R v Rihia

[2012] NZHC 2720

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-006759 [2012] NZHC 2720

THE QUEEN

v

RACHEL ANN RIHIA

Hearing:         17 October 2012

Counsel:         S Gray and EJ McCaughan for Crown

HDM Lawry for Prisoner

Judgment:      17 October 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:

S Gray/EJ McCaughan, Meredith Connell, Auckland:  [email protected]

HDM Lawry, Barrister, Auckland:  [email protected]

R V RIHIA HC AK CRI-2010-004-006759 [17 October 2012]

[1]      Rachel Ann Rihia, you appear for sentence having pleaded guilty shortly before trial to the murder of your estranged husband, Joseph Tom Rihia, by stabbing him at your home in Auckland on 13 April 2010.

[2]      You had been in a domestic relationship with Mr Rihia since 1998, and married since 2002, although it appears that you had living apart for about a year before Mr Rihia’s death.  The principal relevant features of your relationship, apart from your three children, were widespread alcohol abuse by both of you and considerable violence.

[3]      It is against that background, which I will discuss more fully in a moment, that Mr Lawry has submitted on your behalf that I should treat your case as one of those exceptional cases in which a term of life imprisonment should not be imposed.

[4]      It is important that I acknowledge the presence in Court of members of Mr Rihia’s family.  I assure the family members present that, in coming to my view as to the appropriate sentence to be imposed in this tragic and difficult case, I have had regard to the statements which have been given to me by family representatives, including two sisters, a brother, three daughters, a son and Mr Rihia's former wife, the mother of six of his children.  They have spoken also on behalf of Mr Rihia’s grandchildren who will never really know their grandfather.  Two family members have spoken eloquently of their loss in Court, and from different perspectives.   I have heard what all of you have said and written and you have my deepest sympathy.

[5]      It is no surprise that Mr Rihia’s murder has had a significant and lasting effect on the family, and it has divided them.   Some family members are angry at you; others are more forgiving; but it is clear that all of them feel profoundly the loss of a father, grandfather and brother.  Whatever failings he may have had, and whatever part his actions may have played in the background to this tragedy, Mr Rihia did not deserve to have his life cut short in this way.

[6]      One of his sisters has said, however, with commendable restraint, that really this process is about you and that, whatever happens to you, her brother Joe is gone and nothing I decide today will change that.

[7]      I turn then to consider what should be done to address your offending.  When a sentence of life imprisonment is imposed for murder, the Court must decide what minimum period of imprisonment the prisoner must serve.[1]   That is because a person sentenced to life imprisonment may nevertheless apply to be released on parole.  If paroled a prisoner may be liable to be recalled to prison to resume serving the sentence if they commit some other offence, or breach their release conditions, or are perceived in some other way as presenting a risk to the safety of the community.[2]

[1] Sentencing Act 2002, s 103(2).

[2] Parole Act 2002, s 61.

[8]      The minimum period of imprisonment which must be imposed is the time that must elapse before a person convicted of murder is eligible for parole and that must be a period of at least ten years.[3]  A minimum non-parole period longer than ten years may be imposed by the Court if that is necessary to hold a person accountable for the harm they have done to their victim and the community, to denounce their conduct, to deter them and others from committing similar offending in the future, or to protect the community.[4]

[3] Sentencing Act 2002, s 103(2).

[4] Ibid.

[9]      If  I  consider  it  would  be  manifestly  unjust  to  sentence  you  to  life imprisonment, and decide to impose a finite term of imprisonment instead, I may still impose a minimum period of imprisonment to be served before you become eligible for parole.[5]

[5] R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 at [100].

[10]     In considering the matters which have to be decided today, I look first at the circumstances  of Mr Rihia’s  death  and  then at  your  personal  circumstances  and background so far as they are relevant to explain your offending.

[11]     The agreed facts are that, on the day Mr Rihia was killed, he was at your home with your sister, her partner, and you.   The four of you had been drinking

heavily throughout the day when you got into an argument with Mr Rihia over your seven-year-old daughter.  She had been removed from the home earlier that day, by CYPFS staff who had visited the address and had become concerned both about Mr Rihia’s presence at the address and the consumption of alcohol.  The argument over your daughter’s removal by CYPFS escalated into a physical confrontation outside the house in which you threw a stereo speaker at Mr Rihia, hitting him on the head.  He was assisted inside the house and lay down on a couch in the lounge area. You continued to abuse Mr Rihia verbally, but it is accepted that he was heavily affected by alcohol and made no attempt to retaliate or defend himself.

[12]     While he was lying on the couch, you picked up two knives from the kitchen, holding one in each hand.  You walked over to Mr Rihia and stabbed him once in the chest  with  the  knife  you  were  holding  in  your  left  hand.    The  knife  pierced Mr Rihia’s heart.

[13]     The Police and the ambulance service were called and they found Mr Rihia slumped  over,  unconscious,  and  apparently not  breathing.   You  were  in  a  very distressed state.  Attempts to revive Mr Rihia failed and he was pronounced dead on arrival at the hospital.

[14]     You gave no explanation to the Police for the stabbing, but in evidence to the Court you said that you had let Mr Rihia know that you were angry because his presence at the house led to your daughter’s removal by CYPFS.  You also said you were disappointed with yourself for allowing yourself to be drawn into the drinking. You said you knew Mr Rihia was going to bash you for criticising him and out of jealousy.  Mainly, as I understand it, you considered his actions to be responsible for your losing your daughter again.  You said you felt you had lost everything and just snapped.  When I asked you whose fault it was that your daughter was taken away that day, you frankly acknowledged to me that it was your own.

[15]     I think it is important to say that there is no evidence that Mr Rihia threatened you or posed any immediate threat to you at the time you stabbed him.  He was far too affected by alcohol and was defenceless on the couch when he was attacked.

[16]     At the time of Mr Rihia's death, he was 57 years old and you were 45.  The violence of your relationship is demonstrated by the 36 incidents between Mr Rihia and you attended by the Police over the period of 11 years up to May 2009.  The Police noted that alcohol was involved in 23 of those incidents.  On 33 occasions, according to the Police, Mr Rihia was the primary aggressor but on three of those occasions, including one in which you attacked Mr Rihia repeatedly over the head with a table leg, you were the attacker.  It is reasonable to infer that there were far more than only three or four violent incidents a year while you were together, but it does appear that, between May 2009 and Mr Rihia’s death in April 2010, the Police were not involved.

[17]     The  members  of  Mr Rihia’s  family  who  have  provided  victim  impact statements to the Court confirm their knowledge of your violent relationship, and some of have commented that, although they are naturally greatly distressed by Mr Rihia’s death, they are not entirely surprised that your relationship came to a violent end.

[18]     There was much violence and alcohol abuse in your past before you met Mr Rihia.   Your parents were both alcoholics and it was  your father’s  violence towards you which required your removal as a child to the care of your grandparents. You began abusing alcohol yourself while at secondary school and, as your criminal history reveals, you began committing burglaries and theft at an early age: you say, to obtain alcohol.  You have numerous convictions for driving with excess breath or blood alcohol, sometimes of amounts well in excess of legal limits.  Apart from a conviction for assault on Mr Rihia, your offending since 1983 is all alcohol-related. I disregard it for present purposes except as a clear indicator of the extent to which you have a serious and long-standing alcohol problem.

[19]     Your first marriage, from which you had seven children, was also a violent one; CYPFS were required to take your children into protection.  This dysfunctional lifestyle  continued  in  your  relationship  with  Mr Rihia  and  there  is  a  clear  link between it and your offending.   It was the further intervention of Social Welfare services in the interests of protecting your seven year-old and youngest child from

the environment in which you were bringing her up that was the immediate cause of the fatal confrontation between Mr Rihia and you.

[20]     The clinical psychologists, who examined you for the purpose of reporting to the Court, refer to this background.  They say you have a personality structure which may  be  described  as  a  “complex  post-traumatic  stress  disorder”  related  to  the violence of your relationships, and that you have a “borderline personality disorder”. It is said these personality disorders are characterised by alcohol abuse, emotional dysregulation, outbursts of anger and feelings of abandonment.

[21]     The  factors  which  the  psychologists  have  concluded  led  to  your  fatally stabbing Mr Rihia are the longstanding history of violence within your relationships and within this relationship in particular; the recent uplifting of your daughter by social workers; Mr Rihia’s remaining at the house; your emotional dysregulation and propensity  for  angry  outbursts;  your  claimed  fear  of  a  retaliatory  beating  by Mr Rihia; and significant alcohol intoxication.  They do not attempt to specify the relative weight to be given to those factors as contributors to this offence, but agree that the salient or most significant factors are likely to be your emotional dysregulation in the context of significant alcohol consumption.

[22]     In considering the personal factors which are relevant to your sentencing, I record also that, although you would not give the Police any explanation when first interviewed about this tragic event, and although it was some months before you entered your guilty plea, you did not ever seek to excuse your actions.   As your guilty plea and the evidence you gave to the Court make clear, you now accept responsibility for what you did.   I accept also that although you were angry with Mr Rihia for his part in the circumstances which led to your daughter’s removal by the  social  workers,  you  were  angry  with  yourself;  that  you  felt  you  had  lost everything when your daughter was taken; and you just snapped.

[23]     I need to make it clear that the law prevents me taking into account, as a mitigating factor or excuse in relation to your offending, the fact that you were

obviously seriously impaired by alcohol at the time Mr Rihia was stabbed.[6]  I do not

take that into account as an excuse.   However, I have regard to the personality disorders from which you suffer and which have, as the reports make clear, their origin in longstanding physical abuse by others since childhood and the abuse of alcohol over many many years.[7]   While intoxication was a factor in your offending, it was the loss of your child and the impaired ability to deal with that event which, in my view, was the key factor in the over-reaction which led to Mr Rihia’s tragic

death.

[6] Sentencing Act 2002, s 9(3).

[7] Wihongi at [55].

[24]     In considering whether it would be manifestly unjust to sentence you to life imprisonment it is necessary, in having regard both to the circumstances of the offence and  your personal circumstances, for me to consider whether this is an exceptional case in which the injustice of sentencing you to life imprisonment is

clear.[8]   There is a strong presumption in favour of life imprisonment for murder but

the circumstances in which the courts have previously held that life imprisonment would be manifestly unjust include cases which have some similar circumstances to yours.

[8] R v Rapira [2003] 3 NZLR 794 (CA) at [121].

[25]     The  case  to  which  I  have  given  the  closest  attention  is  R  v  Wihongi.[9]

Following an appeal in that case, a period of 12 years’ imprisonment was imposed without a minimum non-parole period.  Ms Wihongi and her victim had been in a longstanding relationship.  He was the father of five of her six children but, as in this case, they were not living together at the time of his death.  There was an afternoon of drinking involving both Ms Wihongi and the victim and an argument over money developed.     There  was  a  period  during  the  afternoon  when  the  victim  and Ms Wihongi  were  apart,  again  as  in  this  case,  but  after  the  victim  returned  to Ms Wihongi’s house the argument about money continued.

[9] R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.

[26]     It was accepted by the sentencing Judge and by the Court of Appeal, although it was not seen as a significant factor, that there had been a demand by the victim for sex from Ms Wihongi and that she refused.  The victim walked out of the house but Ms Wihongi got a knife from the kitchen and followed him out, holding the knife.

While Ms Wihongi and the victim were on the path outside the house Ms Wihongi

lunged at him stabbing him hard in the chest.  There were two stab wounds.  The victim did not die immediately but drove his car away a short distance when it crashed.  Ms Wihongi continued to try to attack the victim, although it appears not with the knife.

[27]     She had a background similar to yours of alcohol abuse since her teen years and of a longstanding violent relationship fuelled by alcohol and containing violence by both parties.   Ms Wihongi also was said to suffer from post-traumatic stress disorder,  anxiety  and  depression.     It  was  said  that  she  was  psychologically vulnerable; that she had limited ability to make judgments, and suffered significant cognitive impairment – that is, the ability to reason things.  In the assessment of the specialists  who  examined  her,  Ms Wihongi  posed  some  future  risk  of  violent offending.  While holding that the effects of alcohol at the time of the offending had no relevance, the Court of Appeal accepted that Ms Wihongi’s impairments resulting from her appalling childhood and background played a part in her offending.   In Ms Wihongi’s  case  she  was  suffering  from  brain  damage,  but  absence  of  that physical element here does not, in my view, necessarily take your case out of the same category as the offending there.

[28]     I am satisfied in your case also that you would not have stabbed Mr Rihia to death had it not been for the significant mental impairment you suffer through years of alcohol abuse and physical abuse most recently, until you parted with him, at the hands of Mr Rihia himself.  It was that background of abuse which led to all three of your children of that relationship being taken from you.   I am satisfied that the immediate cause of your offending was the further and final repetition of those distressing events and that they led you to 'just snapping', as you said.

[29]     You told me that when your daughter was taken away that day you 'cried and cried and cried and cried and cried and cried'.  I do not doubt that.

[30]     I see the extreme reaction to your despair at losing your youngest child as being rooted firmly in the abuse you had suffered at the hands of Mr Rihia and others throughout your life, resulting in the psychological consequences which have been described.  While a lengthy sentence of imprisonment is necessary to denounce the

taking of Mr Rihia’s life, to hold you accountable for your actions, and to protect the community from you at present, I do not regard life imprisonment as being a just outcome in this case.   You recognise your responsibility for what happened, and pleading guilty to murder - knowing that you faced the prospect of life imprisonment

-  was  in  many  respects  courageous,  and  a  significant  step  on  the  path  to rehabilitation.

[31]     Having reached the view that a finite sentence of imprisonment should be imposed upon you, I turn to consider the length of that sentence and whether a minimum non-parole period is necessary.

[32]     Taking all of the relevant sentencing factors into account, including the need for denunciation, deterrence and community protection, and being mindful of the similarities of this case to the Wihongi case, I regard 12 years’ imprisonment to be an appropriate starting point to reflect the offending.

[33]     I then need to give you credit for your guilty plea.  It was not entered at the earliest possible stage but after periods of assessment and consideration of a number of legal issues.  I regard a discount of two years from that period to be appropriate. That makes the appropriate sentence one of ten years’ imprisonment.

[34]     On that basis, you would be eligible for parole after three years and four months.   I have given very careful consideration to whether a minimum period of imprisonment should be imposed.[10]    A minimum term is not sought by the Crown and I am satisfied that the decision as to when it is appropriate to release you on parole is a matter which can be more properly assessed by the Parole Board in due course.  No doubt the Board will take into account whether you have successfully

undertaken such courses of treatment or counselling for your alcoholism and your personality  disorders  as  may  be  available,  and  will  assess  what  risk  to  the

community you to pose at that time.

[10] In light of the factors set out in s 86 of the Sentencing Act 2002.

[35]     Ms Rihia will you please stand.   For the reasons given, I consider that it would be manifestly unjust to sentence you to a term of life imprisonment.  Instead, you will be sentenced to imprisonment for ten years.

[36]     I direct that the Probation Officer's pre-sentence report; the psychologists' reports  and  evidence  presented  to  the  Court;  and  these  sentencing  notes,  be forwarded to the Department of Corrections.  Please stand down.

.............................................

Toogood J