R v Vaioleti - [2013] NZHC 3358

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, Auckland
M 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vaioleti

Details

AGLC: R v Vaioleti [2013] NZHC 3358
Case: [2013] NZHC 3358
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of R v Vaioleti involved the defendant, Sione Vaioleti, who was convicted of attempted murder after shooting his wife with a pistol. The case was heard in the High Court of New Zealand. Vaioleti, who had a history of violence and criminal activity, had brought the firearm into the bedroom with the intent to harm his wife. Although he claimed the shooting was accidental, the jury found him guilty of attempted murder. The court had to determine the appropriate sentence for this serious offence.

The legal issues the court had to decide included the appropriate starting point for sentencing, the consideration of mitigating and aggravating factors, and whether to impose a minimum term of imprisonment. The court had to balance the purposes and principles of the Sentencing Act 2002, such as accountability, denunciation, deterrence, and community protection, against the personal circumstances of the offender.

The court, in its reasoning, considered the severity of the offence, the vulnerable state of the victim, and the lack of remorse shown by Vaioleti. It also took into account his age, health, and the fact that he had displayed limited insight into his actions. The court found that the appropriate starting point for sentencing was 11 years imprisonment, but reduced it to 10½ years to account for Vaioleti's age and health. The court decided not to impose a minimum term of imprisonment, given the moderate risk of re-offending and the likelihood of Vaioleti being deported.

The final orders of the court were that Vaioleti be sentenced to 10½ years imprisonment. The antique pistol used in the crime was recommended to be placed in a museum, while the seized ammunition was ordered to be destroyed.

Orders