R v Tagatauli
[2016] NZHC 757
•21 April 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-091-565 [2016] NZHC 757
THE QUEEN
v
AALIYAH TAGATAULI
Hearing: 21 April 2016 Counsel:
J A Eng for Crown
L C Ord and N I Burt for DefendantSentence:
21 April 2016
SENTENCING NOTES OF CLIFFORD J
[1] Ms Tagatauli, you appear for sentencing today having pleaded guilty to the manslaughter of Mura Tagatauli. That offence carries a maximum penalty of life imprisonment.
[2] Ms Tagatauli, I provided you with a sentence indication on 23 March this year. I indicated a sentence of home detention for 12 months. Your guilty plea was entered shortly after that indication. I now sentence you on the terms I indicated.
[3] [In Court, when sentencing Ms Tagatauli, and because these matters had all been covered in detail at the time of her sentencing indication, I summarised what now follows.]
[4] As I said when I provided that sentencing indication, the events which have
brought Ms Tagatauli and Mr Tagatauli’s family and friends here today are tragic. It
R v TAGATAULI [2016] NZHC 757 [21 April 2016]
is my job to sentence Ms Tagatauli in accordance with the law. The law does its best to respond to tragedies such as these but, as we all know, cannot do so in a way that adequately addresses the emotional impact of such an event on all involved.
The offending
[5] Mr Tagatauli died in Wellington Hospital on 12 March 2015, the day after he had been stabbed by you in the course of an incident of domestic violence. The charge of manslaughter reflects what the Crown considers to be the proper characterisation of your responsibility, that is your criminal responsibility, for the death of Mr Tagatauli. That is: the Crown accepts you did not intend to kill Mr Tagatauli – or to cause him bodily harm likely to cause death. You were originally charged with murder. The charge of manslaughter to which you plead guilty reflects the Crown’s view of your culpability.
[6] The agreed statement of facts, which is the basis on which I sentence you, records that in March 2015 you were living with Mr Tagatauli at an address in Porirua. You were 28, Mr Tagatauli 37. You and Mr Tagatauli had been in a relationship since early 2013. During that relationship you adopted the Tagatauli surname by deed poll. That has caused tensions between you and his family. You now wish to be known by your previous name, Amanda Taitapanui. I acknowledge that wish. However, as your legal name remains Tagatauli, it is as Ms Tagatauli that I will refer to you.
[7] At the time of Mr Tagatauli’s death, you and he had had one child together. You were at that time, although not known to you, five weeks pregnant with your second child together. You have since given birth to that child, another daughter. You have three other children from a previous relationship. Those children also resided with you at the Porirua address. Mr Tagatauli also had three children from previous relationships. Those children did not live with you.
[8] You and Mr Tagatauli had an extensive history of family violence. I return to that history, and its significance, later in these remarks.
[9] On the evening of 11 March you were at your home in Porirua. Mr Tagatauli was on electronic bail on charges of assaulting you. Earlier in the day several of Mr Tagatauli’s associates had been present at the house. All were intoxicated, after consuming alcohol. Earlier in the day Mr Tagatauli had assaulted you. After the associates left, an argument began. He also assaulted you again during that argument. The Crown accepts that the injuries described by Ms Ord in her submissions were caused by that violence.
[10] As I said, after Mr Tagatauli’s associates left an argument began. Mr Tagatauli went upstairs and you followed. At some point in the evening you came into possession of two kitchen knives, carrying one in each hand. At an unknown point in the ongoing argument you lashed out and stabbed Mr Tagatauli once in the chest and once in his right shoulder, causing small wounds to open. The argument continued. Mr Tagatauli went to go downstairs intending to leave the address. You followed him. The argument continued downstairs. As you argued, you stabbed Mr Tagatauli in his left thigh. The stab wound severed his femoral vein, causing a significant and rapid loss of blood. It is accepted that when the stabbing occurred there was only one knife in your possession
[11] Ambulance and police staff were called. When they arrived you were found providing first aid to Mr Tagatauli.
[12] As a result of his injury and the severe and rapid loss of blood, and notwithstanding the best efforts of the ambulance and police staff, Mr Tagatauli died in the early hours of the next morning, 12 March 2015, at Wellington Hospital.
Victim impact statements
[13] We have heard the victim impact statements from Mr Tagatauli’s parents, Colleen and Jeff and his sister Stacey. His brother Cori and Cori’s partner Darna, and Mr Tagatauli’s former partner, and the mother of his son, Tia Harvey have also provided a victim impact statement.
[14] The family all speak of the great sadness they felt at the time of
Mr Tagatauli’s death and the ongoing impact that has had on them and their families
and their mental and emotional wellbeing. Ms Harvey speaks of her concerns with the impact that the knowledge his father was killed may have on her son as he grows up.
[15] I accept without hesitation the suffering and sadness caused by Mr Tagatauli’s
death to his family.
Letters of support
[16] I have also received letters of support for you. Old friends speak of your friendship and support. Others, who have supported you since the very sad events of March 2015, speak of your sadness and anxiety following Mr Tagatauli’s death when you were moved away from the Wellington area. Representatives of Whānau Awhina Women’s Refuge write of your struggle to get your life back together, and your courage and commitment in having the baby you did not know you were five weeks pregnant with at the time of Mr Tagatauli’s death.
Your letter
[17] You have written a letter to the Court. In it you express your own remorse for your actions. You say you wish you could bring Mr Tagatauli back but know you cannot. You say you loved Mr Tagatauli and never wanted this to happen. You would not wish it upon anybody. You realise that no amount of words or actions on your part can console Mr Tagatauli’s family for their loss. You apologise for the pain you have caused.
Department of Corrections advice to the Court
[18] I have also been provided with a report by a probation officer for the Department of Corrections. That report confirms the domestic violence you suffered, and your remorse, which the officer assesses as being indisputably genuine and strongly felt, and that you take full responsibility for your actions. I return to that report later in this sentencing.
Approach to sentencing
[19] In order to determine your sentence, I must first set a starting point, or provisional, sentence to recognise the seriousness of what you did. I then have to consider personal factors which may increase or reduce that sentence before giving you credit for your guilty plea.
[20] In terms of the first step, setting a starting point by reference to the serious of your offending, I am to set that starting point by reference to sentences that have been imposed in similar cases of manslaughter in the past. As the courts have said many times, manslaughter encompasses a wide range of facts and circumstances and a wide range of responsibility, of criminal culpability, and therefore of appropriate sentences. What I am to do is to set your sentence by reference to similar types of manslaughter.
[21] On that basis, I have been referred by the Crown and Ms Ord in their written submissions to a similar range of cases.1
[22] All of those cases share important similarities with the facts here. They all involve charges of manslaughter, following the stabbing of the victim. They also involve relationships where the defendant, the accused person, had suffered domestic violence at the hands of the deceased. They all involve excessive consumption of alcohol and often the use of unlawful drugs, by the victim and, not unusually, by the defendant as well. They all involve events where the death of the victim follows the victim having assaulted the defendant. Starting point sentences of between four years and four years’ and nine months’ imprisonment have been identified in most of those cases.
[23] There are other cases of manslaughter where lower starting point sentences
have been identified: these most typically involve what is known as a “one punch”
manslaughter. That is when someone punches another person and it is not the punch
1 R v Stone (HC Wellington CRI-2005-078-1802, 9 December 2005); R v Mahari (HC Rotorua
CRI 2006-070-8179, 14 November 2007); R v Tamati (HC Tauranga CRI-2009-087-1868, 27
October 2009); R v Woods (HC Gisborne CRI-2011-016-48, 10 June 2011); Wharerau [2014] NZHC 1842; R v Whiu [2007] NZCA 591; R v Paton [2009] NZCA 155; EM v R [2015[ NZCA
202; Rakete [2013] NZHC 1230; and R v Suluape (2002) 19 CRNZ 492.
which causes death, but the injuries suffered when the person falls to the ground and strikes their head. Very recently, a starting point of two years was recognised as being appropriate in such a case. What a two year sentence in that circumstance recognises is that, although someone has died, that was an accident.
[24] Two of the stabbing cases, Stone and Tamati, are of particular relevance. In both cases the defendant stabbed the victim once in the leg, severing a major artery or vein. The victim then quickly bled to death. In both cases, as reflected in the charge of manslaughter, it was accepted that the defendant had not intended to kill or cause bodily harm likely to cause death. Rather, and although not constituting self- defence, the defendant’s actions had been a reaction, in the context of a volatile and violent relationship, to ongoing domestic violence.
[25] In Stone, where the defendant showed deliberateness in obtaining the knife and stabbing the deceased, a starting point of four and a half years’ imprisonment was adopted, as it was in similar circumstances in another case called Mahari.2
[26] In Tamati, the offending occurred in the context of a physically violent
17 year relationship. During the course of the incident in question, the defendant had tried to call the police, but had been prevented from doing so by her partner, the victim. After the victim had gone into a bedroom and shut the door, the defendant forced her way in, holding a knife she had deliberately got from the kitchen for that purpose, intending to scare the victim into leaving the house. There was a brief fight, ending with the defendant stabbing the victim once behind the left knee, again resulting in a severed artery. In that case, a starting point of four years’ imprisonment was adopted.
[27] In both Stone and Tamati, the Court considered that the consequence of the stabbing, the severing of a very narrow artery or vein, was highly unlikely. Both the Crown and the defence recognise the importance of that factor here. Both also accept that you did not act with intent to cause serious harm. Those are very important considerations when considering your responsibility: that is, you did not
intend serious harm, and that the serious harm that did result was highly unlikely.
2 R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007.
[28] The Crown submits that a starting point of four to four and a half years’
would be appropriate.
[29] Ms Ord submits that one of three to three and a half years is called for.
[30] In my view, your offending is closest in terms of culpability to that of the defendant in Tamati. I accept, however, that – on the basis of the statement of facts – I cannot infer that you deliberately obtained the knife in anticipation of violence, as was the case in Tamati. That makes your offending less serious than that. At the same time, you inflicted two, albeit very minor, wounds on Mr Tagatauli earlier and at which point you were in possession of two knives. In my view, therefore, the appropriate starting point for this offending is a sentence of imprisonment of three years and nine months.
[31] I now turn to matters personal to you.
[32] First, I accept that there are no aggravating personal circumstances. Whilst you have been convicted of a number of offences in the past, they are minor and of no relevance here.
[33] In terms of mitigating factors I first consider the significance of the fact that you have been diagnosed as suffering, at the time of these events, from post-traumatic stress disorder.
[34] I must also consider your personal history. Where there is evidence which supports the view that prolonged abuse has occurred, and has materially contributed to offending, a discount on account of that factor will be available – that is, a reduction in the sentence.
[35] Here a psychiatric report prepared at the request of the defence in March this year, when the possibility of a charge of manslaughter and a guilty plea to that charge was anticipated, confirmed that – before you met Mr Tagatauli – you had a longstanding history of low mood and anxiety, and cumulative traumatic stress. Those conditions had developed in the context of unresolved childhood physical,
emotional and other traumas. Those conditions were then reinforced by the two significant relationships you had had, the second of which was with Mr Tagatauli, and both of which were characterised by the psychiatrist as abusive. The psychiatrist described your relationship with Mr Tagatauli as being marked by jealousy and possessiveness and the traumatic experience of coercive control, sexual abuse and repetitive escalating physical violence. Already vulnerable to depression and a harmful pattern of drinking, your mental health was assessed as having deteriorated further. You reported attempting suicide and committing self-harm. You found yourself continuously on the edge, hyper-vigilant and feeling constantly threatened as assessed by the psychiatrist. The psychiatrist characterised those symptoms and behaviour as complex post-traumatic stress disorder. The psychiatrist also accepted the occurrence of a dissociative episode, that is, as I understand it, one in which the person involved temporarily is removed from their normal state of mind, at the time this stabbing event occurred. That report makes clear, as the Crown accepts, that your impaired mental and emotional health at the time of your offending materially contributed to that offending.
[36] The report I have received from the Department of Corrections, albeit not prepared by a professional psychiatrist, confirms those assessments.
[37] In these circumstances I consider that, as both the Crown and defence agree, a 25 per cent discount is what should appropriately be allowed. On that basis, and before considering other personal mitigating factors, I set a provisional sentence of two years and 10 months’ imprisonment.
[38] There is a further personal mitigating factor: that is the remorse which you have both expressed and practically demonstrated. I have read the letter you provided to me. Often such letters are little more than a response by an offender to their own position. Here, however, I accept that your remorse is genuine, that it is strongly felt and that it is a true acknowledgement of the impact of your behaviour which caused the tragedy that Mr Tagatauli’s death is for his family. The probation officer’s report provides unusually strong confirmation of the remorse that you feel. I also note in this context that when these events occurred you did not know you were pregnant with your and Mr Tagatauli’s second child. That baby has now been
born, and you are caring for both daughters. You are doing so successfully and lovingly as confirmed by the letters of support I have received. That consideration has also added to my conviction of the genuineness of your remorse.
[39] In these very unusual circumstances, I allow a reduction of four months on account of that remorse.
[40] Therefore, and before considering the significance of your guilty plea, I set a provisional sentence of two and a half years’ imprisonment, that is 30 months’ imprisonment.
[41] The Crown accepts, and I agree, that a full discount of 25 per cent is available for that plea. On that basis, I set an end sentence of 22 months’ imprisonment.
[42] That means home detention is available for consideration. Both the Crown and the defence agree that, if available, home detention is the appropriate outcome.
[43] Despite the loss of a person’s life, it is not the case that all manslaughter sentences require imprisonment. In many cases, indeed in most cases, that is the appropriate sentence. But in others it is not. I note, immediately, that I have not found any case of a manslaughter by a stabbing where home detention has been considered appropriate. In one case it was available but a sentence of imprisonment was nevertheless imposed.
[44] Notwithstanding that, I have decided that the circumstances of your offending and your personal circumstances are such that home detention is the appropriate sentence. You are not, in my view, someone for whom prison is necessary as a deterrent. Your conviction for manslaughter, the sentence of home detention, and your own recognition that you must live with the consequences of your actions for the rest of your life are for you, in my assessment, sufficient in terms of accountability, promoting responsibility, denouncing your offending, and providing for the deterrence of others. Moreover, home detention will enable you to continue to care for your two young daughters, the daughters of Mr Tagatauli, and your three
older children. And I say that those are factors which have called into play the compassion of the Court.
[45] A home detention annex has been prepared as regards your current address. That address is considered to be suitable.
[46] The usual conditions will apply. They will be explained to you by the Court officers in attendance on you. In essence they mean that during your home detention of 12 months you must follow and comply with all conditions imposed on your by the probation officer.
[47] Ms Tagatauli, for the offence of the manslaughter of Mura Tagatauli, I
sentence you to 12 months’ home detention.
[48] Ms Tagatauli, you may stand down.
Solicitors:
Luke Cunningham and Clere, Crown Solicitors, Wellington
Ord Legal, Wellington for Defendant
“Clifford J”
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