressing yourself. Your sister supports these observations; she says you are a man of few words, but have expressed your remorse toward the victim. Your counsel suggests a five to 10 per cent discount.

[46]              You have also showed a desire to plead guilty from an early stage, and have asked to participate in restorative justice although this has not yet occurred.

[47]              Finally, your guilty pleas were prompt, and deserve the full 25 per cent discount.

[48]              Your counsel also submits that a MPI is inappropriate. You are 50 years old, and this is your first conviction for violence and second sentence of imprisonment. You accepted responsibility and sought restorative justice early on. You have both the support of your family and desire to rehabilitate.

Sentencing

[49]I consider your offending involved the following aggravating factors:

(a)You used extreme, brutal violence, and this is reflected in the injuries your wife suffered. She was lucky to survive and required two surgeries;

(b)You attacked your wife’s head and neck;

(c)You used two weapons, the second obviously lethal;

(d)Your victim was vulnerable. You were able to overpower and get on top of her during the first assault. During the second assault she was lying down and presumably badly hurt;16

16     In Falani this constituted vulnerability despite the victim not being inherently vulnerable at the beginning of the assault.

[50]              There is no evidence your offending was, however, planned. It coincided neatly with the end of the Police Safety Order, but as you were already pushing the victim around some hours before this, I consider it likely a coincidence. Your offending involved some premeditation in that you twice armed yourself and sought the victim, but I accept it was mostly impulsive offending.

[51]              On the basis of these factors, I place your offending at the bottom of band three of Taueki, requiring a sentence of nine – 14 years’ imprisonment.17

[52]              On the cases cited by the Crown, the offending in Shen involved a similar weapon, and level of violence and victim vulnerability and injuries to your own. It continued despite the victim’s attempts to flee, similar to your offending continuing after you were restrained and separated from your victim. It was, as your counsel points out considerably more pre-meditated to your offending, which I have said was mostly impulsive. I consider the offending in Shen was therefore slightly more serious than this case.

[53]              Jenkins also involved a similar level of violence and weapon. The victim appears to have been less inherently vulnerable than your wife; there is no suggestion of a disparity in size,18 or a family relationship. But this is balanced by the fact the victim in Jenkins was at home, in bed when the attack took place. The defendant locked the door to prevent help from arriving, which can be compared to your aggravated assault on your mother. Balancing these factors, I consider Jenkins as serious as your offending.

[54]              Falani was an attempted murder. I acknowledge that you were originally charged with attempted murder and did not plead guilty until this charge was amended to one of causing grievous bodily harm with intent to cause grievous bodily harm to reflect your insistence that you did not intend to kill your wife.

[55]              I put less weight on the fact the victim in Falani was outnumbered. The defendant interrupted what appears to have been a much less dangerous fight with a

17     Taueki, above n 4, at [34], [40] and [41].

18     The opposite is likely, as the defendant in that case was a woman, and the victim a man.

sudden, serious assault that immediately incapacitated the victim. In that context, the presence of the defendant’s brother made little difference to the seriousness of the offending.

[56]              The victim in Falani was also less inherently vulnerable than your wife, although like your wife he became more vulnerable after his initial injury. There was no family relationship between the victim and the defendant. Balancing this with the more serious charge in that case, I consider the offending in Falani equally serious to your offending.

[57]              On the basis your offending is slightly less serious than that in Shen, and equally serious to Jenkins when including the aggravated assault, I adopt a starting point of 10 years’ imprisonment for the totality of your offending.

Factors personal to you

[58]There are no aggravating factors personal to you.

[59]Your counsel has suggested a number of mitigating factors.

[60]              First, your guilty pleas. Despite the delay, the Crown seems to accept that you pleaded guilty at the earliest opportunity in the circumstances. In the absence of information to the contrary, I accept that.

[61]              The Crown, however, suggests you should not receive a full guilty plea discount due to the strength of the case against you. This is a factor to be considered, not for its own sake but because it is relevant to whether the plea involves a genuine acceptance of responsibility.19

[62]              I note this factor has not prevented a full discount in a serious violence case, where this is an additional benefit in avoiding trial to victims and their families.20

19     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60]; and Millar v R [2019] NZCA 570.

20     Rowles v R [2016] NZCA 208.

[63]              Based on the s 27 report, I consider that, despite not presenting as remorseful to the pre-sentence report writer, you have accepted responsibility for his offending by pleading guilty. In particular, you have taken steps to address a major cause of your offending by abstaining from alcohol and attending rehabilitative programmes, and have offered to attend restorative justice. In that regard, I have this morning received a request from the Auckland Restorative Trust for adjournment of the sentencing so that restorative justice may be facilitated. I record, however, that I refused an adjournment as I determined that the interests of justice were better served by sentencing you today, rather than further adjourn, probably into the New Year. Finality is important, not only for the victim, but also for you and your family. However, because of the steps you have taken, including the offer to attend restorative justice, I will apply a full 25 per cent discount for guilty pleas.

[64]              However, as these factors have led to you receiving a full guilty plea discount, I consider a discreet discount for remorse and efforts to rehabilitate and make amends is not warranted.

[65]              In the circumstances, this would have, in any event, been no more than five per cent. However, as this was also the reason you are receiving a 25 per cent guilty plea discount, rather than, say, a 20 per cent discount, I decline to award a discrete discount for remorse and rehabilitation.

[66]              As to the personal factors described in your cultural report, I note the report describes a relatively happy childhood. The report writer described your father as sometimes crossing the line from discipline into abuse, which, while relevant, is less serious than most accounts of abuse and deprivation that come before the courts. This may have had some connection to your offending given the intergenerational nature of family violence.

[67]              Likewise, your disconnect from Te Ao Māori appears to have been based on indifference, rather than the destruction of social fabric brought on by poverty and loss of land that has been described in other cases.21 These factors cannot be assumed in

21     R v Rakuraku [2014] NZHC 3270.

every case.22 According to your cultural report you often attended and helped out on the marae growing up, and your sister said your family was closely connected to their culture.

[68]              More relevant is your social and cultural isolation, and associated increase in alcohol consumption following the death of your father.

[69]              Although undiagnosed, I find your sister’s accounts of your ADHD and autism spectrum disorder believable. But these at best account for the impulsiveness of your actions and may have contributed to your alcohol abuse.

[70]              In the circumstances, I propose to reduce your sentence by 10 per cent to account for these factors. This leads to a total discount of 35 per cent, or 42 months, and a total end sentence of 78 months, or six years and six months’ imprisonment.

Minimum period of imprisonment

[71]              This is your first serious violent offence. You are taking steps to address whatever may have caused it. I therefore consider a MPI is not necessary in your case.23

Result

[72]              Mr Maniapoto, please stand. On the two charges of wounding and causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act, you are sentenced to six years and six months’ imprisonment. On the charge of aggravated assault under s 192(1)(a) of the Crimes Act, you are sentenced to 18 months’ imprisonment to be served concurrently with the sentence of six years and six months’ imprisonment.

22     Solicitor- General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [49].

23     See B v R [2019] NZCA 18; Taylor v R [2012] NZCA 348; Mukoko v R [2012] NZCA 390; R v Wirangi [2007] NZCA 25; and Harrison v R [2011] NZCA 642.

[73]You may stand down.

Woolford J