R v Pokoati HC Welllington CRI 2009-085-7527

[2011] NZHC 338

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-085-7527

THE QUEEN

v

FRED JOHN POKOATI

Hearing:         6 May 2011

Counsel:         M Snape for Crown

G King and B Hunt for Accused

Judgment:      6 May 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Pokoati, you appear for sentence having pleaded guilty to manslaughter. Firstly I turn to the facts.

[2]      On  the  evening  of  3 October  Mr Sipili  had  been  looking  after  his  three younger children at home.   His older son and girlfriend were present.   You and Mr Townley,  your  co-accused,  had  been  drinking  that  evening.    You  went  to Mr Sipili’s house because you wanted to watch a boxing match on television.  You asked him to go to the local bottle store and he purchased more alcohol there.

[3]      Eventually he returned and the three of you began drinking around the dining table.  Late in the evening you and Mr Sipili began talking about an allegation that he had hit his wife who was your aunt. The discussion became heated. You stood up

from your chair and began punching Mr Sipili around the head with a closed fist.  He

R V FRED JOHN POKOATI HC WN CRI 2009-085-7527 6 May 2011

tried to get up but you continued punching him and Mr Townley, your co-accused, joined in.

[4]      Mr Sipili was punched in the head numerous times.  He began falling to the ground.   As he did so, Mr Townley kicked him in the head.   He then fell to the ground and both of you continued to punch him as he lay there.  Afterwards there was blood splatter found in the area and vomit containing blood was also found.  It is clear that eventually he was knocked unconscious.

[5]      Although it must have been obvious to you that he was seriously injured you did not try to get any medical assistance. You fell asleep in the lounge.

[6]      Early the next morning you awoke and I am satisfied you must have seen the extensive bruising and swelling to Mr Sipili’s eyes, mouth and face.   He was still lying where he had been.  He had laboured, shallow breathing.

[7]      You rang another aunt and asked her to come to the address.  An hour or so later, you rang your sister and asked her to come.   Shortly afterwards Mr Sipili’s eldest  son  came downstairs  and  saw the victim  with  the extensive injuries  and immediately rang the ambulance.  I am satisfied that neither you nor Mr Townley got Mr Sipili any medical treatment yourself at all.

[8]      When the ambulance arrived they transported Mr Sipili to the Wellington Hospital.  He went to the intensive care unit.  He had extensive bruising and swelling to his brain and an acute subdural bruise on the left side of his brain and severe brain swelling.   It was considered at the time that the injuries were unlikely to be survivable.

[9]      Eventually his condition stabilised but due to the head injuries he remained unconscious, required assistance to breathe and to be fed.  It eventually became clear that he was in a vegetative state and some months later in May he died.

[10]     Initially you lied to the police but later admitted your involvement.

[11]     I have  read  the  pre-sentence  report.   You  have  a bad  history of  serious violence.  In 2009 you were sentenced to twelve months’ imprisonment for injuring with intent to injure and at the end of 2008 to prison for common assault.  In 2007 you were probably fortunate to be given a lengthy period of community work on a charge of assault with intent to injure and you have a number of other convictions mostly for property offending and drink driving offences.

[12]     At the time of your offending you were on release conditions from your previous sentence of imprisonment.   I acknowledge having read the pre-sentence report that you had an abusive and violent childhood with little attention ever given to your own needs.

[13]     You  said  to  the  probation  officer  that  you  did  not  realise  the  extent  of Mr Sipili’s injuries until sometime later that morning.  I find that difficult to believe. You beat the man into unconsciousness.  When you woke the next day he was still in the same place and the injuries must have been obvious to you.

[14]     As to your view of the offending a letter from you is attached to the probation report.  While it does express some remorse primarily, in my view, it is a description of how these events will affect you. You allege firstly that the offending began when your uncle, for some reason as you say, began to “provoke some attention by raising the previous incident with your aunt”.

[15]     Further, you then claimed that this was a fight in which you were trying to physically control Mr Sipili and to defend yourself from being hit.  You suggest that it was somehow your co-offender’s intervention that made it worse.  You describe how this was a “disturbing experience for you”.  You describe days when you get distressed and emotionally frustrated and how difficult it is for you to get through the day when jail is an unwanted part of your life.  Only at the end do you mention the loss to Mr Sipili’s family and your regret.

[16]     Most of the letter is a description by you which tries to justify your offending and describes the affect on you.   None indicates true remorse to me.   It does not illustrate any depth of understanding that you have about the cost of your actions on

Mr Sipili’s  family.    Nor  did  your  most  recent  letter  convince  me  of  your  true remorse.  It was really too little too late.

Crown submissions

[17]     The  Crown  say  that   this  offending  involved  two  attackers  targeting Mr Sipili’s head with extreme violence to a vulnerable victim where the victim has died.  They say there is no basis to distinguish between you and your co-accused.  A starting point of at least nine years’ imprisonment they say is appropriate before any mitigation. They say an uplift for previous violent offending is appropriate.

Defence submissions

[18]     I take into account the submissions that have been made by Mr King, both orally and in writing.  He says that the incident was triggered by a domestic incident some two weeks earlier which left an underlying and unresolved grievance resulting in this family argument.

[19]     He says that when you discovered the extent of the injuries an ambulance was called immediately but I have already made my view of this clear.

[20]     He says that you are deeply remorseful for these events as reflected in a letter that you wrote at the time of the pre-sentence report and in a second letter.  But again I have already expressed my view of your claimed remorse.

[21]     As to your personal circumstances Mr King has stressed your very difficult childhood.   He says this was a spontaneous alcohol fuelled family argument that went  devastatingly  wrong.     He  points  out  there  were  no  weapons  and  no pre-meditation.  He says a starting point of seven years is appropriate with credits for your guilty plea and remorse totalling thirty per cent.   He says there should be no minimum period of imprisonment.

Victim impact

[22]     I wish to acknowledge the Sipili family and the tragic family victim impact effect that this death has had.  I have read all of the victim impact reports.  I take them into account.   I acknowledge today the courage that it took for those of you who read the victim impact statements.   I understand the severe loss there is of Mr Sipili as a father to his children, as a husband, a brother, a friend and a son.   I understand the stress that there is arising from his death, the fact that he was killed in his own house by someone who knew him is especially difficult for you to come to terms with.

[23]     The victim impact on his children will of course be substantial.  They will grow up without a father and his family has lost a much loved man.

Discussion

[24]     In my view this was a particularly brutal assault I am sure fuelled by alcohol. You and your co-accused caused considerable further damage to Mr Sipili after it must have been clear to you he could not defend himself.   He was kicked but primarily he was repeatedly punched in the head.  This would all have contributed to the brain trauma and ultimately his death.

[25]     You  claim,  in  part,  that  this  event  was  provoked  by  an  allegation  that Mr Sipili had assaulted your aunt on a previous occasion.  Little detail is given of the background circumstances.  Indeed in your letter to the probation officer you seem to suggest that somehow Mr Sipili raised this event and that he became violent and you were simply responding.  The claim provocation plays little part in my sentencing today.

[26]     The factors that influence me as to the appropriate start sentence are the fact that two of you were involved in the beating; the events occurred in the victim’s own home;  the  two  of  you  had  rendered  him  unable  to  defend  himself  when  you repeatedly punched him in the head; this was a prolonged and vicious beating; and you gave no help at all to the victim indeed you deliberately ignored his condition.

As I have said I reject your claim that you rang an ambulance immediately you were aware of his condition.  After you beat him, you left him on the floor and when you awoke it must have been obvious what his serious injuries were.

[27]     Your obvious intoxication does not assist you  at sentencing.   I consider, therefore, as the Crown have urged me, that a start sentence of nine years’ imprisonment is appropriate.  I accept that you were the one who began the violence that day and your co-accused later joined in.

[28]     I acknowledge your guilty plea.  You offered this guilty plea after the first callover  in  the  High  Court  and  when  that  was  accepted  by  the  Crown  you immediately pleaded guilty.  I acknowledge it was given at the earliest opportunity. However, I consider a conviction for manslaughter in the circumstances was inevitable.  The evidence was overwhelming and there was a form of confession by you.

[29]     There are in my view two aspects of your sentencing that will be different from Mr Townley’s.  Firstly, as I have said, I see no genuine remorse at all for your part in these events.

[30]     Secondly, there is a justification for an uplift from your start sentence given your history of violence and the fact that you were still subject to part of a sentence for violent offending when you killed Mr Sipili.

[31]    I increase your start sentence by six months to nine years six months’ imprisonment for your previous offending.  I deduct twenty per cent for your guilty plea but none for remorse making a final sentence of seven years seven months’ imprisonment.

[32]     I  am  also  satisfied  this  is  a  proper  case  for  a  minimum  period  of imprisonment for the reasons I have identified given the facts of the offending.  In this sentencing deterrence and denunciation are very important.

[33]     Further, as I have identified, you have a past record of violent offending and this offending of course involved extreme violence and the death of Mr Sipili.

[34]     I impose a minimum period of imprisonment, therefore, of three years ten months’ imprisonment.   That is not to say of course that you will necessarily be released at that time.

[35]     You are, therefore, sentenced to seven years seven months’ imprisonment

with a minimum period that I have identified.

Ronald Young J

Solicitors:

M Snape, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]

G King, Barrister, Lower Hutt, email:  [email protected]