R v Vaioleti
[2013] NZHC 3358
•13 December 2013
IN THE HIGH COURT OF NEW ZEALAND REGISTRY
CRI-2013-092-912 [2013] NZHC 3358
THE QUEEN
v
SIONE MAFI VAIOLETI
Hearing: 13 December 2013
Appearances: N E Walker and M K Regan for the Crown
M N Pecotic for the Accused
Sentence: 13 December 2013
SENTENCING NOTES OF PRIESTLEY J
Counsel/Solicitors:
N E Walker, Crown Solicitors, Auckland
M K Regan, Crown Solicitors, AucklandM Pecotic, Barrister, Auckland
R v VAIOLETI [2013] NZHC 3358 [13 December 2013]
Introduction
[1] Sione Vaioleti, on 21 November, at the conclusion of your trial which spanned four weeks, the jury found you guilty of attempted murder. My job today is to impose an appropriate sentence of imprisonment on you. As you know, attempted murder carries a maximum penalty of 14 years imprisonment.
[2] You and your counsel indicated to the Crown, at an early stage, that you would have been prepared to plead guilty to a lesser charge – probably one under s 189 of the Crimes Act 1961. In the event, and out of an abundance of caution, my summing up to the jury gave them directions on the included charge of s 189(2) – injuring a person with reckless disregard for the safety of others.
[3] However, the jury convicted you of attempted murder and thus did not need to consider the included charge. As trial Judge I am totally satisfied that the jury’s approach and verdict were correct. The evidence against you was a classic example of attempted murder. Your words and actions show that at the critical time you intended to kill your wife. The central issue at your trial was whether, when you discharged a firearm close to your victim’s face, you did so with the intention to kill.
[4] You gave evidence at your trial. Your story was that you brought a pistol into the bedroom where your wife was shot; that you had no idea that it was loaded; and that your sole purpose of bringing the pistol into the bedroom was to teach your wife a lesson because you considered that, by criticising you for your evening’s drinking, she was being disrespectful of you and displaying insufficient gratitude for all the years you had helped her with her ill health. The pistol, so you said, was accidentally discharged during the course of her trying to wrest it from you. Clearly the jury disbelieved your evidence. In my view, having heard all the evidence, they were totally justified in doing so.
Facts
[5] I have already outlined some of the facts. The pistol shot was discharged about 1.30 am early in the morning of 16 June 2012. You had been out drinking with friends. You came home. An argument ensued between you and your wife (I have
called her your wife even though you and she were divorced many years ago in Tonga) over the whereabouts of a stash of money. You asked your victim to count the money. You subsequently told her that if she did not tell you where the money was you would shoot her and kill her. You retrieved, from the lounge, a 1910 model Browning pistol of 7.65mm calibre. The pistol, at the time, contained two bullets. There is evidence you hit your victim with the pistol. You again threatened to kill her or shoot her. You then shot the victim at close range. The bullet penetrated her upper jaw (an alternative theory was there was an entry wound in her upper lip), caused massive destruction of the teeth, the alveolar process, and hard palate, travelled on through her neck, missing by a fraction the carotid sheath, clipped her vertebra and remained inside her body. The bullet had to be extracted from the back of her neck by surgery. I decline Ms Walker’s invitation to make a finding the pistol was inside your victim’s mouth when you fired it. I think it probably was but I do not consider whether it was inside her mouth or close to her lip makes any difference to your guilt or the proper sentence to impose on you.
[6] By its verdict the jury clearly accepted the outline of this narrative and particularly accepted that you used words and conducted yourself in a way that you intended to kill her. But for 2mm and the grace of God you would indeed have killed her and would have been charged and rightly convicted of murder.
[7] All that sets these facts apart from the worst possible case of attempted murder is that your actions were relatively spontaneous, there was limited premeditation, and your judgment was clouded by alcohol. Even on your own disbelieved evidence there was a domestic violence background. You hit your victim. You intended to teach her a lesson because you found her words disagreeable. But nonetheless you had a firearm in your house which clearly you loaded. There was a considerable quantity of compatible ammunition. Significantly a pack of ammunition was found on the bedroom floor. Clearly you took ammunition into the bedroom with you. The fact that you had the pistol illegally must be an aggravating factor. The facts of your case are a classic example of the dangers of holding firearms and ammunition in a home. How and why you acquired this pistol (your evidence was that you got it on the black market), will remain a mystery because you have not been forthcoming in telling us. You told your counsel
you had the pistol to protect you and your family. I take that with a large grain of salt.
Victim impact statement
[8] I turn now to the victim impact statement. On some of the details of your offending there were, understandably given the nature of her injuries and the shock, occasional elements of confusion with your victim’s evidence. The victim impact statement has been read out in court. Your victim suffered significant injuries and needed extensive surgery and rehabilitation. She was in hospital for a month. Your victim was already a sick woman, being a diabetic requiring renal dialysis every second day. Mrs Fifita’s diet has changed. The bone damage to her jaw was such she cannot have false teeth fitted. The victim talks of having flashbacks of what was a terrifying experience for her. She also suffers from significant mood swings and depression. There is also the financial strain resulting from having to move from the address.
Personal circumstances and previous convictions
[9] You, Mr Vaioleti, are aged 61. You have a modest criminal history of violence. There is a conviction of assaulting a female in April 2008. There is a more serious assault conviction in 1990 which led to imposition of a prison sentence and your subsequent deportation from New Zealand for life. You and your family effectively lived apart for over 16 years. Somehow you managed to re-enter New Zealand in December 2006 on a Fijian passport.
[10] You accept responsibility for injuring your victim but still maintain the discharge of the pistol was accidental. Clearly your alcohol consumption was a contributing factor. The presentence report notes that you have displayed no insight or remorse. But I accept you are remorseful about your wife’s injuries and the effect of your offending on your family. The risk of your re-offending is assessed as being moderate. You have six adult sons who all have, to varying degrees, criminal histories. Certainly for some five or six years before the offending you and your ex- wife lived under the same roof and you were her primary caregiver, being
responsible for taking her to medical appointments, to hospital for dialysis, and assisting with the shopping.
Purposes and principles
[11] I need not dwell at length on the relevant purposes and principles of the Sentencing Act 2002. You must be held accountable for the harm done to your victim. There must be elements of denunciation and deterrence. The gravity of the offending and its seriousness within the range of attempted murder convictions must be considered. Your rehabilitation and re-integration are relevant although deportation seems inevitable. Doubtless on legal advice, you have remained in custody on remand for 18 months which will count towards your parole eligibility.
Aggravating and mitigating features
[12] Your counsel, who let me say has done an excellent job for you throughout Mr Vaioleti, has pointed to a number of factors which are a mix of potentially mitigating factors and personal factors. These include co-operation with police; requesting an ambulance; remorse for at least your responsibility for the injuries rather than for attempted murder; your age and health; your co-operation during the trial; your separation from your biological family; and the fact that on deportation you will not be able to return.
[13] Although there could be worse cases of attempted murder I cannot give you credit for that. You were drunk at the time. Your victim was vulnerable. Before you fired the shot you attacked your victim’s head. You used a particularly lethal weapon. Your victim was a vulnerable and frail woman, in bed at the time, and with limited mobility as a result of her diabetes and renal failure. Because you had been her caregiver there was an abuse of trust. This abuse of trust is really co-existent with her vulnerability.
[14] Your intoxication cannot properly be regarded as a mitigating factor although I accept your judgment was clouded. Your initial reaction was to make a clean breast of matters. Within half an hour you had wended your way to a nearby police station and admitted shooting your wife. Later that morning, as interviews proceeded, you
falsely attempted to place distance between yourself and the pistol. You also assisted during the trial by persuading your son to give evidence when he was on the verge of being declared a hostile witness.
Submissions
[15] Counsel’s submissions refer to a number of authorities which I shall deal with briefly in the next section of my notes. In essence the Crown submits that I should adopt a start point of 10-12 years imprisonment. Ms Walker further submits that there are no mitigating factors entitling you to a discount and that (although not submitted with great force) I should contemplate a minimum term of imprisonment under s 86(2).
[16] Ms Pecotic for her part suggests a start point of between six and seven years imprisonment. She submits the facts fit inside the middle of Taueki Band 2. She relies on older authorities. She opposes imposition of a minimum term.
Sentence
[17] R v Taueki1 suggests at [9] the Court of Appeal guidelines for grievous bodily harm offending can be applied “by analogy” to other offences of serious violence with appropriate adaptation to reflect the seriousness of the offence and the maximum penalty for it. Because there are no tariff cases for attempted murder (there are far too many available factual scenarios) some sentencing judges have looked to Taueki as a “cross-check” to ensure that an attempted murder start point is within an appropriate range.2 There is some merit in that and Ms Walker adopts such an approach in her submissions. Nor does Ms Pecotic oppose it. However, in the recent attempted murder appeal of Marsters v R3 the Court of Appeal cautioned at [18] against the artificiality of focusing on shared features in attempted murder cases and ignoring all the circumstances when fixing a start point. One must guard against a detailed comparison. One must also be alert to the limited assistance of authorities which predate the passage of the Sentencing Act and, with regard to serious violence
offences, predate Taueki.
1 R v Taueki [2005] 3 NZLR 372 (CA).
2 See for example R v Bolt HC Rotorua CRI-2009-007-1497, 28 October 2010 at [31] per Wylie J.
3 Marsters v R [2011] NZCA 505.
[18] The Court of Appeal further in Marsters at [17] seems to have approved using Taueki as a cross-check. A similar approach was adopted by the Court of Appeal in Ikamanu v R.4
[19] Marsters v R5 led to a start point of 11 years imprisonment being upheld. The appellant there had been convicted of attempted murder when, in a road-rage situation, the appellant was involved in a tussle, hit the victim with a pistol he carried in his pocket, and fired off two shots one of which (as here) penetrated the victim’s face. There was a sustained assault as well as the shot. The victim was fortunate to avoid long term injury.
[20] Counsel also referred to R v O’Brien6 where, against a backdrop to an altercation between the appellant and the victim’s partner, the victim was enticed to a house, shot in the stomach and was critically injured, being saved only by surgical intervention. There was a start point of 10-11 years imprisonment.
[21] Ms Pecotic cited R v Rerekura;7 R v Tuuta8 (a sustained knife attack on a female victim who suffered from 27 knife wounds where an end sentence of 10 years imprisonment was imposed following a guilty plea); R v Garlick9 (where a 5½ year start point for attempted murder was imposed where a rifle was pointed at the complainant’s head but the shot was deflected by a third party and the complainant was uninjured). Of these authorities I struggle to see the relevance of Rerekura. There the lead charge was manslaughter (murder reduced because of a successful provocation defence) and the attempted murder (on another victim) related to a rifle
shot which totally missed. The facts of this case a quarter of a century ago have little relevance.
[22] Another High Court authority of some use is R v JRF.10 The victim there was
the prisoner’s former partner. Multiple stab wounds were inflicted on her with a
knife. There was, it was said, a limited degree of provocation which reduced an 11-
4 Ikamanu v R [2013] NZCA 510 at [61]
5 Ibid.
6 R v O’Brien HC Christchurch T0307546/02, 17 October 2003.
7 R v Rerekura CA 361/87, 21 June 1988.
8 R v Tuuta HC Invercargill T001401, 27 July 2000.
9 R v Garlick HC Nelson CRI-2008-042-1111, 13 March 2009.
10 R v JRF HC Dunedin CRI-2011-012-2837, 30 September 2011.
12 year start point to 10½ years. That case too is distinguishable given the prolonged nature of the attack.
[23] Applying the Taueki11 cross-check discipline, Band 3 would normally attract
9-14 years imprisonment. By definition it involves serious offending. A Band 3 example given by the Court of Appeal was a domestic attack, in a premeditated home invasion involving a weapon brought to the scene and injuries of lasting effect. A further example, which will probably sit at the top of Band 2 of Taueki under the heading “Premeditated domestic assault”, involves a domestic attack on a partner inflicting serious and lasting injury. Use of a weapon would bring it to the high end of Band 2 which the Court of Appeal stipulated would attract a 5-10 year term of imprisonment.
[24] As I said earlier, minute comparisons do not lead to an automatic result Mr Vaioleti. This was a serious attack. It involved a firearm and a lethal weapon. The pistol was shot at very close range. Your victim was in bed and physically weak. You, on your own admission, brought the pistol into the bedroom to modify what you thought was unfair criticism – an attitude which displays an unacceptable degree of patriarchal ownership of females incompatible with the norms of New Zealand society. You were drunk. The bullet caused lasting damage which has had a serious effect on the life of a vulnerable and sick woman. Premeditation was limited. There were related assaults on your victim’s head.
[25] In my judgment the Crown submission of a start point of between 10 and 12 years imprisonment is correct. There were no mitigating factors of any consequence although I am, in the circumstances, prepared to make a small allowance for your age, your health, your limited remorse, and in-trial help.
[26] So the start point which I consider to be appropriate, weighing all the factors
I have mentioned, and particularly having regard to your overall culpability, is one of
11 years imprisonment. I am prepared to reduce that by 6 months to 10½ years imprisonment to reflect your age and health. I have not uplifted my start point
11 Above n 1.
because there is no need. The previous convictions to which I have referred do not justify any uplift.
[27] A minimum term of imprisonment under s 86(2) has to be considered. Accountability, denunciation, deterrence, and community protection are the factors which have to be weighed. Attempted murder is not a prevalent crime. This weakens denunciation and deterrence. I do not consider the interests of your victim necessarily point to imposing a minimum term. Nor, given the moderate risk of your re-offending and your almost certain deportation, does community protection weigh high. Whether or not, in terms of the Parole Act you will get parole when you have served the statutory one third of your sentence (3½ years which is 2 years away) will be a matter for the Parole Board. I am thus not minded to impose a minimum term.
[28] Stand up please
[29] The sentence I impose on you is one of 10½ years imprisonment.
Give first three strike warning.
[30] Judge gives a Stage 1 in 3 strike warning.
The pistol
[31] The pistol is antique. It is probably close to a century old. Although this model of Browning pistol was fairly common during and after World War I, this one is unusual because the butt is embossed with the logo of a well known Parisian fashion house, Louis Vuitton. Rather than order the destruction of the pistol I strongly recommend that it should be retained and placed in an appropriate museum.
[32] There is, however, at Ms Walker’s request, an order for the destruction of the seized ammunition.
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Priestley J
7