R v Tamihana

[2020] NZHC 1365

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-012-001212

[2020] NZHC 1365

THE QUEEN

v

BLAIR WIREMU TAMIHANA

Hearing:

15 June 2020

Appearances:

R D Smith for Crown

M A Stevens QC for Defendant

Judgment:

15 June 2020

[REDACTED] SENTENCING REMARKS OF OSBORNE J

This judgment was delivered by me on 15 June 2020

Registrar/Deputy Registrar Date:

R v TAMIHANA [2020] NZHC 1365 [15 June 2020]

Introduction

[1]    Mr Tamihana please stand. You have pleaded guilty to a charge of attempted murder.

[2]    I am going to invite you to sit again shortly because I need to run through the background to your offending, the facts which you have heard counsel talk about and importantly the reasons for the sentence I will impose on you. That will take some time.

[3]Please be seated.

[4]    To consider the sentence I should impose on you, I will deal with a number of topics:

(a)First, I will refer to the facts. They will include my consideration of the victim’s impact statement which she has provided.

(b)I will turn to examine the period of imprisonment which I should impose on you if I sentence you to imprisonment. That requires me to consider, as you have heard counsel do:

(i)first, a starting point, that is a number of years of imprisonment reflecting the seriousness of your crime;

(ii)secondly, to consider personal factors about you which may make your offending worse;

(iii)thirdly, to consider the circumstances personal to you that reduce your level of responsibility for the crime; and

(iv)fourthly, to bring into account your guilty plea.

(c)In covering those matters, I must also consider Mrs Stevens QC’s submission that a sentence of supervision may be appropriate.

[5]But at this point I am going to summarise the facts.

Facts of your crime

[6]    You, Mr Tamihana, had been in a relationship with the victim, [redacted], for approximately 11 months. On 5 March 2019, you had appeared in the District Court charged with impeding her breathing. You were granted bail. As a condition of your bail, you were ordered not to contact the victim.

[7]    But you had contact which resulted in terrifying consequences for her on 30 May 2019. After your contact with her, she went to the Central Police Station, she endeavoured to withdraw her original complaint that had led to your being charged and remanded on bail.

[8]    That evening, you drove the victim back to your address, which was a caravan at a camping ground. During the drive, you began arguing. The argument continued when you arrived at the caravan around 6 pm. You became aggressive and, using both hands, you pushed her hard in the chest, causing her to fall onto the bed. The victim said she wanted to go home. You told her she was not going anywhere and that you were going to die together.

[9]    You took out one of your hunting knives and you went to stab yourself in the stomach. But you stopped and threw the knife down. You got your medication, amitriptyline, which is a strong pain killer, you made the victim take one tablet. You took nine. You took her cell phone. You removed its battery and its sim card.

[10]   You then proceeded to turn the gas stove on. You tried to tape the controls into the “on” position with electrical tape, but the tape would not hold. You became frustrated. You told the victim it was her fault. You then said, and I quote, “it is a 9 kg gas bottle and it will take a long time to die”. You then removed the knobs from the stove switches. You wedged a shower gel bottle between the wall and the switches to hold them on. You proceeded to close all vents in the caravan. You went out and put your vehicle (which the victim refers to as your truck) against the caravan door. You then climbed back into the caravan through the bathroom window.

[11]   The victim told you at that point that she did not want to die, but you kept saying “we are going to die together”. The victim believed you might stab her if she attempted to leave. She knew you had taken a number of tablets, so she waited for you to pass out as Mrs Stevens said. Eventually you collapsed on the bed. The victim went to leave the caravan but you grabbed her by the leg. You stopped her from escaping. She waited a short time until you appeared to be unconscious, and she then managed to escape by the window.

[12]   She raised the alarm with the camp manager, who managed to remove the vehicle blocking the door, turn off the gas and ventilate the caravan. Both you and the victim were taken to Dunedin Hospital, treated for breathing difficulties and discharged the following day.

[13]   I remind you, Mr Tamihana, bringing this all together, that what you did and what you have pleaded guilty to doing, is that you attempted to murder a vulnerable woman with whom you had been in a relationship.

Purposes and principles of sentencing

[14]   In sentencing you, Mr Tamihana, the Court must bear in mind the purposes and principles of the Sentencing Act 2002.1 I must consider the need to hold you accountable and responsible for the harm you have done to the victim and the community, and to denounce your conduct. Your crime must be met with a sentence that deters both you and other people who find themselves in a situation like yours from doing what you did. My sentence must protect the victim and the community. It must also focus on your rehabilitation.

Victim impact statement

[15]   The victim’s impact from your offending has changed over the year since it occurred. There has been a resumption of communication between the two of you. Her impact statement is therefore in two parts. First, a statement that she made soon after the offending, and secondly the comment she added last month.

1      Sections 7 and 8.

[16]   In the original statement, the victim spoke eloquently of the suffering she had experienced when you tried to murder her. As she has, understandably, felt unable to attend Court today, fearing that she will be traumatised again, I am going to read most of her statement she has provided.

On the 30th May of 2019 Blair tried to kill me. At the time I honestly thought he would succeed and that I was going to die in that caravan with him, however, I managed to escape and get help.

My whole life has changed since that night. My PTSD and anxiety has worsened considerably and as a result my doctor has had to increase my medication. I am anxious being out and about around people and find myself constantly looking over my shoulder in case Blair is there, which is silly because I know he is in prison …

To know that someone who I loved could try and take my life away has made me very untrusting and I have no doubt it is going to affect any future relationships I may have.

…

The worst part about what Blair did that night was the premeditation of moving the truck up against the door so I couldn’t escape. That shows how committed he was to ending both our lives …

And she continues to say she is concerned about what will happen after your release.

[17]   In her subsequent addition to that statement last month, she stated that she had been through a lot since the incident and had decided that she really did love you. She regretted not going through restorative justice with you, and after getting in touch with you and hearing you apologise, she felt able to forgive you. She stated that she was willing to give you “one more chance at the relationship” if you gave up drugs and if you attended an anger management course.

[18]   I observe at this point that [redacted] has shown herself, in this additional statement, not only to be a person of remarkable resilience, but also of remarkable forgiveness. That said, her additional statement reveals to me a continuing vulnerability in the event that you were once again to decide to take out your anger, frustration or other emotions on her. The continuing severe impact of your behaviour towards your victim has been emphasised in the last week by her decision having committed to restorative justice to then have to pull out of the process again. She explained as we have heard through the Victim Advisor that she had found it traumatic

to re-read her victim impact statement again and traumatic to consider coming to Court today.

Pre-sentence report

[19]   I am going to talk about your pre-sentence report. It outlines the difficulties you had with depression and your anxiety leading up to the time of the criminal offending. Your ex-wife had ended your long relationship with her because of your mental health issues which were also affecting the two children. A protection order was placed on you that meant you could no longer see your children.

[20]   The Probation Officer spoke to you about this offending, what you did to the victim. You advised and I quote, “my understanding was we were doing it together, we talked about it”. You said that you did not remember the victim saying she wanted to leave the caravan and you would have let her go if she had done so. You told the report writer that you were upset and sorry, yet the writer noted that it was apparent that you felt the victim had wronged you. You said you should have seen the warning signs when the victim made the previous allegation against you which you stated was “also” false. I use the word “also” deliberately as used by the report writer – by that statement you were at least hinting that the allegations against you were false. You added that you had been having some “trust issues” with the victim. You told the report writer that you pleaded guilty because you had received legal advice and were tired and wanted it to be done with.

[21]   Your sister, when interviewed, said that you had been the victim of your father’s violent behaviour. She said that you had been discharged from the army after your career in that service and that that had had a negative impact on you. She said that members of your whanau had tried to support you, but you had not accepted their help. She said she is worried about you. She hopes you can become again the good person you once were, and your mother in her note given to me this morning echoes everything there.

Psychiatric report

[22]   I have been provided with Dr Hansby’s psychiatric assessment of you. He reports that your mental health began to deteriorate following your separation from your wife in 2018. In May 2018 you attempted to commit suicide, you were hospitalised. It was in hospital that you met and formed a relationship with the victim. You advised Dr Hansby that you had made other suicide attempts during your relationship with the victim and Dr Hansby has confirmed that from your medical records.

[23]   It is his opinion, as we have heard, that you experience an episodic major depressive disorder, you have suffered from polysubstance abuse and you are likely to have dysfunctional personality traits. While you presented as having depressive features, Dr Hansby does not believe you were experiencing a major depressive illness at the time of the offending. Rather, he believes you were influenced by substance misuse and your dysfunctionality in your personality traits. I would add to Dr Hansby’s observations that it is clear from your discussion with the Probation Officer that your conduct towards the victim in the caravan was fuelled by a sense of grievance, if not outright anger, at some unclear aspect of the victim’s behaviour. I do not say malice, but I say grievance.

[24]   In relation to sentence, Dr Hansby recommends that you engage in a formal alcohol and drug programme and that you have longer-term therapy. He suggests that you would benefit from mental health services in prison and from stable housing and employment once back in the community.

Starting point

[25]   I turn to the starting point.  The maximum penalty for attempted murder is   14 years’ imprisonment.2 There is no guideline sentencing decision. That is because of the wide range of circumstances in which people attempt to commit murder.

2      Crimes Act 1961, s 173.

Crown submissions

[26]   You have heard Mr Smith for the Crown submit that there are these five aggravating features:

(a)first, actual violence and detention;

(b)secondly the vulnerability of the victim, a smaller female who was alone with you in a relatively isolated situation;

(c)thirdly premeditation – as you have heard the Crown accepts this was not present in a large degree – but a degree of premeditation in the steps you took, particularly to prevent the victim’s escape from the door, and also in the steps you took in relation to the gas supply;

(d)fourthly Mr Bates3 notes the impact upon the victim which has been emphasised through her statement; and

(e)fifthly he emphasised, as you heard, the breach of bail. A serious aspect of aggravation.

[27]   Mr Smith referred to R v Miller.4 The defendant there undertook a planned kidnapping of his former partner and attempted to murder her by way of carbon monoxide poisoning. Heath J identified a range of aggravating features, particular cruelty involved in the offending, a high degree of planning and premeditation with a starting point of 13 years’ imprisonment.

[28]   Mr Smith accepts the offending in Miller involved a much higher degree of planning and premeditation as well as invading the victim’s privacy. Taking all those matters into account you heard him submit that an appropriate starting point would be 10 years’ imprisonment.

3      Sic – should have been a reference to Mr Smith.

4      R v Miller HC Tauranga CRI-2008-087-483, 24 April 2008.

Defence submissions

[29]   Mrs Stevens on your behalf, noted (although we passed over it this morning) scientific evidence indicated that there was not an actual risk of death for the victim in what you did. I have the biochemist statement of Mr Napier in front of me. He stated that there would have been a lowered oxygen concentration, a range which would have affected breathing and heart rate, which is what we heard in fact happened to both of you.

[30]   Mrs Stevens responsibly accepted that there was a degree of premeditation present. She emphasises that you believed that you and the victim had agreed to die together. She also accepts that the victim was to some degree vulnerable. She submits, however, that you were not motivated by malice, which I accept, and that there was no actual violence involved. I find there was some violence involved in the pushing. Mrs Stevens submits that in other cases of attempted murder where there is mental disturbance and no malice, the Court has seen fit to impose supervision. She noted that intensive supervision was imposed in two cases where the defendants were the mothers of their victims.5 She also referred to R v Law, where the defendant was sentenced to 18 months’ imprisonment for murdering his wife after an arrangement in relation to Alzheimer’s disease.6

[31]   Mrs Stevens therefore submitted as you heard that the starting point might be two years, but again responsibly recognised that this Court may have to impose something greater than that.

Discussion

[32]   In my view, the Crown correctly identified the aggravating features of your offending.

[33]   In addition to the cases you have heard referred to by counsel, I have referred to two cases in the course of thinking about today:

5      R v X [2016] NZHC 840; R v M HC Dunedin CRI-2007-012-211, 11 December 2007.

6      R v Law (2002) 19 CRNZ 500 (HC).

(a)First in R v Wilson, the defendant was convicted of attempted murder.7 He tied up his wife inside a car and attempted to gas both her and himself. The sentencing Court found there was considerable preparation involved. The victim survived only through a chance intervention of passers-by. The Court of Appeal did not disturb an end sentence of 10 years’ imprisonment.

(b)Police v Kendall also involved was an attempted murder/suicide.8 In that case the defendant and victim had argued. The defendant punched the victim in the head and banged her head against the floor. He locked all the doors and windows in their house and lit a fire inside. The fire went out and the victim attempted to escape through a window. The defendant stabbed her in the neck and shoulder three times. He went to light the fire again, then decided to cut his wrists instead. He eventually came to his senses and went to the police. The Court adopted a starting point of seven years’ imprisonment.

[34]   Reflecting back on some of those cases, Miller and Wilson are somewhat similar factually because of the use of carbon monoxide poisoning.9 But they both involved more serious offending than what you did. The defendants in those cases undertook considerable planning, including both getting relevant equipment and driving the victims to remote locations. There was restraint involved in both cases. In the present case, you did not involve yourself in such premeditation or planning. That said, you did put a bit of careful thought into putting the truck up against the door with all the impact that that must have had on the victim. That said your level of restraint was not as sophisticated as in the other cases.

[35]   I view Kendall as a case involving much more serious offending than in your case.10 The defendant caused serious lasting physical harm to the victim; she was lucky to survive. Here, although you clearly intended to kill the victim, and she was understandably terrified that you were going to succeed, I must sentence you on the

7      R v Wilson CA53/87, 6 November 1987.

8      Police v Kendall [2012] NZHC 2908.

9      R v Miller, above n 4; and R v Wilson, above n 7.

10     Police v Kendall, above n 8.

basis  that  death  was  not  going  to  be factually possible.    That is relevant to the seriousness of the offending.11

[36]   The cases cited by Mrs Stevens on the other hand in my view involved significantly less serious offending than in your case. In R v X and R v M, the defendants did attempt to gas themselves and their children whilst suffering depressive illnesses.12 They held no grievance towards their victims and, as Mr Smith noted, particularly in R v X the aspect of infanticide which carries a much lower sentence than related offences inevitably affected the outcome in that case. The sentencing Judges considered merciful sentences necessary to take into account the particular situations of parents of children.13

[37]   You were clearly suffering a measure of poor mental health at the time of your offending. I take that into account. Dr Hansby has excluded any major depressive episode but his report recognises both your emotional vulnerability and your record of your suicidal behaviour. But none of those matters of personal mitigation could justify a sentence of intensive supervision which Mrs Stevens identified as a possibility. The nature of your offending demands a period of imprisonment.

[38]   I do not consider the outcome in R v Law to be of assistance.14 Whatever belief you may have held when you got to your caravan, your actions at the caravan indicate clearly that from the time of entry into the caravan, you knew you had to prevent the victim’s escape if you were going to carry out your plan. The fact that you are still to some considerable degree in denial of your responsibility for what you did in the caravan – the fact that you in some way attempt to attribute a degree of responsibility to the victim rather than today outright accept your responsibility – puts your case well outside those involving a willing murder/suicide pact for which the perpetrator pleads guilty. Your crime involved subjecting the victim to conduct which was in the caravan entirely unwanted by her and must have been, as she has related, utterly terrifying and a cause of what will be long-lasting trauma.

11     R v Austin (1905) 24 NZLR 983 (CA).

12     R v X, above n 5; and R v M, above n 5.

13     R v X, above n 5, at [23].

14     R v Law, above n 6.

[39]   Taking into account the seriousness of the offending and the starting points which I have discussed, I find a starting point of six years and six months’ imprisonment to be appropriate.

Personal circumstances

[40]   I now consider your personal circumstances. These are the circumstances not directly relating to the offence itself.

Criminal history

[41]   You have a limited criminal history which I consider irrelevant. The Crown accepts that an uplift of the starting point is not justified on that basis.

Mental health

[42]   Mrs Stevens submits that I should allow a discount of 20 per cent from the starting point in recognition of your mental health. You heard Mr Smith submit that a credit in the range of 10 – 20 per cent would be appropriate, although you heard him today say that it could be at the very upper end of that, if not beyond it.

[43]   I accept that there is a strong link between your mental illness and your offending. Your poor mental health and your history of suicide attempts in the recent period before the offending are strong mitigating factors. In E v R, the Court of Appeal considered a number of cases where discounts had been allowed for mental illness.15 Having regard to those decisions, I find that a discount of one year (approximately 15 per cent) is appropriate. That would bring the starting point down to five years and six months. I do not allow a greater discount because I consider other matters which I am coming to which call for discount would involve double dipping if I went to a higher figure for your mental health.

15 E v R [2011] NZCA 13, (2011) 25 CRNZ 411, referring to R v Gordon CA276/04, 16 December 2004; R v Bridger [2003] 1 NZLR 636 (CA); R v L [1998] 2 NZLR 141 (CA); and R v Pene [2010] NZCA 387.

Cultural background and restorative justice

[44]   As you know I had a s 27 report, what is called a cultural report, from Jamie- Lee Tuuta. She records that you have whakapapa links to te Arawa through your father, while your mother is of Pakeha descent. She reports that you experienced and witnessed a lot of violence in your very early life, predominantly at the hands of your father. You have disclosed also to Ms Tuuta that on one occasion much later in your adolescence you were sexually abused.

[45]   You have limited knowledge about your whakapapa links or culture. Ms Tuuta considers that your disconnection from your whakapapa and your family have been significantly affecting your overall wellbeing. She considers that your disconnection, along with systemic Māori deprivation, has “strong relevance” to your offending. She considers that you would benefit from reconnecting with your hapu and iwi and engaging with kaupapa Māori services.

[46]   You have heard counsel refer to what Whata J had to say in Solicitor-General v Heta about systemic Māori deprivation.16 In that case his Honour found a discount of 30 per cent appropriate in the particular circumstances of that case, and he allowed a further 10 per cent discount for a high measure of outcome through restorative justice.17

[47]   Applying Heta to your case in a manner most favourable, I find that a 15 per cent discount is appropriate. That figure does include a degree of recognition of systemic deprivation, but particularly difficulties in your upbringing and in your adolescence, carrying through to later life. I take into account your willingness to participate in restorative justice. The 15 per cent will bring the sentence down to four years and eight months’ imprisonment.

[48]   In the circumstances though of your explanations of your behaviour both to Dr Hansby and Ms Tuuta, I do not consider that there can be a significant element within

16     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [34]–[50].

17 At [65].

that 15 per cent that I have assessed for remorse on your part, especially when I am going to provide a significant discount for your plea of guilty.

Guilty plea

[49]   Turning to your guilty plea Mr Bates18 observes that you pleaded guilty at the pre-trial call-over, after the Crown had agreed not to pursue additional charges. He submitted that the case against you was overwhelming. Given that you received the benefit of the Crown’s decision not to pursue the other charges, the Crown submitted that a guilty plea discount of 15 per cent would be appropriate. Mrs Stevens, as you heard, initially submitted a discount of 25 per cent would be appropriate but accepted that I may have to grant something less than that.

[50]   In your circumstances Mr Tamihana I consider a discount of 20 per cent would be appropriate for your guilty plea. That is close to a one year discount which is what I will allow, which results in an end sentence of three years and eight months’ imprisonment.

Minimum period of imprisonment

[51]   The Court may impose a minimum period of imprisonment, what we call an MPI, in relation to a determinate sentence of imprisonment when it is more than two years. I can do that if I am satisfied that parole at the ordinary release date would be insufficient to meet the sentencing purposes of accountability, of deterrence, of denunciation or of protection of the community.19 The Crown submits that yours is a case that should attract an MPI. It seeks an MPI of approximately 50 per cent of the overall sentence.

[52]   Given the overall sentence of three years and eight months’ imprisonment, you would ordinarily become eligible for parole after serving a little over one year and two months. I view that as not long enough for the purposes of denunciation and

18     Sic – should have been a reference to Mr Smith.

19     Sentencing Act 2002, s 86.

deterrence having regard to the seriousness of the offending and the need to protect the victim and the community.

[53]   I will impose an MPI of 22 months, being half the overall sentence. Such a sentence and an MPI will provide an opportunity for you, limited I accept in prison, but nevertheless an opportunity for you to address the issues which you have stated you recognise you have. You have explained to the victim that your attempt to murder her was influenced by drugs. Her initial preparedness to resume contact with you was on the basis that you dealt with both those drug problems and your anger. Your successful rehabilitation will ultimately depend on your taking advantage of every opportunity you are given through every service provider, normal community service providers, but also kaupapa Māori service providers. Your ability to live peacefully back in society depends on the work that you will undertake.

[54]   In the normal course I would have been addressing you on a protection order but I have dealt with that at the start of the sentencing.

[55]   I want to say one further thing to you Mr Tamihana about your own statement, which Mrs Stevens has not dwelt on this morning but I have left it to the end to refer to it because it has been provided to me. You refer to your sincere remorse and I accept that you wish to say you are remorseful and that you wish to say it sincerely. You refer though to accepting full responsibility, taking responsibility, but you then qualify that by saying “for my part in the case”. This was a crime of attempted murder. You say that the event, meaning that your attempt to murder the victim, should never have happened and that this could have been dealt with differently, but it was not, and that that was because of the mental state of the two of you. But it was you Mr Tamihana who sought to murder the other person, not the other way round.

[56]   I say this to you plainly because it is essential that you understand what this process has been about today. It is about taking full responsibility which will be an important part of your life as you move forward. You, and you alone, are responsible for what you did in the caravan, leaving aside what may have led up to being in the caravan.

[57]Mr Tamihana, please stand.

Sentence

[58]   I sentence you on the charge of attempted murder to a period of three years and eight months’ imprisonment. I impose a minimum period of imprisonment of one year and ten months.

Strikes warning

[59]   In addition, given your conviction for attempted murder, you are now subject to the three strikes law. I have to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice which counsel will provide to you which contains a list of these ‘serious violent offences’.

(a)If you are convicted of any one or more serious violent offences other than murder committed after this warning and a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[60]I appreciate the way you have listened to me Mr Tamihana. Please stand down.

Osborne J

ADDENDUM

Having heard from counsel before commencing the sentencing, I make a protection order against Blair Wiremu Tamihana in favour of [redacted] pursuant to s 123B(2) of the Sentencing Act 2002.

Solicitors:

RPB Law, Dunedin

M A Stevens QC, Dunedin