R v Uhrle

[2013] NZHC 922

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-4765 [2013] NZHC 922

THE QUEEN

v

CECILIA VICTORIA UHRLE FAAMANU IAN FESULUAI UNALOTO KIPULOTU TONGIA ESAU VAILAGILALA

Hearing:         30 April 2013

Appearances: B D Tantrum and E McCaughan for Crown

G N E Bradford and K W Barron-Afeaki for Uhrle

B L Sellars and K H Maxwell for Fesuluai R J E Brown and R P Chambers for Tongia J Scott and J T Edgar for Vailagilala

Judgment:      30 April 2013

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

[email protected] and  [email protected]

Copy to:

G N E Bradford, PO Box 2274, Shortland Street, Auckland 1140  [email protected]
K W Barron-Afeaki, PO Box 106726, Auckland 1143   [email protected]
B L Sellars, PO Box 2674, Shortland Street, Auckland  [email protected]

K H Maxwell, PO Box 7140, Wellesley Street, Auckland 1140  [email protected]

R J E Brown and R P Chambers, PO Box 941, Shortland Street, Auckland 1140  [email protected] and [email protected]  vulcan[email protected]z

Public Defence Service, CX 10075, Auckland  [email protected]  john[email protected]z

R V UHRLE HC AK CRI-2012-004-4765 [30 April 2013]

[1]       Be seated thank you.  Cecilia Uhrle, Faamanu Fesuluai, Unaloto Tongia and Esau Vailagilala, the jury before whom  you were tried found  you guilty of the murder of John Li’a.  On 8 March I convicted you and gave you a warning of the consequences of any further serious offending.  I now have to sentence all of you for the crime of murder.

[2]      The offending took place in the early morning of 14 October 2011.   The events leading up to the crime included a celebration of your birthday, Ms Uhrle, at your home at 27 Revel Avenue, Mt Roskill.   Mr Li’a and his sister Millie were present, together with all of you accused.

[3]      There was evidence of various arguments that took place during the evening, as a result of which it appears that you, Ms Uhrle became angry with Millie Li’a and at one stage punched her in the face.  After that Millie Li’a left the address, together with her brother John and Mr Vailagilala and his then girlfriend Brenda Mikaele, who was your niece, Ms Uhrle.  The four younger people ended up outside the shops at Glass Road where Mr Vailagilala broke a number of windows while the others watched.   It appears that Mr Li’a at that stage climbed into one of the buildings through the broken window, setting off the burglar alarm.

[4]      Some time after that, Ms Uhrle came across Mr Li’a and his sister and invited them back to 27 Revel Avenue.   Once there, Ms Uhrle apologised to Millie for assaulting her, but John became upset when he learnt what had happened.  There was a further argument and as a result of that John and Millie decided to leave.  As they left, Mr Li’a pulled out a neighbour’s letterbox from the ground and used that to smash the rear windscreen of your car, Ms Uhrle.  He then proceeded to throw the letterbox at the front door, shattering one of the glass panes in that door.   Shortly after that, you Ms Uhrle left the address in your car with your daughter Lillian.  You were evidently looking for Mr Li’a.

[5]      You found him at the intersection of Nash Road and McGregor Street.  There was a fight of some sort at that point between you Ms Uhrle and Mr Li’a.  Your daughter Lillian intervened and told you to leave.  You got into your car and went back to 27 Revel Road, leaving Lillian behind with John and Millie Li’a.  There was

evidence that you made threats to Millie saying that you were going to get her, as you left.  Millie Li’a used her cell phone to text John Li’a’s girlfriend asking her to come and pick them up.  John and Millie began walking down Nash Road towards Richardson Road while you, Ms Uhrle, drove back to the house which was only a short distance away. When you arrived, it appears that Mr Tongia was there.

[6]      All four of you then drove back down to Nash Road in your car, Ms Uhrle. The offenders, and it is unclear which, had managed to arm themselves with a number of weapons.  I accept the Crown’s forensic evidence that there were at least four such weapons used in the attack on Mr Li’a, because the post mortem examination of him showed wounds made by a straight-edged blade,  a serrated blade, an instrument of some king capable of creating a circular puncture mark, and an instrument capable of creating a rectangular puncture mark.  You soon arrived at Nash Road near its northern end where you had evidently seen Mr Li’a and his sister, Millie.  All four of you got out of the vehicle.  It appears that you Ms Uhrle then threatened Millie Li’a whilst Mr Vailagilala ran towards her demanding to know where John was.   Noticing him further down the road he ran towards him and immediately tackled him to the ground.

[7]      All three of you male offenders then began to assault Mr Li’a.   Ms Uhrle

meanwhile watched what was evidently a very severe beating and attack.

[8]      Mr Taungakava,  who lived  near where the attack  was  taking place,  was alarmed by the severity of what he saw.  He took hold of a machete which he kept in his kitchen and came out, yelling at you to stop the attack.  I think he spoke initially in Tongan.   Ms Uhrle you evidently told Mr Taungakava not to worry and you explained what was going on by reference to the fact that Mr Li’a had smashed your window.  When Mr Taungakava said to you, Ms Uhrle, “don’t you feel sorry for him, he might die”, you said words to the effect, “that’s what happens when you mess with my family”.  It was when you observed his machete that you left. You drove off into Richardson Road, apparently looking for Millie Li’a.   Meanwhile the assault continued on John Li’a.   He was at one stage able to get away and ran into the driveway of a property at 1 Nash Road.  You three male offenders then followed him there and continued the attack.  Later Mr Li’a was dragged out onto the road near

where the fight had initially started.  Despite Mr Taungakava’s ongoing efforts to get

you to stop, you continued.

[9]      Mr Taungakava’s description of the assault was more detailed than that of other witnesses and he described Mr Li’a as having been “rag dolled”, held upside down  and  smashed  into  the  ground,  as  well  as  an  ongoing  assault  by  kicking. Mr Hunter, a friend of Mr Taungakava’s who was present on the evening, saw all three of you punching Mr Li’a in the head and kicking him over his body, stomach, chest, arms and head.  However, none of the eye-witnesses described seeing the use of weapons.

[10]     When the attack was over you returned to 27 Revel Avenue.  Ms Uhrle had, I think, already arrived when the three of you male offenders got there.  Weapons were not  found  at  the  scene  and  neither  was  there  direct  evidence  linking  potential weapons that were found at 27 Revel Avenue, and in the case of one knife, under a hedge in the walkway connecting Revel Avenue and McGregor Street,  with the attack.  However, there was clear evidence connecting you to the crime. And in your statements to the police you all admitted being present and having fought with Mr Li’a.  None of you admitted to the use of weapons or even seeing weapons there, except for you, Mr Tongia, who stated that you had seen Mr Fesuluai stab Mr Li’a once with a knife.

[11]     The Crown’s evidence established that Mr Li’a died by bleeding to death as the result of the various stab wounds which he sustained.   According to the pathologist who the Crown called, Dr Garavan, three of the eight wounds that were inflicted on Mr Li’a could have been fatal and at least two different weapons would have been used to inflict those fatal wounds.   I am satisfied that this was a very savage attack, committed at close quarters and that all three of you men must have been aware at the time that weapons were being used and those weapons included those that caused the fatal injuries. And apart from the weapons that caused the fatal injuries, other weapons were also involved as I have already mentioned. And this, of course, was in addition to the punches and kicks to which Mr Li’a was subjected, both standing and it seems clear, after he had fallen to the ground.

[12]     He was essentially overwhelmed by the combination of greater numbers and weapons and I do not consider that it is realistic to distinguish among any of you three male offenders as to your involvement in the circumstances which led to his death.

[13]     Ms Uhrle, you are in a different category and I should record here, that I am satisfied that you left at a comparatively early stage and it is not possible for me to be satisfied beyond a reasonable doubt that you would have been present when any of the fatal injuries were suffered by Mr Li’a.  However, the attack was under way before you left and you did nothing to try to bring it to an end despite having, as you must have had, a good sense of where it might end.  As with your three co-accused the jury has convicted you of murder which means that they must have been satisfied that you acted with the necessary intent to be so convicted.  I am satisfied that you must have been aware that the others were armed and the jury must have been satisfied about that and also that you had driven the others to the scene for the purpose of carrying out a most serious assault, of doing serious violence to Mr Li’a and knowing that his murder might be the consequence.  In your case I accept the Crown’s  submission  that  it  is  likely  the  jury  would  have  found  you  guilty  by applying s 66(2) of the Crimes Act – that is to say, they must have thought that you had formed the common intention with another person or other people, to carry out this serious assault on Mr Li’a in circumstances where murder was known to be a probable consequence of carrying out that purpose.

[14]     So those then are the circumstances of the crime of which you have all been convicted.

[15]     I have read the pre-sentence reports that have been prepared in respect of you all.  There is nothing in your past history which explains why you acted in the way you did on the night in question.  There is nothing in the pre-sentence reports either that would justify the Court from departing from the normal sentencing approach for this kind of crime.   That requires that the sentence imposed be one of life imprisonment unless, given the circumstances of the offence or the offender, such a sentence would be manifestly unjust.  There is nothing in the circumstances of this

offending or in your own circumstances that would make such a sentence manifestly unjust. And that is the sentence that I will impose.

[16]     I  want  at  this  point  to  acknowledge  here  today  the  close  members  of Mr Li’a’s  family  and  to  thank  then  for  the  dignified  way  in  which  they  have addressed the Court and explained how Mr Li’a’s death has affected them.  And I have heard from Mrs Akesa Li’a who is John’s mother, Laumua Li’a, John’s father, Solonaima Li’a his sister, and Millie Li’a, his younger sister.  Geoff Li’a his brother was also present in support of the other family members.

[17]     You have all spoken movingly of your grief and of the terrible gap that has been left in your lives as a consequence of this terrible crime.  What you have said underlines the seriousness of the harm that this offending has caused.  Mr Li’a was a young man with various talents, who has been thoughtlessly killed and taken from his family at an early age.

[18]     Turning to the offenders again, you have heard counsel address me here today and I expect you will be aware that I have received written submissions that have been filed both from the Crown and from counsel who have been acting for you.  I am just going to refer in a very brief way to what those submissions have been.

[19]     Mr Tantrum, for the Crown, has identified as aggravating factors in the case of this offending, the use of weapons and the serious harm that resulted from your offending.  He says that there are no mitigating factors.  Apart from Mr Vailagilala, who has absolutely no record of previous offending, you each have historical convictions for crimes of violence, but the Crown concedes that those convictions are either minor or so historic that in either case they should not influence the outcome  of  this  sentencing.     Mr  Tantrum  also  properly  acknowledges  that Mr Vailagilala was only 19 and a half years old at the time of the offending and Mr Tongia was 19 years and 9 months.   Mr Tantrum nevertheless submitted that neither you Mr Vailagilala nor you Mr Tongia was particularly young at the time of the offending and he noted that you had both fully participated in the attack.

[20]     Mr Tantrum submitted  that you Ms Uhrle should be viewed as the instigator of the murder on the basis that you had the primary grievance against Mr Li’a as a result of the events that had taken place at your home that night, and that after your initial scuffle with him at the intersection of Nash Road and McGregor Street you had returned to your house and gathered the other three together, driving them back to the scene where the murder was committed.   Although not participating in the fatal  assault  yourself,  you  had  done  nothing  to  stop  it  and  in  Mr  Tantrum’s submission should be regarded as equally culpable.

[21]     Mr Tantrum submitted that the Court should impose a minimum term of imprisonment of at least 17 years on each of you applying s 104 of the Sentencing Act 2002, and relying in particular on s 104(1)(e) of that Act.  That provides that the Court must make an order imposing a minimum term of imprisonment of at  least 17 years if the murder was “committed with a high level of brutality, cruelty, depravity or callousness”.   Short of that, Mr Tantrum argued for a sentence of a minimum period of at least 15 years under another section of the Act, s 103.  He relied on the fact that Mr Li’a had been attacked by the three of you carrying weapons and that you had gone there for the deliberate purpose of attacking him and in an assault that had lasted for some time.

[22]     Now, on your behalf Ms Uhrle, Mr Bradford has submitted that there is no justification in your case for departing from the usual minimum ten year non-parole period which applies under s 103 of the Sentencing Act.  He points out that since the Crown relied on both limbs of s 66 of the Crimes Act, it cannot be clear now which provision the jury relied on to find you guilty.  I have earlier expressed my view that it is likely they would have convicted you by applying s 66(2) of the Act and that means nevertheless that you had murderous intent because the common purpose on which the Crown relied was an intent to do serious violence to Mr Li’a and murder was a probable outcome of the common purpose on which you embarked.  It follows that I am not able to accept Mr Bradford’s submission that you should be treated in a very different way from your co-accused on the basis that your liability would have been established under s 66(2) of the Act.

[23]     However, Mr Bradford made it plain that  his submission was that this was not a case where a minimum term of 17 years would be appropriate in your case because you had left the scene before the fatal injuries were inflicted and the real severity of the attack would have been apparent.  He submitted that a minimum term of ten years would be sufficient and that to increase the term beyond that point would be manifestly excessive.   He noted in this respect, as has been said in a number of cases, that any murder involves violence, brutality and cruelty.  He also invited the Court to take into account the fact that  you are the mother of four children with the youngest still being breastfed at the time of the offending and he has referred me to letters in which those who know you have spoken well of you.

[24]     Now Mr Fesuluai, Ms Maxwell has addressed me on your behalf as well as providing a detailed written submission.  She submitted that the background to the offending showed a gradual escalation in tension throughout the evening but noted that you had not been involved in any of those events earlier events prior to the fatal assault  on  Mr  Li’a.    She  identified  the  same  aggravating  factors  as  had  been identified by Mr Tantrum, namely the use of a weapons and the extent of the loss caused by the offending and she accepted that there were no mitigating factors.  She also invited me to take into account the conduct of Mr Li’a on the night in question.

[25]     After reviewing a number of cases in which sentences have been imposed in cases of this kind, as well as the cases relied on by the Crown, she submitted that a minimum  term  in  the order  of  12  years’ imprisonment  might  be  considered  as justified.  In arriving at that submission she submitted that the use of a weapon and the fact that this was a group assault had to be balanced against the speed with which the events had unfolded.   She submitted that this was not a case where a 17 year minimum term could be justified, arguing that the offending was not particularly brutal or callous, that there was no further offence contemplated at the time of the assault and emphasising that this was not a case where the victim had no prior association with the offenders and the attack was completely unprovoked.   In the course of her submission she invited the Court to treat Mr Taungakava’s evidence with extreme caution as to the length and extent of the assault.

[26]     I accept her submission, that the assault was probably of less duration than he described it, and I note that Ms Scott made a similar submission on behalf of Mr Vailagilala.

[27]     Now, Mr Tongia, I had a lengthy written submission on your behalf from Mr Brown.  He too rejected the Crown’s contention for a minimum term of 17 years or more.  He submitted that the Crown was in error in failing to distinguish between the relative culpability of the offenders and suggested that the Crown was arguing that all had been held liable under s 66(2) having formed the common intention to do serious violence to Mr Li’a.  That is not as I understand the Crown’s case.  However, Mr Brown argued that it was in fact unclear as to what actions had been taken by any of the offenders during the fight, and that in the circumstances I should not conclude that your conduct was such as should be considered particularly brutal, cruel or callous.  He emphasised that in your case, there was no evidence that you had been in possession of a weapon, including and especially a knife and that all the Crown could establish beyond a reasonable doubt was that you had kicked the victim in the region of the head.

[28]     Mr Brown referred in his written submissions to a number of other cases where sentences had been imposed involving minimum terms of imprisonment of ten to 13 years and he argued that a minimum term of ten years (which is the normal rule which applies) would be appropriate in your case having regard to the state of the evidence about your involvement, the fact that you were a comparatively young man at the time of the offending and had shown both remorse and shame when discussing the circumstances of the offending.

[29]     I have also heard from Ms Scott on your behalf Mr Vailagilala.  She rejected any suggestion that you had been involved in a common intention to assault and/or kill Mr Li’a and submitted that the forensic evidence called from Dr Hampson was consistent with somebody other than you being the person who stabbed Mr Li’a. She acknowledged that the crime was violent one and had involved the use of a weapon, although she pointed out that you had consistently denied knowledge of any such weapon and claimed that you had never had one in your possession.

[30]     She  suggested  that  you  had  a  limited  involvement  in  the  assault  and submitted that you had not been responsible for inflicting any of the potentially fatal wounds.  She reminded me that you were only 19 when the offending occurred, that you had no previous criminal history and you are apparently remorseful for what occurred on that night.

[31]     As did other counsel, she referred to a number of other cases and their facts. She submitted that a minimum term of imprisonment of ten years should be imposed and that on an objective assessment of the circumstances surrounding the offending a minimum period of a greater length would be manifestly unjust.  On the other hand, your age, remorse, prospects for rehabilitation and previous good behaviour would all justify imposition of a minimum period of no more than ten years.

[32]     Having considered all these submissions I have decided that I will not impose a minimum term of imprisonment of 17 years or more in this case.  The crime was a serious one but I do not consider that the level of brutality, cruelty and callousness here is sufficient to justify sentencing under s 104(1) of the Act.   I have in mind

cases such as R v Slade and Hamilton[1] where it was specifically acknowledged and

said that there is no such thing as a murder which is not in some sense brutal, cruel, depraved or callous.  What the Act requires is there be a high level of the requisite conduct.

[1] R v Slade and Hamilton [2005] 2 NZLR 526, (2005) 21 CRNZ 600.

[33]     I am not satisfied, however, that a minimum term of imprisonment of only ten years would be an appropriate starting point before taking into account any mitigating considerations.  The fact of the matter is that this was a very serious crime and there was an element of premeditation.   The offenders essentially went out looking for Mr Li’a for the purpose of attacking him, and that is what happened.  So far  as you were concerned Mr Vailagilala,  you were evidently the first to commence the assault, which was the fatal one.  Whatever the circumstances were when you got into the car, by the time you left it, it seems clear what you had in mind.

[34]     I am also conscious that Mr Li’a’s behaviour earlier in the evening, his action in smashing windows of the car and the front door at 27 Revel Avenue would have

justifiably angered Ms Uhrle and her partner, Mr Fesuluai.  This is, of course, is not to justify to any extent the events that followed, but to my mind it is an aspect of this case that needs to be taken into account.

[35]     The crime involved the use of weapons.   I have said near the outset that I accepted the Crown’s forensic evidence that at least four weapons were used.  While I accept that Mr Taungakava’s evidence, as submitted by Ms Maxwell may have exaggerated the level of viciousness on display, and the length of time over which the attack took place, nevertheless it was a nasty, murderous assault and it was three on to one.  It continued through and beyond a stage where Mr Li’a would have been totally unable to defend himself having been overwhelmed by serious force used against him.

[36]     I would characterise the offending as very serious and in my view it justifies imposition of a minimum term of imprisonment of 15  years before taking into account any mitigating features.

[37]     Insofar as the three male offenders are concerned it is difficult on the facts to distinguish among you in terms of culpability.   This was not a case where it was possible for the Crown to identify or even suggest that one of you had been in any sense a ring-leader of the physical attack.  But that does not have the consequence that no more than a minimum term of 10 years can be imposed on you.

[38]     It  is  clear  that  what  was  to  be  the  fatal  assault  was  commenced  by Mr Vailagilala when he tackled Mr Li’a to the ground, and after that you Mr Fesuluai and you Mr Tongia, joined in.  Given my acceptance of the Crown’s evidence at the trial that at least four weapons were used in the assault, I think it likely in the circumstances that each of you must have used one of the weapons.  I do not accept Ms Scott’s submission that Dr Hampson’s evidence at the trial made it clear that Mr Vailagilala could not have used a knife.  Whether or not that is the case however, and which of you were armed or to what extent, I do not consider significant.  The events would as they quickly unfolded not have allowed one person to wield all the weapons that were used.  Given the events that were taking place at close quarters, each of you must have been aware that one or more of you was using a weapon, yet

jointly continued in the assault.  The fact that all of you participated in the attack, by any means, would have contributed to Mr Li’a’s inability to defend  himself, even if one of you had not been armed.   Consequently, in assessing the gravity of the offending, I would not distinguish among the three male offenders.

[39]     In the case of Mr Vailagilala and Mr Tongia, I accept that I should take into account your age at the time of the offending and I note again that the Crown does not suggest that there is anything in your history that would warrant increasing the minimum term to be ordered.   In each case I consider that a period of 18 months would be sufficient to take into account the mitigating circumstance of age  and remorse.    I  see  no  other  mitigating  circumstances  which  should  influence  the outcome here and consequently, the minimum term of imprisonment that I will order in the caase of Mr Vailagilala and Mr Tongia is 13 and a half years.

[40]     Mr Fesuluai you were unable to refer to any mitigating circumstances, so the

15 year minimum term will apply in your case.

[41]     Ms Uhrle is in a separate category.  As I said, in my view it is likely that the jury held you liable under s 66(2) of the Crimes Act.  You had the necessary intent to be convicted of murder, but you left before the assault entered its most violent phase. You were, nevertheless, responsible for taking the other accused to where you knew that Mr Li’a would be and I think you must have known that the others were armed for the purposes of the assault.  On the evidence, you left because Mr Taungakava brandished a machete at you and you did nothing to bring to an end a situation that you had brought about.  Regrettably, I do not think that this sentence can properly be reduced to take into account the needs of your family, including your young child. This offending is too serious for that.  I assess its seriousness in your case as only slightly less than that of the other accused and in my view the appropriate sentence to impose will include a minimum term of 13 years.

[42]     The accused should now stand please.

[43]     Having been convicted of murdering John Li’a you are now each of you sentenced to a term of life imprisonment.  I direct that the following minimum terms of imprisonment are to be served:

(a)       In the case of Ms Uhrle, a minimum term of 13 years.

(b)      In the case of Mr Fesuluai, a minimum term of 15 years.

(c)       In the case of Mr Tongia and Mr Vailagilala, a minimum of 13 and a half years in each case.

[44]     It is now necessary also that I give you a warning that is known as a three strikes warning.   Having committed the crime of murder you are now subject to certain consequences should you commit another qualifying conviction under the relevant provisions of the Sentencing Act. You will receive a written notice outlining these consequences which lists the qualifying offences.  If you are convicted of any qualifying offences other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release.

[45]     If you were convicted of a murder committed after this warning, then the law would require that you be sentenced to life imprisonment and that that sentence be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.