R v Tinoa'i HC Wellington CRI 2009-085-2098

[2010] NZHC 964

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-085-2098

THE QUEEN

v

EMANI TINOA'I

Hearing:         18 June 2010

Appearances: G Burston and S McLean for the Crown

I Antunovic and C Parkin for the prisoner

Sentence:       18 June 2010

SENTENCING NOTES OF CLIFFORD J

Introduction

[1]      Mr Tinoa’i, you appear for sentence today having been convicted, after a trial before me here in the High Court, of the murder of your wife Moliga Tinoa’i at the Mobil Service Station in Johnsonville late in the evening of 14 March 2009.  At your trial you accepted that you had killed Moliga, but said you had been provoked and were  therefore  guilty of  manslaughter,  and  not  murder.    The  jury rejected  that defence, and found you guilty of murder.

[2]      I acknowledge the presence in Court today of the family and friends of the victim of this human tragedy, Moliga Tinoa’i.  I also acknowledge the presence in

R V TINOA'I (SENTENCING) HC WN CRI-2009-085-2098  18 June 2010

Court today of the family of Mr Tinoa’i, who is to be sentenced today.  I will refer later to the victim impact statements that have been made by Moliga’s family members, to the letters of support I have received for Mr Tinoa’i and to the significance of the ifoga ceremony that I am aware has taken place.

[3]      But Mr Tinoa’i I will first explain to you, and to all here in the Court, the decisions that I must make today to decide on your sentence.

[4]      Where a person is convicted of murder, our law requires the Court to impose a life sentence, unless such a sentence would be manifestly unjust.  Such a sentence is clearly not manifestly unjust here.  Therefore Mr Tinoa’i, you are sentenced to life imprisonment.

[5]      Where a Court imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the convicted person must serve.   The minimum period is the minimum term of imprisonment that the convicted person must serve before they are eligible to apply for parole.  This is because, even though a person receives a life sentence, they may still during that sentence apply for parole. Eligibility to apply for parole does not mean that the convicted person will automatically be released.  The Parole Board is required to consider the safety of the community and  whether  the  convicted  person  would  pose  an  undue  risk  to the community upon release.  Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison.

[6]      The minimum period of imprisonment is the time that must elapse before a person convicted of murder is eligible to be considered for parole.

[7]      That minimum term may be not be less than 10 years, and must be the minimum term the Court considers necessary to hold an offender accountable for the harm done, to denounce the offender’s conduct, to deter the offender and other persons from committing similar crimes and to protect the community from the offender.

[8]      Our law also provides that for some murders the minimum period must be at least 17 years.  The Crown has submitted that this is not such a murder and I agree with that submission.

[9]      Therefore, the decision I must make this morning is what is the minimum term, to be at least 10 years but no more than 17 years, that is appropriate with regard to your offending.

Summary of Facts

[10]     As part of my consideration of your sentence, I need to record the essential facts of this murder.  I know, from the victim impact statements and my observations during the trial, how hard it can be for those affected to have to listen to some of these details.  It is, however necessary for me to do this.

[11]     By March 2009, the marriage between you and Moliga was no longer a happy one.  For some time you had become increasingly suspicious that Moliga was having an affair.  That suspicion was based, it would appear, principally on various phone calls that had been made to Moliga that you had picked up, or that you had seen her making, in particular on two occasions after she returned home from work. In my judgment, however, and having heard all the evidence, the unhappiness was also based on the fact that Moliga, particularly by going to Whitirea Polytechnic to study for a formal nursing qualification, was expanding her life and her range of contacts in a way that you found difficult to cope with.   She was growing and changing as a person and I think that, unfortunately, you felt uncomfortable with and threatened by that.

[12]     I accept the Crown’s case that in the time leading up to the events in March you had been violent towards Moliga.  I accept that that had gone back some time. Given the evidence I heard, however, I am unable to reach a clear view as to the nature or extent of that violence.

[13]     I also note that, as matters transpired, Moliga had very recently commenced an intimate relationship with another man.  That was not something, however, you were aware of at the time.

[14]     Against that background,  you saw what  you thought was a love bite on Moliga on the Friday before the murder.  You and Moliga argued.  Moliga told her sister-in-law that you had threatened to kill her.  You wanted Moliga to, as it were, confess to you.  She would not give you the confirmation you wanted.  I accept the Crown case that you inflicted violence upon her that Friday.

[15]     There was another confrontation early on Saturday morning.

[16]     Fearful for her safety, and concerned about her and your adopted daughter Cecilia’s wellbeing, Moliga then drove Cecilia to her brother and sister-in-law’s house in Wanganui.

[17]     On her return from Wanganui, Moliga went to work at the Malvina Major home on Burma Road.   You telephoned her there on several occasions.   Moliga texted her son Nashua, and telephoned your nephew Joseph.  She told both of those people, obviously people close to her, that you had threatened to kill her.

[18]     In the early evening, having collected the murder weapon – a boning knife – from your home, you went to Malvina Major, got into Moliga’s car and waited for her there.  At some point you had been drinking.  When Moliga got into the car late that evening after finishing her shift, you confronted her.  You admit threatening her with the knife, but you said only to force her to tell you the truth and to force her to drive home.  As she drove through Johnsonville, Moliga, no doubt in great fear for her safety, turned into the Johnsonville Petrol Station against your wishes where she there tried to leave the car.

[19]     At  this  point  you stabbed  her  a number  of  times.    It  is  clear,  from  the defensive wounds that Moliga suffered, that she fought for her life.  She managed to escape from the car onto the forecourt of that petrol station, and screamed for help. At that point you left the car, walked over to her and delivered the final blow or

blows to her.   The final blow to her spine was delivered with such force that the knife became embedded in her vertebrae.

[20]     Moliga died from her multiple stab wounds.   She suffered some 18 stab wounds in all, and some seven defensive wounds.

[21]     As I said, at  your trial the jury rejected the defence of provocation  you advanced.

[22]     Nevertheless, it has been contended for you that you had clearly lost the power of self-control when you attacked your wife with the knife inside the motor vehicle.   Given the jury’s verdict, and my assessment of the facts, that is not a submission I accept.  In particular, in my judgment the pre-meditated way you took the knife with you, the way you used the knife in the car to threaten Moliga and to force her to drive off, together with your action in leaving the car and walking across the forecourt to deliver the final blow to her, all speak of a person acting deliberately and in control.   You were, by my assessment, giving effect to a decision you had reached, perhaps subconsciously, that if Moliga did not give you the confirmation you wanted, you would kill her.

[23]     Moliga died on the forecourt of the Mobil Service Station in Johnsonville. These events were witnessed by a number of members of the public.   The Police were called.  When they arrived, you acknowledged responsibility for her death.

[24]     As  you  said  in  your  statement  to  the  Police,  you  killed  her  for  your satisfaction.

Other background material

[25]     In addition to those essential facts, there is other background material that I need to refer to.  That is the pre-sentence report, the victim impact statements and the letters of support I have received for Mr Tinoa’i.

[26]     There are two aspects of the pre-sentence report that I wish to comment on.

[27]     The first relates to you, and your personal background.  As the pre-sentence report comments, and as a number of the letters of support I have received confirm, you come from a traditional Samoan family background.  You were born in Samoa and only moved to New Zealand when you were 33.   You have limited formal schooling, and in New Zealand have maintained steady employment at the Taylor Preston Freezing Works.  You were regarded as a reliable employee.

[28]     Your family speaks warmly of you as being a person who holds to traditional Samoan values and to your Catholic faith.  You are a Matai, and as I understand it, you hold that position because of your role as an orator and respected elder in your family group.  Your parish priest says that you and Moliga were caring and loving parents.

[29]     This offending therefore came as a shock to your family, and is regarded by them as being completely out of character for you.  I accept that general proposition, but note also my acceptance that you were violent towards Moliga in the period leading up to her death.

[30]     The other aspect of the pre-sentence report that I wish to comment on is the probation officer’s observation that you continue to try and shift the blame for your offending on to Moliga.  You claim to the probation officer that if Moliga had told the truth it would never have happened.   The probation officer observes that the remorse you express must necessarily be qualified by that continued shifting of responsibility.

[31]     I also acknowledge that this morning you wished to personally address the Court.  I have explained to you, through Mr Antunovic, why I did not think that was appropriate.  Nevertheless I accept the remarks that Mr Antunovic has made on your behalf this morning.  I accept you are remorseful.

[32]     We have heard this morning Orla Tatupu read her victim impact statement on behalf of the family, and we have understood and listened to what you have told us Ms Tatupu.  I have read and carefully considered the victim impact statement from Moliga’s son, Nashua, provided to the Court.

[33]     It is clear from those victim impact statements, and also from the evidence from Moliga’s many friends and acquaintances I heard at the trial, that she was a warm  and  caring  person.    She  was  admired  by  all  at  Malvina  Major  for  the dedication and kindness that she brought to her job there of looking after the people in her care.  Caring for the aged is a challenging, but very important role, and one that does not often get the recognition that it deserves.  Moliga will, no doubt, be greatly missed by her colleagues and by her patients.

[34]     It is also clear to me that Moliga was a much loved member of her family and a loving mother of her children Nashua and Cecilia.

[35]     I acknowledge the presence of those of her family here in court today.  I also acknowledge Moliga’s parents, both of whom I understand are still alive and living in Samoa.  I acknowledge the impact on you all of the tragedy that is Moliga’s death, and of the grief that that tragedy has brought into your lives.

[36]     I recognise that, for all of you, the sadness of Moliga’s death will be with you always, and that you will all always miss her and feel her loss greatly.

[37]     I also acknowledge the letters of support I have received for you, Mr Tinoa’i. They have come from your brother Tofaeono Misatauveve Joseph Hollywood, the paramount  chief  of  your  family  group,  your  sister  Tala  Muliipu,  your  nephew Joseph, your parish priest Father Patelehio, a neighbour and your employer Taylor Preston.  All speak highly of you, and the role you played in your family, especially as regards looking after your parents and your role as a Matai and an orator.

[38]     I accept the tragedy this is for you and your family.

[39]     I acknowledge in particular the letter I received from your nephew Joseph who, although he gave evidence at the trial – something that was clearly difficult for him but done with respect and dignity – speaks of the love and affection he continues to feel for you.

[40]     But you are alive.  And Moliga is dead.  And you are to be held accountable for that today.

Sentencing discussion

[41]     At the outset I outlined the decision I must make to set for you the minimum term of your imprisonment.

[42]     In setting that term I am required to set the minimum term that in my view is necessary:

a)        to  hold  you  accountable  for  the  harm  done  to  Moliga  and  the community by your offending;

b)        to denounce your conduct;

c)        to deter you and other persons from committing similar crimes; and d)         to protect the community from you.

[43]     I have considered the legal submissions I have received from the Crown and from the defence.  I have in particular referred to the cases cited by the Crown, and have reflected on the significance of those cases for the decision I must make today.

[44]     The Crown  submits that a minimum sentence of 15  years  would be the appropriate outcome.   The defence submission is that a minimum sentence of something less than 14 years should be settled upon.

[45]     The  Crown  emphasises  the  following  features  of  the  murder,  which  I

acknowledge as being relevant:

a)       Moliga was a victim of family violence and in that she was inherently vulnerable to you, given the power and control you as her husband were able to exert over her;

b)The murder was the culmination of a final episode of violence that was prolonged over more than 24 hours, and included physical violence on the Friday night and psychological violence on the Saturday and threats to kill;

c)       There was pre-meditation involved in those threats and your taking the knife, going to Malvina Major, waiting for Moliga in her car and then, by your own admission, using the knife to force her to drive off;

d)This was a brutal murder, which exhibited a degree of callousness as shown by your actions; and

e)       Finally, the obvious effect on Cecilia and Nashua in particular who have in effect lost both their parents and their home.

[46]     Mr Antunovic, on your behalf, points to the unhappiness you felt in your relationships, the concerns  you had for  your own future, and for those of  your children and Cecilia in particular, if your relationship with your wife was to break down and how those pressures had built up on you over time.  Mr Antunovic has also referred to your own good character, and, as I have mentioned, the traditional Samoan background that you come from, whose values you generally throughout your life observed and reflected – until these tragic events.

[47]     I  have  been  referred  to  the  tragically  similar  case  of  Tiumalu,  where  I

imposed a minimum sentence of 14 years.

[48]     The  Crown  suggests  a  sentence  of  15  years  would  be  appropriate  here, because of the greater degree of violence involved and the premeditation.  Pointing

to your character, and your previous good record, the defence submits that something less than 14 years would be appropriate.

[49]     I accept the Crown’s submissions that the violence involved here requires and supports a minimum term of 15 years.  At the same time, and as I indicated, I accept the defence submission that you are a man who has not previously offended in any relevant way, subject to this violence, and are a person of otherwise good character.

[50]     In  terms  of  your  personal  circumstances,  there  is  also  the  question  of remorse,  and  the  significance  of  the  ifoga  ceremony  that  has  been  carried  out between your family and Moliga’s family.  I acknowledge the cultural significance of that ceremony and that it is, in a cultural way, an act of remorse and reparation and  something  I must  take  account  of  in  terms  of  s 10  of  the  Sentencing Act. However, and as submitted by the Crown and accepted by Mr Antunovic on your behalf, it is not something on which I consider it appropriate to place any material weight in determining a sentence for a murder such as this.

[51]     Taking all those matters into account, that is:

a)        the statutory criteria that I must consider;

b)        my assessment of what actually happened, as I have described; and

c)       here giving some credit for your previous good character, as set out in the letters of support you have received but also as assessed by me at your trial,

I consider that a minimum period of imprisonment of 14 and a half years is called for.

[52]     I comment finally to those of Moliga’s family here in Court today, that – as I am sure you are well aware – no sentence for murder can cure the sadness and the suffering that a murder causes.  Nor can it bring any great sense of peace to those who grieve for the victim.  It is, rather, the response of our justice system which here

in these very tragic circumstances – as in all areas – tries to do the best it can in dealing with the complexities of human nature and human behaviour.

[53]     Mr Tinoa’i, please stand so that I may formally sentence you.

[54]     Emani Tinoa’i, you have been found guilty of the murder of Moliga Tinoa’i. I sentence you to life imprisonment and order that you serve a minimum term of imprisonment of 14 and a half years.

[55]     Mr Tinoa’i, you may stand down.

“Clifford J”

Solicitors:   The Crown Solicitor, Wellington for the Crown ([email protected]) I M Antunovic, P O Box 54-202, Porirua 5247 for the accused

([email protected])