R v Teina HC Auckland CRI 2009-055-2368
[2010] NZHC 1595
•24 August 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-055-2368
THE QUEEN
v
MII MARY-ANN TEINA
Hearing: 24 August 2010
Counsel: R Reed for the Crown
K Jones for the Prisoner
Judgment: 24 August 2010
SENTENCE OF POTTER J
Solicitors: Crown Solicitor, P O Box 2213, Auckland 1140
Copy to: K Jones, P O Box 72 1092, Papakura, Auckland
R V TEINA HC AK CRI-2009-055-2368 24 August 2010
[1] Mii Teina. You are to be sentenced on a charge of wounding with intent to cause grievous bodily harm. You pleaded guilty to that charge. The maximum penalty is fourteen years imprisonment.
[2] The Crown offers no evidence on Count 1 in the indictment which charged attempted murder. Ms Teina is discharged on that count under s 347 of the Crimes Act.
Factual background
[3] The offending occurred on 29 January 2009. The victim was your sister, Terry. You had been living together in the family home at Papakura. You were aged nineteen years at the time and your sister twenty-three years.
[4] On 29 January 2009 in the early afternoon you started to argue over what would appear to be a trifling matter, ice cream that had been eaten. The argument escalated. Your sister went to the kitchen and picked up a large knife. She swung it at you and tried to stab you. A member of the household intervened and took the knife from your sister. You were making verbal threats to one another. Your sister retrieved a large blue handled knife from a bedroom. You picked up a black handled steak knife from the kitchen. You confronted one another in the hallway. Your sister was fearful and retreated into a bedroom. She tried to close the bedroom door to secure herself in the bedroom but you reached the door before it was fully closed. You insisted on being let in and eventually your sister, who was trying to hold the door closed, had to give way.
[5] As soon as you entered the bed room you attacked your sister with the steak knife, striking her face and her head area which caused cuts and abrasions. She backed away but you attacked her again. She backed away further until she was against the bedroom wall on the other side of the room. She hunched over and covered her head with her arms trying to protect herself. She was still holding the blue handled knife.
[6] You attacked her again, this time stabbing her to the back area numerous times. With one of those strikes the steak knife you were using broke, so you grabbed the blue handled knife from your sister, effectively disarming her. Using the blue handled knife you stabbed your sister again twice in the back.
[7] The second strike with the blue handled knife was very severe. It thrust up to the hilt of the handle and the blade went through your sister’s spine severing a protective shield around the spinal cord and coming within millimetres of the spinal cord itself. Needless to say, that stab could have resulted in serious permanent disability for your sister.
[8] With that stab your sister immediately dropped to the ground, lying on her front with the knife stuck in the middle of her back.
[9] Another person in the house intervened at this point and the Police and ambulance were called.
[10] The injuries your sister Terry suffered included:
• 2 x 1 cm long stab wounds to the upper right thigh;
• 1 x shearing wound below the left eye;
• 4 x stab wounds in the upper half of her back, one of which punctured the
“shield” that surrounds the lungs;
•1 x wound 10-15 cms deep that severed the protective shield surrounding the spinal cord.
[11] You said to the Police that you attacked your sister in this way because you were angry.
[12] The sentence that I impose on you Ms Teina must hold you accountable for the harm you have done to the victim, your sister, and to the community by your offending. It must promote in you a sense of responsibility and acknowledgment of the harm that you have done, provide for the interests of the victim as far as that is possible, denounce and deter this type of conduct and protect the community from you to the extent that is necessary or appropriate.
[13] At the same time I must look to impose a sentence which is the least restrictive in the circumstances. I must take account of the need to assist in your rehabilitation and reintegration into the community.
Reports
Pre-sentence report
[14] The report notes that Ms Teina was successful both academically and in sports until the age of fourteen years when she was expelled from school for fighting and smoking cannabis. From that time her education, work record and lifestyle have been patchy. She has not been in paid employment since a work site accident when she was about seventeen. She became involved in heavy consumption of alcohol, glue sniffing and she drifted into street prostitution. For a time methamphetamine was her drug of choice.
[15] Her health is described as good apart from being diagnosed with psychosis when she was eighteen years and later, paranoid schizophrenia. A psychiatric report, to which I shall refer shortly, considers in more detail these factors.
[16] Ms Teina expressed remorse for her offending to the probation officer. She explained that she was angry, “... I just couldn’t control myself” she said. She said she was shocked when she saw the knife embedded in her sister’s back.
[18] The report writer assesses Ms Teina as being of very low risk of re-offending but notes that the assessment does not take into account the serious conviction for which she is to be sentenced today, which the report writer notes would elevate the risk assessment. The report recommends imprisonment as the only realistic option for sentence.
Psychiatric report
[19] A psychiatric report prepared by Dr Himadri Seth, a consultant psychiatrist with Regional Forensic Psychiatry Services, is dated 13 July 2010. The report notes that Ms Teina first had a psychiatric assessment in April 2008 although she had experienced psychotic symptoms, possibly from the age of fourteen, which were exacerbated by her use of substances. She had treatment for psychotic symptoms during 2008-2009. Since a report completed in November 2009 Ms Teina has been compliant with her medication. She has continued to be treated under s 29 of the Mental Health Act, which provides for community treatment orders. The report expresses concerns from the clinical team that she has continued to use solvents as recently as March-April of this year when she was on bail for this offending I note. The report notes that it has been difficult to keep Ms Teina engaged in drug and alcohol programmes and to minimise her use of illegal substances.
[20] Dr Seth expresses the opinion that Ms Teina could be diagnosed as suffering from schizophrenia which is of a treatment resistant nature and is complicated by her ongoing use of illicit substances and alcohol, especially solvents. He says it is clear that she requires ongoing close supervision because of her continuous disorder of mood, cognition, volition, perception and illusions, such that when she is unwell there is an increased risk of harm to herself and others and she has limited ability to care for herself. The report concludes with important recommendations for Ms Teina’s ongoing care.
[21] Ms Teina’s sister, Terry, has filed a victim impact statement and has submitted through her counsel a note in which she says that the incident was “... caused by both of us. I am as much to blame as her.” She expresses her love for her sister, she says she forgives her sister for what happened and she accepts that her sister is sorry for what she has done.
Aggravating factors
[22] The guideline judgment for offending under s 188(1) of the Crimes Act is R v
Taueki.[1]
[1] R v Taueki [2005] 3 NZLR 372.
[23] In Taueki the Court of Appeal said[2] that all grievous bodily harm offences will involve a high degree of criminality and significant injury to the victim which will require the imposition of a term of imprisonment.
[2] At [27].
[24] Aggravating features are listed[3] in the judgment. In this case the aggravating features are:
[3] At [31].
• the serious injury suffered by the victim, injuries which came close to injuring her lungs and her spinal cord;
• the use of weapons, two knives were used by Ms Teina;
• extreme violence. Ms Teina stabbed her sister seven times using significant force such that the first knife broke and two major wounds were of considerable depth;
• attacking the head. Initially the victim was struck in the face and the head;
• vulnerability of the victim. Although Ms Teina’s sister Terry was initially armed, after the knife was taken from her, Ms Teina continued to stab her sister in the back when she was hunched over and vulnerable to the continuing attack.
[25] Counsel for Ms Teina, Mr Jones, submits that identifying use of weapons as an additional aggravating feature has an element of double counting, because the use of the weapons is inherent in the nature of the serious injuries suffered by the victim and in the nature of the extreme violence used. I do not accept that submission. The use of weapons is clearly identified in Taueki as a separate aggravating factor and logically so. The use of weapons in a violent attack greatly increases the risk of serious bodily harm to the victim, as is only too clearly demonstrated in this case where the knife attacks only narrowly missed causing injury which could have resulted in permanent disablement or worse, for Ms Teina’s sister.
[26] However, I accept the other submission of the defence in relation to aggravating factors that the primary focus of the attack was on the victim’s back rather than to her head. I do not place significant weight on the aggravating factor of attacking to the head.
[27] The Crown also submits that the offending has some features of a “premeditated domestic assault” as identified in Taueki.[4] I do not accept that submission. There may be some aspects but the incident in this cse was not premeditated or planned. But rather appears rather to have been the result of uncontrolled anger that arose out of a disagreement between the two sisters about a comparatively minor domestic matter.
[4] At [39]c).
[28] There are no aggravating factors in relation to Ms Teina personally. She has a previous conviction but it is not relevant for this sentence.
Mitigating factors
[29] Counsel for both parties agree there are two mitigating factors relevant in this case: the mental illness or disorder suffered by Ms Teina and her guilty plea for which she should receive the full credit of a discount of one-third since the guilty plea was entered as soon as psychiatric reports confirming her fitness to plead were made available to the Court.
[30] Mr Jones also notes as relevant mitigating factors that Ms Teina was only nineteen years at the time of this offending, and the reconciliation between the two sisters which is referred to in the pre-sentence report and evidenced by the note from Terry Teina submitted through her counsel and the victim impact statement.
[31] Counsel are also agreed that there is an element of provocation but differ as to its impact on sentencing. The Crown submits the provocation arose in the initial stages of the incident but that the provocation was spent by the time Ms Teina followed her sister down the hallway, forced her way into the bedroom and began to strike her. Ms Reed contrasted this situation with a situation of sustained provocation that can arise in domestic situations over a period of years where the perpetrator of violence has herself been the victim of a lengthy period of violence.
[32] Mr Jones submits that the provocation on the part of the victim was significant. It was both physical and verbal. The victim initiated the incident and first picked up a knife with which she threatened Ms Teina, trying to stab her with it. Having been disarmed of that knife by a third party who intervened, the victim retrieved another knife from a bedroom and confronted Ms Teina with it, taunting her with “fucken bitch, I’ll stab you up”. It was only at that point that Ms Teina took up a knife and confronted the victim, and the attack on the victim then followed quickly. The defence submits that given the timeframe, the provocation displayed by the victim would have been a very real operative force on Ms Teina’s mind at the time of the attack and not a spent force, as submitted by the Crown.
[33] Essentially I accept the submissions for the defence on this aspect. This incident was continuous. The insults and the threats by the sisters followed quickly
on the initial confrontation with knives. Although there was a point when the prisoner got the upper hand, when she forced open the bedroom door and quickly attacked her sister with the steak knife, I do not consider it can be said that by that moment the provocation was spent. This was a continuous, angry altercation between the two sisters in which the provocation initially provided by the victim Terry, was in my view operative throughout.
Sentencing
[34] There is common ground between counsel in significant respects in relation to sentencing. It is agreed that imprisonment is the only appropriate sentencing response and that this offending falls within Band 2 of Taueki. Offending within Band 2 will attract a starting point of five to ten years imprisonment.
[35] The Crown submits that a starting point of seven to eight years imprisonment is appropriate, referring to the cases of R v Wilson,[5] and R v Whakataka.[6]
[5] R v Wilson HC Auckland CRI-2006-092-15152, 12 May 2009.
[6] R v Whakataka HC Hamilton CRI-2007-019-3859, 23 September 2008.
[36] In the case of Wilson there were two victims and clear premeditation. The Crown notes that the injuries were less severe. The starting point taken was eight years. In Whakataka the aggravating features included the use of a weapon, serious injury to the victim and that the victim was a Police Officer acting in the course of his duties. There was an element of preparation or premeditation in that Mr Whakataka had placed a knife next to the door when he came outside to speak to the Police. A starting point of eight years imprisonment was taken.
[37] I accept that on the basis of the authorities relied on by the Crown a starting point in the range of seven to eight years would be appropriate given the sustained attack and the level of violence involved in this case. Mr Jones does not disagree. But in the circumstances of this case the element of provocation which I have already assessed is a relevant factor, must be taken into account in setting the starting point.
[38] Mr Jones submits that the starting point should be towards the lower end of Band 2 in Taueki. He refers to the judgment in R v Moa[7] where this Court took a starting point of five years six months imprisonment. In that case Mr Moa was found guilty on a charge of wounding with intent to cause grievous bodily harm. The victim was his female cousin, Ms Watene, with whom he was living as a flatmate when the offending occurred. An argument broke out when Mr Moa
returned to the home on the day of the offending. Ms Watene verbally abused him and then went to her room and came out with an axe. She then calmed down and returned to her bedroom taking the axe with her. She came back to the living room without the axe. In the meantime Mr Moa had taken two knives to the living room and, presumably anticipating that Ms Watene would return to the living room armed, he attacked her, stabbing her several times in the struggle that ensued and inflicting serious injuries. Courtney J said she did not ascribe much weight to any element of slight premeditation that might be involved. She accepted and placed considerable weight on the element of provocation, notwithstanding that the abuse from Ms Watene was only verbal and that Ms Watene had put her weapon back in the bedroom before Mr Moa attacked her. The Judge took a starting point of five and a half years which she considered the lowest reasonable starting point in Band 2 and reduced that by one year to four and a half years to reflect the provocation presented to Mr Moa.
[7] R v Moa HC Auckland CRI-2008-092-001318, 23 April 2009.
[39] As I have said, a starting point in the range of seven to eight years would be appropriate in this case absent the element of provocation. I take seven and a half years as an initial starting point. To reflect the element of provocation, I adjust the starting point to six and a half years.
[40] I allow the following discounts in relation to the mitigating factors:
• For Ms Teina’s mental health issues, twelve months.
•For her youth, lack of previous offending and the reconciliation that has been achieved with the victim and with part of the wider family, six months.
[41] The revised sentence is thus five years. Applying the methodology in R v Hessell,[8] the discount for the prisoner’s early guilty plea is to be allowed at this point. A discount of one-third (twenty months) from five years results in an end sentence of three years four months imprisonment. I note that no minimum period of imprisonment is sought by the Crown.
Mental Health aspects
[8] R v Hessell [2009] NZCA 450.
[42] I specifically refer to ss 45 and 46 of the Mental Health (Compulsory Assessment and Treatment) Act. Section 46 provides for the Chief Executive of the Department of Corrections to make arrangements for a person who is detained in prison, whether or not that person is mentally disordered, to be admitted to and detained in a hospital, if the Chief Executive considers the prisoner would benefit from psychiatric care and treatment which is available in a hospital but not available in the prison. Section 45 enables the Chief Executive to apply for an inmate to have compulsory treatment.
[43] I refer to these provisions in the context of Dr Seth’s diagnosis and recommendations for the continuing care of Ms Teina which he recommends should be continued in the medium to long term. I direct that a copy of his report and these sentencing notes be sent to the Chief Executive of the Department of Corrections.
[44] I also wish to observe that any progress that Ms Teina is able to make in future will depend significantly on the support that is given to her by her family. She will need all the support she can get. That support must include leading by example as well as encouragement of her in her personal endeavours.
[45] Before I ask Ms Teina to stand I want to record the great assistance I have had from the very responsible and helpful submissions from counsel. I also want to note that I have been joined on the Bench this morning by Peters J. It has been a pleasure and of assistance to me.
Result
[46] Ms Teina please stand. The sentence imposed upon you, Ms Teina, is three years four months imprisonment. I wish you well.
[47] You may stand down.
0