R v Tinei

[2023] NZHC 1869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-092-007447

[2023] NZHC 1869

THE KING

v

POI TINEI

Hearing:	19 July 2023
Counsel:	HD Benson-Pope and LA Taula for Crown PL Borich KC for Defendant
Judgment:	19 July 2023

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. PL Borich KC, Manukau.

R v TINEI [2023] NZHC 1869 [19 July 2023]

Introduction

[1]    Poi Tinei, on 18 September last year you murdered Teao Wiki. You did so by pouring petrol over her and setting her alight. You did nothing to help as others tried to douse the resulting house fire and, as I shall discuss, you have a history of threatening and harming the victim.

[2]    It is common ground you must be sentenced to life imprisonment.1 The only issue is the number of years you must serve before you may become eligible for parole. The law calls this a minimum period of imprisonment. It is my focus today.

Facts

[3]    By the time of the offending, you had been in a relationship with the victim for approximately three years. The two of you had repeatedly separated and reconciled. Indeed, you and Ms Wiki had been apart until approximately two weeks before the offending. She then came to stay with you and your family.

[4]    On the evening of Saturday, 17 September last year, the two of you were at a bar. You argued. The victim left and went to the home of a nearby family member. You stayed at the bar.

[5]    You came home at approximately 9.30 that evening. She returned at approximately 11.13 pm.

[6]    You and the victim then argued. Another member of the household heard that about midnight.

[7]    You had a petrol can in your bedroom. You poured petrol over the victim, on the mattress, and around the bedroom. You then set the petrol alight.

[8]The fire activated a smoke alarm, waking those inside.

1      Sentencing Act 2002, s 102.

[9]    Your brother heard sounds from your bedroom consistent with thumping and slapping, followed by the victim crying out for help.

[10]   At some point, you left the home. You made no attempt to help the victim or check other members of your family were not in danger. When members of the public and your brother-in-law attempted to douse the fire using a garden hose, you “appeared to try to hinder their efforts”.2

[11]   When emergency services arrived, you were repeatedly asked if there was anyone else inside. You ignored some of these questions and gave inconsistent responses to others. You did not say the victim was inside. The summary of facts also describes you as being evasive and mingling with the crowd of onlookers.

[12]You suffered severe burns to your feet, legs, back and neck.

[13]   The victim’s body was found inside the home later that day. She was in the bathroom, lying face down in the bathtub. That room is across from, or next to, your bedroom. I draw the obvious inference: the victim had tried to save herself by going into the bathroom, then lying in the bath.

[14]   A postmortem was conducted. The victim had soot in her airways, confirming she was alive when you set her alight. A large contusion was found over her right eye. Given this injury—and given your brother heard noises in the bedroom consistent with thumping and slapping—I find, beyond reasonable doubt, you assaulted the victim by striking her to the head at, about, or shortly after you had set her on fire.

[15]   Police spoke to you at the hospital. You said you believed everyone had left the house. You declined to say more.

[16]   You were charged with assaulting the victim on 17 September last year, but that was a holding charge only. On 20 October last, you were charged with her murder.

2      Summary of facts, para 27.

[17]   You first appeared in this Court on 9 November last. On 23 February this year, your lawyer requested the court  arrange  a  date  for  you  to  enter  a  guilty  plea. On 3 March this year, you pleaded guilty to the charge of murder.

Victim impact

[18]   Five of seven victim impact statements were read in court. I shall not recite from them beyond capturing one observation: that Ms Wiki’s death feels as though it has created “a life sentence” for others. I add these remarks about victim impact.

[19]   Ms Wiki was the youngest child of 10. She came from a large whānau—she was much loved. She has four children and grandchildren too. Her death has devastated the family. Unsurprisingly, the manner of her death continues to haunt them.

[20]   Mr Tinei, your actions continue to send waves throughout your own family, throughout the victim’s family, and throughout the wider community. That shock will endure for years.

Minimum period of imprisonment

[21]   The law requires I impose a minimum period of not less than 17 years if the murder is especially bad, unless that would be manifestly unjust.3 The Crown says your minimum period should be not less than 19 and a half years, subject to guilty plea discount. On your behalf, Mr Borich KC says after applicable discounts, your minimum period should be 15, 16, or perhaps 17 years, but no more.

[22]   The Crown contends your murder of the victim was especially bad because it was committed with a high level of brutality, cruelty, depravity, or callousness.4 The Crown emphasises you poured petrol on the victim and set her alight, while she was conscious. Mr Borich responsibly acknowledges all three similar cases—in which the

3      Sentencing Act, s 104.

4      Sentencing Act, s 104(1)(e).

victim was murdered by being set on fire—have been treated as especially bad for just this reason.5

[23]   The Crown also draws attention to your related callousness in assaulting the victim (to the head); failing to do anything to help her or others; seemingly hindering others’ efforts to fight the fire; and your indifferent responses to emergency services. It, therefore, says it is unarguable that your offending was committed with a high level of brutality, cruelty, depravity, or callousness, and thus caught by the especially bad murder provision. I agree.6

[24]   To determine your minimum period, I now consider the things that make your offending more serious; whether any things make your offending less serious; and similar cases.

Aggravating factors

[25]Four things make your offending more serious.

[26]   First, you abused the victim’s trust. Because you and she were in a relationship, the victim was entitled to look to you for comfort, support, and protection. You betrayed her trust in the most significant way imaginable—by killing her.

[27]   Second, you have a history of threatening and harming the victim. I begin with the last episode, and I work forwards:

(a)On 19 September 2019, you argued with the victim and her female friend. The friend called Police. She and the victim were in her car. You threw a rock at the windscreen, smashing it. You then poured petrol over the victim’s car and set it alight. It suffered extensive fire damage, as did the carport. You were convicted of arson and wilful damage.

5      R v Khan [2004] BCL 1116 and on appeal, R v Khan CA470/04, 14 June 2005; R v Kumar & Permal [2015] NZHC 954 and on appeal, Kumar v R [2016] NZCA 329; R v D [2014] NZHC 2272; and on appeal, DD (CA595/2014) v R [2015] NZCA 304.

6      For this reason, further analysis at this juncture is unnecessary; see the recent decision of Frost v R

[2023] NZCA 294 at [36].

(b)On 22 October 2020, you arrived uninvited at the home of the victim’s sister. The victim was then living with her sister. You were asked to leave. You did so, but only after breaking every window of the victim’s car. You were convicted of wilful damage for that offending.

(c)On 6 January last year, you and the victim argued. You abused her verbally. She drove away, frightened. You sent her multiple threatening messages, including one to burn down her home. You were convicted of behaving threateningly.

(d)On 22 January last year, you and the victim again argued. You threw a coffee table at her. It struck her arms and landed on her ankle. You then went outside and smashed all of the windows to her car and all of the lights to her car. You were convicted of assault with a weapon and wilful damage.

(e)Police had been called 15 times during your relationship with the victim.7 I put to one side the observation in the summary of facts that you were considered to be the “predominant aggressor” on each occasion. I do so because it is not clear this constitutes a fact in this context.

[28]   Third, and returning to things that make your offending more serious, you were on bail for the January offences when you murdered the victim.

[29]   Fourth, as the Crown observes, you were subject to a protection order in relation  to  the  victim  when  you  murdered  her.   She  had  obtained  that  order    3 August 2022. It was served on you 8 August 2022.

[30]   It follows that while your murder of the victim was not premeditated, it would be wrong, I think, to describe it as out of the blue. You had previously assaulted the victim. You had threatened to burn down her home. And, you had set her car on fire. Your use of fire needs to be seen in this context. You appear to have regarded it as an

7      Summary of facts, para 3.

instrument of control. That you had the can of petrol in your bedroom may be thought odd.

Mitigating factors and personal circumstances

[31]I now turn to things that may make your offending less serious.

[32]   As I have explained, you pleaded guilty 3 March 2023. I consider that plea reasonably prompt, once time is removed for the Christmas vacation. Whether the evidence against you was strong is not something I have been told about. But, whatever the position, guilty pleas in this context typically attract discounts of not more than one or two years, a stance recently confirmed by the Court of Appeal.8

[33]   Mr Borich raises the possibility of an additional discount for remorse, on the basis you told the probation officer you were “sorry it got this far”; “own my actions”; and did not wish to prolong this case. However, you also told the same officer some of the details in the agreed summary of facts were “not true”. Your pre-sentence report records that you said that you “didn’t pour any petrol”. Today, Mr Borich says that the probation officer has misunderstood this remark. I accept that is possible. However, what is clear is this: you were “not open to discussion” in relation to your use of violence or the attitudes that underpin them with the probation officer.

[34]   I am not persuaded discount for remorse is warranted. You showed none on the evening in question. And, even putting aside the observations I have just mentioned, helpful remarks to a probation officer do not, without more, typically provide an adequate basis for discount for remorse additional to that inherent to a guilty plea.

[35]   Your personal  circumstances  do  not  identify  any  mitigating  features.  You are 51. You describe a stable upbringing, in which a large family unit and the church provided a seemingly supportive framework.

8      Frost v R, above n 6.

[36]   You have had various jobs. You report finding it difficult to stay in a workplace for long. You say, “nothing interested you”. That said, I gather you are content working in the prison kitchen.

[37]   You have convictions other than those I have discussed. Alcohol appears to have animated some. It may have played a role in this offending too.

[38]   You are considered to be at high risk of further offending. Your risk of harm is assessed as high.

[39]   It follows the only thing that makes your offending less serious is your reasonably prompt guilty plea.

Similar cases

[40]I now turn to the three similar cases, which like yours, are horrible.

[41]   First, in R v Khan, the 23-year-old defendant poured lighter fuel over the victim and set her alight.9 The offending was premeditated. The especially bad murder provision was engaged for both reasons. Frater J adopted a minimum period of either 19 and a half or 20 years’ imprisonment; and deducted either six or 12 months for the defendant’s age. There was no guilty plea. The defendant received a minimum period of 19 years. The Court of Appeal said that “cannot be described as manifestly excessive”.10

[42]   Second, in R v Kumar & Permal, the 18 and 20-year-old defendants assaulted the victim, rendering him “deeply unconscious”.11 The defendants then set him alight. The offending was premeditated, for reward. The defendants had stolen $30,000 from the victim, albeit that offence was not charged. The especially bad murder provision was engaged “on a number of bases”.12 Venning J imposed a minimum period of

9      R v Khan [2004] BCL 1116.

10     R v Khan CA470/04, 14 June 2005 at [16].

11     R v Kumar & Permal [2015] NZHC 954 at [8].

12 At [13].

17 years   on each  defendant.    Neither pleaded guilty, but it appears their age constrained the minimum periods. Both were upheld by the Court of Appeal.13

[43]   Third, in R v D, the defendant assaulted the victim, her father-in-law, leaving him unconscious.14 She then set him alight. The offending was premeditated, and for reward. The defendant had committed other offending too, again for reward. Ellis J concluded the especially bad murder provision was engaged because of

(a) premeditation and (b) the murder was committed with a high level of brutality, cruelty, depravity, or callousness. The Judge adopted a minimum period of 18 years’ imprisonment. The defendant suffered a mental illness and pleaded guilty three weeks before trial. The Judge deducted three years for these things. The Court of Appeal upheld the defendant’s 15-year minimum period.15

[44]   Mr Tinei, Mr Borich says your offending is less serious than those cases because it was not premeditated and not for reward. I disagree your offending is less serious for three reasons.

[45]   First, the victims in Kumar & Permal and D were unconscious when set alight. Distressingly, Ms Wiki was not.

[46]   Second, taken together, the four things I have referred to as making your offending more serious could be said to constitute “other exceptional circumstances” within the especially bad murder provision.16 But, even if they do not, their constellation makes your offending appreciably more serious. I repeat what I said earlier, it is important. While it is correct your offending was not premeditated, it cannot be said it did not come out of the blue. Again, you appear to regard the use of fire as an instrument of control.

[47]   Third, in pouring petrol over the victim, or I should say not only the victim but also the mattrass and then around the bedroom, you deliberately risked a very serious blaze to the home and in turn others’ lives.

13     Kumar v R [2016] NZCA 329.

14     R v D [2014] NZHC 2272.

15     DD (CA595/2014) v R [2015] NZCA 304.

16     Sentencing Act, s 104(1)(i).

[48]   For these three reasons, I consider your offending to be as serious as that in Khan. I, therefore, adopt a minimum period of 19 and a half years’ imprisonment. I deduct one and a half years for your reasonably prompt guilty plea, which, as I have said, is the only thing that makes your offending less serious.

[49]   I pause to record this before passing sentence. An 18-year minimum period is required to hold you accountable for an especially bad murder; to denounce your offending; to deter others from like-offending; and to protect the community.17

Sentence

[50]Mr Tinei, please stand.

[51]   For murdering Teao Wiki, I impose life imprisonment with a minimum period of 18 years.

[52]Stand down.

……………………………..

Downs J

17     Sentencing Act, s 7(1).