R v Niumagumagu

[2021] NZHC 3465

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-006563

[2021] NZHC 3465

THE QUEEN

v

SOAFA NIUMAGUMAGU

Hearing:	16 December 2021
Counsel:	LP Radich and JM Pridgeon for Crown SK Green for Defendant
Judgment:	16 December 2021

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. SK Green, Auckland.

R v NIUMAGUMAGU [2021] NZHC 3465 [16 December 2021]

Charges

[1]                  Mr Niumagumagu, you are for sentence on two charges: attempted murder and manslaughter. The crime of attempted murder carries a maximum penalty of 14 years’ imprisonment; manslaughter, life imprisonment.

Facts

[2]                  The first victim is your former wife, Puapuaga Matamua. In the middle of 2019, she left you for another. In the days leading to 20 June that year, you told a colleague you wished you had a gun; you wanted to shoot Ms Matamua; and you wanted to hurt her new boyfriend. You told another colleague the only thing that would end the pain would be a sapelu. Sapelu is the Samoan word for machete. In the same period, you sharpened a 20-centimetre piece of steel at your workplace to use against your former wife as a weapon.

[3]                  On 20 June 2019, you drove to her workplace a little before her shift ended. You took with you the piece of sharpened steel. When Ms Matamua left the factory, you approached her. After brief conversation, you threatened to kill Ms Matamua; grabbed her by the hair; and then attempted to repeatedly stab her to the neck and head with the weapon you had made.

[4]                  Ms Matamua screamed for help and fought back. Colleagues came to her aid. I commend her bravery and their bravery. They restrained you. You continued to say you wanted to kill her.

[5]                  You then got into your car. Some of Ms Matamua’s colleagues confronted you on the road outside the factory. You accelerated and hit one of them. You were found not guilty of assault with a weapon in relation to this sequence. I, therefore, place no weight on it in determining your sentence.

[6]                  You then drove to the end of the dead-end street, turned around and drove back toward the factory. Had you kept going, you would be for sentence on the charge of attempted murder only. But you did not keep going. Instead, you turned left and drove back into the factory carpark. You paused at the entrance to the carpark. You then

drove at speed toward the second victim, Sagaia Kaisala. She and others ran for their lives. You hit Ms Kaisala with your car, throwing her into another parked car. She died instantly. You then reversed and drove away.

[7]                  Ms Kaisala was a colleague of Ms Matamua and had comforted her in the wake of your attack.

[8]                  This sequence attracted a murder charge. The jury found you not guilty of murder but guilty of manslaughter. The unlawful act underlying the charge was a deliberate running down: an assault using the car as a weapon. Descriptions of the sequence differed somewhat. That is hardly surprising. The preponderance of evidence was that you drove directly at Ms Kaisala, at speed. There is no evidence you attempted to slow the car, brake or avoid her. You deliberately ran Ms Kaisala down at speed, then drove away. This I am sure is what happened. I reject beyond reasonable doubt Ms Green’s submission this offending is merely an instance of bad driving. I therefore sentence you on the basis you deliberately ran down Ms Kaisala, at speed, albeit without the mindset required for murder.

[9]                  You were quickly arrested. You told Police you wanted to kill Ms Matamua but did not mean Ms Kaisala to die. Fortunately, Ms Matamua did not suffer serious injury. That reflects her bravery and those of her colleagues. Unsurprisingly, she believed she was going to die.

[10]              Before  going  further,   I  record  I  have  no   victim  impact  statements.   Ms Matamua has chosen not to make one. So too Ms Kaisala’s family, albeit members are present today both in court and digitally. I welcome them.

Starting point

[11]              It is common ground the attempted murder offence has three things that make it more serious: the offending was premeditated; it involved a weapon; and you attacked the head and neck.

[12]              The Crown seeks a starting point of nine and half years’ imprisonment based on other cases involving this charge, and a decision of the Court of Appeal in relation to the crime of wounding with intent to cause really serious bodily harm.1

[13]              On your behalf, Ms Green advances a starting point “around the five-year mark”. Ms Green argues your attack on Ms Matamua was not sustained.

[14]              I do not accept that. On the account of Ms Matamua and several eyewitnesses, the attack continued for some time. You had to be pulled off Ms Matamua—and restrained. Ms Green also says you desisted or stopped the attack. While Ms Matamua appeared to agree with this proposition in cross-examination, she testified without the benefit of an interpreter. English is very much her second language. It was obvious to everyone in the courtroom Ms Matamua was confused during some of her testimony. I have no doubt she was confused when she gave the answer upon which Ms Green now relies. Moreover, the attack was seen by many people. No one described you as desisting. Rather, and as observed, you had to be restrained and pulled away from Ms Matamua. You wanted to kill her, which is what you said repeatedly throughout the incident.

[15]              To avoid doubt, your culpability, or blameworthiness, is not diminished because of the possibility Ms Matamua might not have been candid with you about ending the marriage, or the reason she did so. Relationships in this country end messily every day. Those involved do not react with violence, let alone premediated violence with a weapon fashioned for that purpose. Moreover, a person is entitled to end a relationship, including a marriage, without the other resorting to violence or fearing the other will do so. In short, violence in the context of a relationship, including one that has ended badly, does not make violence less serious. This is a proposition we must all confront in this country.

[16]              Your attempted murder of Ms Matamua is broadly like the cases cited by the Crown,2  and toward the top of what is called band two in the judgment of the

1      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA), Ali v R [2019] NZCA 35 and R v Ae

[2016] NZHC 965.

2      Ali v R and R v Ae, above n 1.

Court of Appeal concerning grievous bodily harm.3 That Court said taking a weapon to the scene, intending to use it there, is “severely aggravating”.4 You intended not just really serious bodily harm, but to kill. If I were sentencing for this offence alone, I would adopt a starting point of nine years’ imprisonment. This starting point acknowledges the injuries to Ms Matamua were not serious despite your intention. Again, that is because she fought back and others went to her aid.

[17]              I now turn to the crime of manslaughter which can be committed many ways. Because of this each case turns on its facts. That said, manslaughter involving a car falls into two broad categories. One is when the defendant drives dangerously. Another is when the offender uses the car as a weapon to deliberately assault the victim. Your offending is firmly within this category.5

[18]              Three things make this crime more serious, albeit with overlap. First, and as observed, you used a car as a weapon. Second, this violence was both gratuitous and callous. Ms Kaisala simply happened to be in the carpark. You ran her down for no more reason than that.6 You then drove away, as if nothing had happened.  It follows a person who came to work, probably expecting an unremarkable even boring day, never went home. Third, Ms Kaisala was vulnerable in that she had no hope of protecting herself against a quickly moving car. Death was the obvious outcome, even though you did not intend it.

[19]              The Crown advances a starting point “in the vicinity of eight and a half years’ imprisonment” for this offence. Ms Green advances a much lower starting point of four years’ imprisonment.

[20]              As observed, this offending has things that make it more serious, albeit with overlap. You used a car as a weapon against a defenceless victim. And, you inflicted gratuitous, callous violence. If approached through the lens of the Court of Appeal decision I spoke of earlier, a starting point near the top of band two would be required.

3      R v Taueki, above n 1, at [38]–[39].

4      R v Taueki, above n 1, at [31](d).

5      Taiapa v R [2019] NZCA 524.

6      No one suggests Mr Niumagumagu targeted Ms Kaisala because she had helped Ms Matamua.

The offending is also somewhat like that in a case called Taiapa, in which a nine-year starting point was adopted.7

[21]              Expressed yet another way, your manslaughter of Ms Kaisala is at least as serious as your attempted murder of Ms Matamua. For these reasons, I would adopt  a nine-year starting point if I were sentencing you for this crime only.8

[22]              If I added these figures together, the global starting point would be 18 years’ imprisonment. That is not how the law works. While I must sentence you for the totality of your offending, I must also ensure the starting point is not disproportionately severe. The Crown advances an overall starting point “in the vicinity of 15 years’ imprisonment”. Ms Green advances one of “six to seven years’ imprisonment”, though that may also be a submission directed to the ultimate sentence.

[23]              I adopt a global starting point of 13 years, nine months’ imprisonment. This reflects your premeditated attempt to take life, and your impulsive but gratuitous taking of another’s life, each with a different weapon.

Personal circumstances

[24]              Before this case you had no convictions for violence beyond common assault in 1996. However, you do have a record of driving drunk (x 3); carelessly (x 2); and inconsiderately so as to cause injury. The Crown does not seek an increase because of your record.

[25]              Your other personal circumstances are outlined in a pre-sentence report. Before discussing them, I record the absence of a cultural report. Ms Green sought one, and gained approval for one, but the person who was to write the report had difficulty contacting you, presumably because of COVID-19-related difficulties.

7      Taiapa v R [2019] NZCA 524. The offending is less serious than R v Johnson High Court, Whangārei, T031987, 9 June 2004, in which a 10-year starting point was adopted. Johnson involved multiple victims. Johnson also involved a teenage offender who was humiliated immediately before the offending.

8      Hence a starting point a little higher than that advanced by the Crown.

[26]              I considered the interests of justice required we proceed today because I have already adjourned your sentencing not fewer than three times.9 The pre-sentence report is succinct but helpful. I consider I have sufficient information about you to fairly proceed.

[27]              You were 46 when you committed these offences. You have a daughter with Ms Matamua. She is now five. You were raised in Samoa. You come from a large family of 10 siblings but appear to have little contact with them. You report exposure to family violence and say your father physically abused you.

[28]              You appear to have been a good father; a hard worker; and a reliable employee. You have Church-based support; you regularly attended a Samoan church. Though you do have a criminal record, your offending is of a different character. In this sense, it is out of character. English is a second language. Prison may be harder for you because of this. I was also told this morning that you suffered a motor vehicle accident earlier in your life and that led to disability and hardship. You appear to have a longstanding but unaddressed problem with alcohol; a concern underscored by your more general criminal record.

[29]              Given this mix, I deduct a little over 16 percent for mitigating features. I have painted with a broad brush in selecting this figure because of the absence of a cultural report. It is important you not be disadvantaged by this. In my opinion you have not been.

[30]              Ms Green seeks a discount for remorse. You admitted to the Police that you wanted to kill Ms Matamua but you did not plead guilty. She had to testify and be cross-examined. There is no suggestion you offered to plead guilty to manslaughter. You made no concession at trial you deliberately ran down Ms Kaisala. All of the many scene witnesses had to testify and be cross-examined. It follows they had to re-live these events.

9      See my Minutes (numbered 9, 10 and 11) of 4 August, 27 September and 9 November 2021.

[31]The officer who wrote your pre-sentence report says you “failed to express any

… empathy” toward your former wife.10 You told that officer Ms Kaisala “shouldn’t have died”. You made similar remarks to the Police shortly after the offence and you did say to at least one Police officer that you were sorry about Ms Kaisala’s death. But, as observed, you did not plead guilty to manslaughter or accept at trial you had run her down. Moreover, you made no attempt to render assistance at the scene. You simply drove away as if nothing had happened. Consequently, I am far from persuaded of the existence of any tangible remorse on your part. I therefore make no allowance.

[32]              I now address something different. You told the pre-sentence report writer the devil told you to commit these offences and his “voice got louder and louder”. These observations raise the possibility—and I put it no higher than that—of mental illness. That said, you were a regular church goer, and it is quite possible these observations are nothing more than your rationalisation of very serious criminal offending. I raise the point only for completeness.

[33]              A Court may impose a minimum period of imprisonment if it sentences an offender to prison for more than two years. The Crown says I should impose a minimum period of 50 percent because parole eligibility after one third of your sentence would not sufficiently hold you accountable; denounce the offending; deter you and others from like offending; or protect the community.

[34]              The serious nature of the offences, including the violent and unlawful taking of  another’s  life,  make  a  strong  case  for  a  minimum   period.   The   Department of Corrections considers you pose a very high risk of harm, but it also considers your re-offending risk to be low.

[35]              Because your offending is out of character and your risk of re-offending low, I consider parole eligibility better addressed by the Parole Board. I impose no minimum period.

10     Dated 31 August 2021. I ordered the pre-sentence report be revised when the original report contained errors; see Minute (No 9), 4 August 2021.

[36]              The Crown seeks an order disqualifying you from driving for one year after you leave prison.11 I make the order with the caveat disqualification ends on your sentence expiry date.12

Sentence

[37]Mr Niumagumagu please stand.

[38]              For attempting to murder Puapuaga Matamua, you are sentenced to a term of 11 and a half years’ imprisonment.13 For the manslaughter of Sagaia Kaisala, you are sentenced to a term of seven and a half years’ imprisonment.14 Both terms run at the same time.

[39]              You are disqualified from driving for a year once you leave prison, again with the caveat I mentioned. It follows the effective sentence is 11 and a half years’ imprisonment.

[40]Stand down.

……………………………..

Downs J

11     Sentencing Act 2002, s 124.

12     Taiapa v R, above n 5.

13     The attempted murder charge captures the overall sentence.

14     The manslaughter sentence reflects a nine-year starting point less 16 percent for mitigating features.