R v Tauariki HC Auckland CRI-2010-092-011776

[2011] NZHC 2076

NOTE: FIRST WARNING UNDER S 86A OF THE SENTENCING ACT GIVEN PRIOR TO SENTENCING.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-011776

THE QUEEN

v

WAIMIRIRANGI RIHIPETE TAUARIKI

Hearing:         29 November 2011

Counsel:         K Raftery and J A Kincade for the Crown

M J Dyhrberg and K Brosnahan for the Prisoner

Judgment:      29 November 2011

SENTENCE OF POTTER J

R V TAUARIKI HC AK CRI-2010-092-011776 29 November 2011

Introduction

[1]      Waimirirangi Tauariki.  You were found guilty following trial by jury on 28

October 2011 of murdering Preva Shortland, and you must now be sentenced.

[2]      I want to start by acknowledging the presence in Court today of members of Preva Shortland’s family and also members of your family, Ms Tauariki.  The death of Preva Shortland is a tragedy.   A tragedy which has far reaching and ongoing effects for her family, particularly her three young children, and their father, Mr Leavea.   At the age of only 29 years Preva Shortland has been taken from them suddenly, brutally and tragically.  Her family and her friends have lost a much loved mother, partner, daughter, friend, relative and companion.   Nothing I can say, or anyone else can say or do, can change that.  I can only express the Court’s sympathy to Preva Shortland’s family and friends and I do so now.

[3]      Your family, Ms Tauariki, are very much part of this tragedy also.  You have committed the most serious crime in our law, murder.  It is inevitable therefore that you must be sentenced to a lengthy term of imprisonment.  You will be removed for many years from the lives of those who have relied upon you, trusted you and loved you and have benefited from your love and care of them.  They remain true in their love and support for you but your actions mean they will be left for many years, largely to get on with their lives as best they can without you.  That too is a tragedy. Although you are not taken from them forever, as Ms Shortland has been from her family and friends, your family and close friends are victims in a very real way of your offending also.  I express my sympathy to them.

Background facts

[4]      As I have said, Preva Shortland was a 29 year old mother of three young children.

[5]      On 10 July 2010, a birthday celebration was held for Steven Maihi at his home address of 73 Glenveagh Park Drive, Manurewa.  The deceased attended with her partner, Pepa Leavea, who is Steven Maihi’s cousin.   Ms Tauariki, a niece of

Maia Maihi (who is Steven Maihi’s wife), was also present.  It was known to family members that Pepa Leavea and Ms Tauariki had had an affair in 2007 or 2008.  Since the affair there had been conflict between Ms Tauariki and the deceased.

[6]      At the party alcohol was consumed.  During the evening a verbal argument developed between Ms Tauariki and the deceased, which escalated into a physical fight  involving  punching  and  them  pulling  each  other’s  hair.    Mr  Leavea  also punched Ms Tauariki during this altercation.   They were separated.   Ms Tauariki went into the house.   She was seen sitting on a bed in the dark.   Shortly after midnight, Ms Tauariki walked outside the house.  She said to the deceased: “Yep I fucked him you fucking bitch”.   The pair began fighting again.   They fell to the ground and continued fighting for a short period.   During the fight Ms Tauariki stabbed the deceased twice with a knife, a 32 cm long kitchen knife  with a 20 cm blade.  She stabbed her once in the shoulder and again into the chest, into the heart of the deceased.

[7]      Ms Tauariki removed the knife and concealed it.  The deceased stood up but soon collapsed to the ground.  She was unable to be revived by others at the address, or by police or ambulance staff.   Immediately after the fight Ms Tauariki walked through the house to the rear, discarded the white jacket she was wearing and made her way into neighbouring properties.   She hid the knife in the garden next to a wooden gate in a neighbouring property and walked back along the road towards the property at 73 Glenveagh Drive.  She hid by a boundary fence opposite the property but was spotted by police. When questioned by police she admitted being in a fight.

[8]      A critical factual dispute at trial was how Ms Tauariki came to be possessed of the knife with which she stabbed Preva Shortland.   Her evidence was that she retrieved it from the garden during the second fight with Preva Shortland.  She said Preva Shortland reached out to retrieve something from the garden.   She did not know what, but she reached in the same direction and retrieved the item she thought Preva Shortland was reaching for, which turned out to be the knife.

[9]      The Crown’s case was that after the first fight Ms Tauariki went into the

house, spoke to her uncle, Sofele Huihui and asked for help.  He declined.  She then

went into a bedroom in the house where she was seen sitting on the bed by Melody Maihi who described her in evidence as looking “frustrated” and “shocked”.   The Crown’s case was that she then went to the kitchen, selected the largest knife from the knife box on the kitchen bench (which as I have described it was a 32 cm knife with a 20 cm blade), concealed it, and went outside.   She then called out in a provocative way to Ms Shortland, the words to which I have already referred.

[10]     It was not necessary for the jury to have rejected Ms Tauariki’s version of events concerning the knife in order to convict her of murder.   However, determination of this factual issue is necessary to assess the level of premeditation involved in the killing. As the trial Judge I am entitled to make a finding on the facts which is not inconsistent with the verdict of the jury.

[11]     I reject the evidence of Ms Tauariki as to how she came to be in possession of the knife.  Her account was implausible and I consider conveniently constructed to provide an apparently innocent explanation as to how she came to be in possession of the knife.  There was no dispute that the knife which killed Preva Shortland came from the knife box on the kitchen bench.   It was part of a set of knives recently purchased by Mrs Maihi because knives were needed to prepare the food for the party.  Ms Tauariki’s footprints were found near the bench area on the kitchen floor. I accept the submission for the defence that the evidence of Ms Tauariki’s footprints on the kitchen floor is also consistent with her being in the kitchen earlier in the night when she offered drinks from a bottle of alcohol she took to the party to others present.   But, I consider relevant and important the evidence of Melody Maihi of sighting  Ms  Tauariki  in  the  bedroom  between  the  two  fights,  the  fact  that  Ms Tauariki did not witness a fight in the lounge between Pepa Leavea and Steven Maihi about which Melody Maihi gave evidence – she said this fight occurred between the two fights between Ms Tauariki and Preva Shortland (two other witnesses gave evidence of this fight without being able to time it) – and there is no dispute that Ms Tauariki  shortly  afterwards  came  out  of  the  house  angry,  and  shouting  the provocative words to Preva Shortland.

[12]     I note other relevant factors in the mix; that no-one at the party gave evidence of seeing a knife in or near the garden during the course of the long evening of

partying although there were many people around the garden area in the course of the evening.  I also note the sheer implausibility of Preva Shortland - who, according to the evidence of Melody Maihi, was by the passenger’s door of the car with the door open with Pepa Leavea by the driver’s door in apparent readiness for departure at the time Ms Tauariki yelled out the provocative words - the sheer implausibility of her then becoming involved in the second fight with Ms Tauariki, and then reaching for an item in the garden, namely the knife, which she knew was there.

[13]     I  find  proven  that  Ms  Tauariki  deliberately  acquired  the  knife  from  the kitchen and took it with her when she again left the house and angrily called out to Preva Shortland.  However, although it appears the knife she took was the largest in the knife box, I do not draw as a necessary inference that she selected the largest knife from the box, as was the Crown’s submission.

Victim impact statements

[14]     I have read the victim impact statements and Mr Raftery has read from those statements in Court this morning.  Mr Leavea says that when Preva died he “lost his world”.  Mr Albert Shortland, Preva’s father describes her as his “queen”, the oldest of his ten children.  Sina Tukuafu, Pepa’s sister, who has taken responsibility for the care of Preva Shortland’s three children along with Pepa Leavea, speaks of the difficulty and hurt for these children and also the difficulties for her own family. These three people write of the huge impact on their lives and their families from the death of Preva Shortland.  Understandably, they have great difficulty in coming to terms with her death and with the loss they have suffered.  As Sina Tukuafu states, it has “impacted our lives so much that I can’t fully put it into words”.

[15]     Mr Steven Maihi at whose home the killing took place speaks of the trauma he and his family have experienced, that they had to move to another home, the confusion, the isolation from whanau on both sides of the family.  Finally, to their credit, he says they are working together day by day, to regain their happiness individually and as a family.

Pre-sentence report

[16]     A pre-sentence report has been prepared for Ms Tauariki.  She is 34 years of age.  As I have mentioned, she has five children who prior to her arrest were in her sole care.  She has been studying towards a bachelor degree in Iwi Environmental Management and had successfully completed her first year despite having only brief secondary school education.   Ms Tauariki has no previous convictions for violent offending.   She has five comparatively minor previous convictions, none of them anywhere near as serious as the conviction for murder for which she must now be sentenced.  I do not treat those prior convictions as relevant for sentencing.

[17]     Ms Tauariki continues to maintain that she acted in self-defence when she killed Preva Shortland.  She is prepared to admit that she provoked the deceased and she admitted at trial that she had delivered the fatal stab wound with the knife, but she still does not take responsibility for the killing.   However, Ms Dyhrberg has handed to me this morning a letter signed by the prisoner in which she expresses how sorry she is and acknowledges responsibility for the death of Preva Shortland and for the enormous and far reaching consequences of her act in killing Preva Shortland.

[18]     Her expressions of remorse to the probation officer who prepared the pre- sentence report, were limited and qualified.  When speaking to the probation officer the devastation she said she felt was rather at the prospect of the lengthy term of imprisonment which she must serve away from her family.   However, I note the remorse,  or  at  least  the  acknowledgment  of  the  consequences  of  her  action, expressed in her letter and through her counsel, Ms Dyhrberg, in submissions today.

[19]     Ms Tauariki is assessed as of low risk of re-offending due to the unique nature of the offence. A long period of imprisonment is the recommended sentence.

[20]     I  have  read  the  numerous  letters  of  support  submitted  on  behalf  of  Ms Tauariki.    Some  of  them  came  in  advance,  some  of  them  I received  only this morning.    Her  16  year  old  daughter  speaks  movingly  for  herself  and  her  four siblings, of a “great mother” and I note that her sons have added to this in their own

letter presented to me this morning.  Relatives, friends and Mr Irimana, an Apostle from the Ratana Church, and another Apostle in a letter filed this morning, speak of Ms Tauariki’s abilities, her achievements and their pride in her.  One of the letters I have received this morning is from her mother who also speaks with pride of her daughter and her achievements.

Purposes and principles of sentencing

[21]     The  sentence  to  be  imposed  on  Ms  Tauariki  must  seek  to  make  her accountable for the harm she has done to the victim and to the community and to seek to impose responsibility for and acknowledgment of that harm.  It must provide for the victim’s interests as far as that is possible in such a situation.  Importantly, it must denunciate and deter such offending.   I must take into account the need for consistency in sentencing levels and seek to impose the least restrictive outcome that is appropriate in the circumstances.

Aggravating and mitigating factors of the offending

[22]     The murder was committed with the use of a weapon, a 32 cm kitchen knife. [23]     The murder caused extensive loss, damage and harm to the family of Preva

Shortland to which I have already referred.

[24]     I accept there was an element of premeditation, given my factual findings based on the evidence as to how the prisoner came to be in possession of the kitchen knife prior to walking out of the house and issuing the provocative words to her victim, Preva Shortland.  While there was a degree of premeditation involved in her actions, it was not, in my view, at a significant level.   This was not a case, for example, where she left the premises, went away and got a weapon and returned to kill the victim.  Nor a case where she took a weapon to the party with her.  Rather, while the acquisition of the knife and the actions that followed evidence a degree of premeditation, they followed from her anger at the slight and humiliation she felt she suffered in the previous fight where she was assaulted by Preva Shortland and also Pepa Leavea.

[25]     Preva Shortland was a vulnerable victim once Ms Tauariki had possession of the knife but I do not treat this as an aggravating factor for sentencing purposes.

[26]     The Crown submits that the murder having occurred at a family home where there were children and young people present is a matter of aggravation and I accept that is so, although I do not accept that Ms Tauariki was unlawfully present at the property in the “home invasion” sense of the term.  The evidence of Mr and Mrs Maihi about her being asked to leave was somewhat equivocal.  In any event I do not consider s 9(1)(b) of the Sentencing Act is directed at a situation such as in the present case.

[27]     The defence submits that it is a mitigating factor of the offending that Ms Tauariki was subjected to a prior attack by Ms Shortland and also Mr Leavea, although the defence accepts that this conduct does not amount to provocation for sentencing purposes.  There was some evidence that Ms Shortland may have started the first physical altercation between herself and Ms Tauariki, but it appears to have been in response to what Ms Shortland perceived to be words of insult used by Ms Tauariki to or in respect of Mr Leavea.  Ms Tauariki may well have felt angry and upset at the nature of the physical confrontation that involved her, Ms Shortland and Mr Leavea, but she had time to reflect before taking possession of the knife and becoming involved in the second physical altercation which was only brief and which  ended  with  her twice stabbing Ms  Shortland.    I do  not  regard the prior altercation as a significantly mitigating factor.

Approach to sentencing

[28]     Section 102 of the Sentencing Act provides a presumption in favour of life imprisonment for murder unless a sentence of life imprisonment would be manifestly unjust.  There are no circumstances which would rebut the statutory presumption in favour of life imprisonment in this case and counsel do not suggest otherwise.

[29]    Under s 103 a sentence of life imprisonment with a minimum term of imprisonment of ten years or more must be imposed.  This is subject to s 104 which provides for a minimum period of imprisonment of 17 years or more when the

murder fits one or more of the criteria in s 104.  I do not consider s 104 applies to the circumstances of this case and again, counsel do not submit otherwise.

[30]     In determining the length of the minimum term of imprisonment which under s 103 may not be less than ten years, the Court is required to take into account the following purposes:

(a)       Holding the offender accountable for the harm done to the victim and to the community by the offending;

(b)      Denouncing the conduct of the offender;

(c)       Deterring the offender or other persons from committing the same or a similar offence;

(d)Protecting the community from the offender.  (This is not a relevant purpose in this case. The previous three are relevant).

[31]     When a minimum term of imprisonment is imposed with a life sentence it means that the offender is not eligible to be considered for parole earlier than the expiration of the minimum term.   An offender sentenced to life imprisonment is subject to recall to prison for the rest of their life if they offend again after being released on parole.  Whether an offender is released on parole is entirely a matter for the Parole Board at the relevant future time but where a minimum term of imprisonment is imposed the offender must wait until that term has expired before he or she (in this case she) is entitled to apply for parole.

[32]     In this case counsel are agreed that at least a minimum term of ten years imprisonment must be imposed.   In other words that it would not be manifestly unjust to impose a minimum term of at least ten years. The only issue is whether and to  what  extent  the  minimum  term  should  be  increased  beyond  ten  years.    Ms Dyhrberg submits that the minimum term of imprisonment should be ten years.  The Crown seeks a starting point of 11 to 12 years to reflect the degree of culpability of the offender. The Crown submits there are no personal mitigating factors.

[33]     Both counsel have referred to numerous cases where in sentencing for murder the Court has imposed minimum terms of imprisonment under s 103.   I have considered all of those authorities.  I do not propose to refer to those cases by name or in any detail.  It will suffice to refer to perhaps the most comparable case, which was cited by both counsel: R v Millar.1

[34]     In that case the deceased and the offender were at a friend’s flat socialising and drinking.  At some point something was said that annoyed Mr Millar.  He went into the kitchen and put a knife in his pocket.  He was challenged about this.  That led to a scuffle between him and the deceased.  Without warning Mr Millar stabbed the deceased in the neck with the knife.  She died at the flat.

[35]     The Court took a starting point for sentencing of life imprisonment with a minimum period of 11 years. This was increased by six months for previous relevant convictions.   The final sentence imposed was life imprisonment with a minimum period of ten years taking into account Mr Millar’s guilty plea and that he suffered from a particular medical condition.  In sentencing the Judge noted that the deceased “did absolutely nothing whatsoever” to justify what Mr Millar did to her.  He also accepted that there was “a degree of premeditation”, but the Judge accepted Mr Millar picked up the knife, not to stab the deceased, but to use in the event that things “got out of control”.

[36]     Other cases referred to and which I have considered show that in situations where there is a higher level of premeditation and/or a greater degree of violence, minimum terms of around 12 years imprisonment will be selected.

[37]     I  consider  a  starting  point  for  sentencing  of  life  imprisonment  with  a minimum period of imprisonment of 11 years to be appropriate in this case.  It is fair to  say that  Ms  Shortland  did  nothing that  justified the violent  response by Ms Tauariki in stabbing Ms Shortland.   On the other hand there was the preliminary physical skirmish in which Ms Tauariki was assaulted by Ms Shortland and also by Mr Leavea.  As I have already said there was a level of premeditation here, and I

consider it was greater than in the case of Millar.  Having equipped herself with the

1      R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011.

knife Ms Tauariki went outside the house again looking to provoke Ms Shortland and knowing she would have the upper hand because she had the knife.

[38]     Little  allowance  can  be  made  for  the  limited  remorse  expressed  by  Ms Tauariki who continues to maintain she acted in self-defence, although it is implicit in the jury’s verdict that was rejected.   However,  I acknowledge her letter this morning and her acceptance of responsibility for the consequences of her offending. I do take into account her previous good record and the role she has responsibly fulfilled as a caring mother for her five children.   For those factors I allow four months so that the minimum period of imprisonment will be ten years eight months.

Sentence

[39]     Ms Tauariki please stand.  For the murder of Preva Shortland, Ms Tauariki, you are sentenced to life imprisonment.   I order you to serve a minimum term of imprisonment of ten years eight months before you are eligible to apply for parole.

[40]     Stand down please.