R v RAK

[2024] NZHC 1519

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF YOUNG PERSON UNDER THE AGE OF 18 YEARS BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-092-009777

[2024] NZHC 1519

THE KING

v

RAK

Hearing:	11 June 2024
Appearances:	B Vaili and C Best for Crown K-A Stoikoff for Defendant
Sentenced :	11 June 2024

REDACTED SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker Ltd, Manukau

Public Defence Service, Auckland

R v RAK [2024] NZHC 1519 [11 June 2024]

[1]    RAK, you are for sentence this morning having pleaded guilty to one charge of attempted murder and one charge of kidnapping. The maximum penalty in each case is 14 years’ imprisonment.

[2]    I take the background from the summary of facts you pleaded guilty to. On 24 November 2022, you and SUK, who you had married about 2002 before you moved to New Zealand in 2005, were at home. You were suspicious of her, as you believed she was planning to meet another man. In the early afternoon, she distracted you by encouraging you to go to the garage. She left the home and began walking away. You opened the garage door, pursued her and tried to stop her by grabbing at her and pulling at her dress. She yelled at you, which resulted in you putting your hand over her mouth. She bit your finger. You released her and she walked away down the road. You got into your Holden truck and followed her. You caught up with her and told her to get into it. She refused. You parked your truck and ran to confront her. You had a knife with you. You told her that you had the knife. You said “I’ve got a knife here, get in the car before I stab you”. You took her by her left arm and marched her to the front passenger’s seat. Once she was in the truck you took her phone off her and drove away.

[3]    You rang one of your sons from a previous marriage, REK, while SUK was in the truck with you. You detained her against her will for several hours, driving to various locations around the Coromandel, all the time maintaining possession of the knife. At one point you stabbed yourself in the leg. You told her you “wouldn’t have done this” if she had listened to you. You told her to keep quiet or you would do something crazy.

[4]    At about 7.30 pm in the evening you drove back towards Auckland. On the way you called another son, RIK, instructed him to buy food, Panadol, cigarettes and to meet at a property in Boundary Road, Papakura.

[5]    RIK and REK were waiting for you when you got there. When RIK approached you, you told him “I have a knife here, just leave the food and go wait in the car while we eat and then we can have a talk”. You later called him to join you in your truck. You then drove him and SUK to a construction site in Drury. REK

followed in the other car. RIK spoke to you and SUK and eventually de-escalated the situation. You apologised and handed the knife over to him. You asked SUK and RIK to keep the incident between them. They agreed. The Police were not notified of the incident at the time.

[6]    Just over a week later, on 3 December 2022, you had been drinking at your home. At about midnight [REDACTED], after preparing food went to bed. She was sleeping in her own bedroom with her sister. At about 3.00 am in the morning (now on 4 December 2022) you went into the bedroom. You woke her and motioned her to follow you. You led her to the garage. You told her to sit in a chair and stood in front of her. [REDACTED]. When she attempted to stand up and leave you told her to sit back down. She complied. You were carrying a fish-filleting knife with a black handle.

[7]    Without speaking further you walked behind the victim and stood behind her while she was sitting on the seat facing away from you. You grabbed her by the hair, pulled her head backwards, and exposed her front and neck. You then used the knife to slit her throat. You caused a long horizontal laceration across the front of the victim’s neck, from the left of the midline, across the midline, and across a large part of the right side of her neck. The laceration cut through the strap muscles on the front of her neck. The trachea (or windpipe) was exposed. There was a superficial laceration of the thyroid cartilage. The right external jugular vein was cut. The right great auricular nerve was cut. Major arteries were damaged. Fortunately, and remarkably, the laceration narrowly missed the carotid artery. Nevertheless she began bleeding heavily and collapsed on the floor. As she did you pushed her head down and put your fingers in her mouth to prevent her screaming. However, her screaming had woken other members of the household. REK entered the garage and found you standing over the victim as she was on the ground. You left the garage holding the knife and went towards SUK’s bedroom. RIK prevented you from going further by wrapping his arms around you. In the course of doing this, his hand was cut. You were ultimately disarmed and left the address, the home, while the other members of the family attended to the victim and took her to hospital.

[8]    In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002 to the extent they are relevant. In your case a number of the relevant purposes are engaged. The sentence the Court imposes must hold you accountable for the harm done to the victims of your offending and also the community by offending of this nature.

[9]    The victim impact reports of both SUK and the victim make it very clear the impact your offending has had on both of them. Their lives will never be the same as a result of your actions.

[10]   The sentence must also promote in you a sense of responsibility for and acknowledgement of that harm and provide for the interest of the victims. The sentence must denounce your conduct and deter you and others from committing the same or similar offending. Finally the Court must consider your rehabilitation and reintegration in due course.

[11]   The particularly relevant principles in your case are the gravity of the offending, and particularly your culpability, your responsibility for your actions. The Court is also required to take into account the desirability of consistency with other sentences for similar offending. Finally the Court is required to take into account your personal circumstances and impose the least restrictive outcome appropriate in all those circumstances. In your case, the end sentence will of course be one of imprisonment for a number of years. The issue is how many years.

[12]   The Crown submits the starting point of 11 to 12 years’ imprisonment for the attempted murder is appropriate with an uplift, having regard to totality of 18 months’ imprisonment for the kidnapping. That would lead to an adjusted starting point of 12½ to 13½ years. The Crown accepts you would be entitled to a 15 per cent discount for a guilty plea but suggests there could be a further uplift for your previous relevant convictions and seeks a minimum period of imprisonment of at least 60 per cent.

[13]   Ms Stoikoff submits the appropriate starting point is nine and a half years’ imprisonment for the charge of attempted murder. She accepts an uplift of two and a half years would apply for the kidnapping but taking account of totality submits the

global adjusted starting point of 10½ years would be appropriate. She also argues for the discount of 15 per cent for the guilty plea but in addition seeks a further discount of eight months for the time you spent on restrictive EM bail conditions.

[14]   The first issue for the Court is to fix the starting point for the offending itself. There is no guideline judgment for attempted murder as it covers a wide range of factual circumstances. The guideline judgment of R v Taueki,1 for serious violent offending provides some assistance. In the present case there are a number of aggravating features to your offending. First, there was of course extreme violence. The act of using a knife to slit the victim’s throat was extremely violent and unprovoked.  Next, the use of the weapon, the knife, the blade of which was about  15 cm long. Related to that is the fact the attack was to the victim’s head, inasmuch as the attack was to her neck and throat area. Next, the victim suffered serious injuries as a result of your attack and emergency surgery was required to save her life. She is still suffering from the effects of your offending. There was also an element of premeditation considering that you went to the victim’s bedroom in the early hours of the morning, woke her up and told her to follow you to the garage where the incident took place.

[15]   In my assessment a major aggravating factor in this case is the vulnerability of the victim. She was just 11 years of age. You were, in her eyes, her father. This was an egregious breach of trust. There was an inherent power imbalance between you and her. She should have been entitled to feel safe in her own home but the power imbalance was made clear when she attempted to leave but sat back down when you told her to do so. Also your attack must have come completely as a surprise to her as you were behind her and in the circumstances she could not have anticipated the savage attack you inflicted on her.

[16]   As I have said, inevitably the harm you have caused her will be for an ongoing period of time in terms of the emotional harm. There are no mitigating factors to the offending.

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

[17]   Counsel have referred to a number of decisions: R v Pengelly and R v Tipua in relation to the attempted murder;2 and R v Muavae and R v Mataia in relation to the kidnapping.3 In Pengelly, Mr Pengelly had slit a victim’s throat. The Court took a starting point of nine and a half years. However I agree with the Crown submission that in this case the victim’s youth and vulnerability and the grave breach of trust elevate the gravity well beyond that in Pengelly. In Tipua a starting point of 12 to 13 years was considered appropriate. I accept that the incident and the violence was more prolonged in that case.

[18]   I consider that a starting point of 11½ years is appropriate for the attempted murder charge. In fixing that I test it by taking account of an example the Court of Appeal referred to in Taueki for a serious domestic assault:4

In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 [which is nine to 14 years] range may well be required; …

[19]   There is then the issue of the uplift for the kidnapping. On the charge of kidnapping I have had regard to the cases counsel have referred to and also the observations of the Court of Appeal in R v Wharton and R v Muavae.5

[20]   The kidnapping itself was serious. It involved the use of violence, or threats and the sustained detention of SUK over a lengthy period of time. On its own it would warrant a sentence approaching three years’ imprisonment. I consider an uplift of 18 months to take account of totality is appropriate. That leads to an adjusted start point for sentence of 13 years.

[21]   I then turn to your personal aggravating and mitigating factors. While you do have previous convictions for male assaults female and behaving threateningly they

2      R v Pengelly [2013] NZHC 527; and R v Tipua HC Auckland CRI-2005-092-2219, 22 March 2005.

3      R v Muavae CA238/00, 5 September 2000, [2000] 3 NZLR 483; and R v Mataia [2009] NZCA 203.

4      R v Taueki, above n 1, at [41](b).

5      R v Wharton (2003) 20 CRNZ 109 (CA); and R v Muavae, above n 3.

are from 2007 and 2012. A number of years have passed since those convictions and I do not consider they warrant an uplift.

[22]   The principal mitigating factor is your guilty plea. Although it came late in the piece, I allow 15 per cent for that. The victims have been spared the anguish of a trial.

[23]   You have also been on electronically monitored bail since February 2023 on a 24-hour, seven day curfew, although it was varied to enable you to attend a temple for three hours each Monday and for other exemptions. An allowance of six months for the restrictive bail conditions is appropriate in my judgment.

[24]   There can be no allowance for remorse. In your discussions with the probation officer it is apparent you did not accept or indicate any accountability for your offending, suggesting the kidnapping was warranted due to your wife’s actions and you seem to have no insight at all in relation to the attempted murder, suggesting you care about your family. Any concern you have expressed seems to be entirely directed at the position you find yourself in.

[25]   The Crown have sought the imposition of a minimum period of imprisonment (MPI) greater than the standard provided. Ms Stoikoff makes the point that you will probably face deportation at the end of your sentence and as a result will not pose a risk to the victims or the community.

[26]   However, in my judgment, the imposition of an MPI on the charge of attempted murder is necessary in this case to achieve the purposes of holding you accountable for the harm done to the victim and to the community by such offending and also to properly denounce your reprehensible conduct towards the victim. I will impose a minimum non-parole period of two-thirds on that particular charge.

[27]   RAK please stand. The total end sentence the Court imposes on you is 10½ years.

[28]   It is structured in the following way. On the charge of attempted murder you are to serve a sentence of nine years. On the charge of kidnapping you are to serve a

sentence of one and a half years, cumulative on the sentence of imprisonment for the attempted murder. The total imprisonment sentence is 10½ years.

[29]   On the charge of attempted murder you are to serve a minimum non-parole period of six years. Stand down.

Venning J