R v Vi

[2023] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CRI-2021-019-004506

[2023] NZHC 1118

THE KING

v

PETER VI

Hearing:

11 May 2023

Counsel:

KRL Guthrie for Crown

KW Burroughs and SF Gilbert for Defendant

Judgment:

11 May 2023

SENTENCING NOTES OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. KW Burroughs, Hamilton. SF Gilbert, Hamilton.

R v VI [2023] NZHC 1118 [11 May 2023]

Introduction

[1]    Peter Vi, you are for sentence for murdering Georgina Ngataki. I begin by acknowledging the presence of Ms Ngataki’s whānau. I record the obvious. No sentence can diminish your loss, recognise the value of Ms Ngataki’s life, or reflect the profound harm you have suffered because of the offending.

[2]I am required to explain the facts. I now do so.

Facts

[3]    Mr Vi, you and Ms Ngataki lived in separate units in a block of flats here in Hamilton.  You  both received support for alcohol addiction and other difficulties.  Ms Ngataki had suffered a brain aneurysm some years ago.

[4]    The two of you moved into the flats in 2018. You formed a friendship and later, a relationship. Ms Ngataki helped you, Mr Vi. For example, she acted as your agent in relation to your benefit. The money was paid into her bank account as you did not have one. Ms Ngataki would withdraw your money and give it to you.

[5]    Your relationship was punctuated by arguments and violence. More accurately, you were violent to Ms Ngataki, Mr Vi.

[6]    On 27 April 2021, you and she were drinking. An argument developed. You struck Ms Ngataki to the face with considerable force. The blow was sufficiently powerful to render her unconscious. She awoke with bruising, bleeding, and sore ribs. She was taken to hospital. She suffered bruising behind her ear, scalp, neck and chest, a broken nose, and concussion. Despite the severity of your assault, the relationship continued.

[7]    On 22 September 2021, another argument developed. You and Ms Ngataki had earlier returned to her flat. You were carrying a box of beer. The argument lasted for approximately 10 minutes. It was heard by neighbours downstairs. Indeed, it was also heard from another block of flats. The closer neighbours heard yelling, screaming, and banging.

[8]    Those in the flats further away could hear your voice. An occupant of those flats went to investigate. She saw you hunched over Ms Ngataki, striking her with both arms.  Your  blows  caused audible thuds.  Ms Ngataki was saying “don’t”.   You struck Ms Ngataki in this way at least four times.

[9]Police were called. It took a little time for them to find the right unit.

[10]   You meanwhile, Mr Vi, left Ms Ngataki’s flat at 2.36 that afternoon. Before doing so, you removed your shorts and put on a pair of tracksuit pants. You then went back to your own unit. There, you changed all of your clothing, including your footwear. You then returned to Ms Ngataki’s unit, from which you collected the rest of the beer.

[11]   Police entered her unit at 3.07 in the afternoon. She was unconscious. They noticed blood around her head, behind her, and on cushions on a nearby couch.

[12]   Ms Ngataki had suffered a severe head injury: a large, acute, subdural haematoma with what is described as a “significant mass effect”. A surgeon or surgeons operated to save Ms Ngataki’s life, but she died two days later. The cause of her death was blunt force trauma to her head. Ms Ngataki also had bruises on both arms and legs, on the front of her chest, and on her back.

[13]You were interviewed by Police before and after Ms Ngataki’s death:

(a)In your interview beforehand, you suggested she had caused the injuries to herself by banging her head against a table. You said she was well when you left, and you and she had not argued.

(b)In the interview after her death, you said you slapped Ms Ngataki with the back of your hand three or four times, but not with any force.

[14]   Later scientific testing revealed footprints in blood in the entrance way, in the laundry, and in the bathroom.

Plea

[15]   Your trial was to begin 6 March this year. You  sought a sentence indication 13 February  2023.    I  gave  you  one  22  February  2023.    You   pleaded  guilty    1 March 2023.

Minimum period

[16]   The sentence for murder is life imprisonment.1 At the sentence indication hearing, your lawyer abandoned a submission  you  should  not  be  sentenced  to  life imprisonment. He was right to do so.

[17]   The only issue then is the length of your minimum period of imprisonment. This may not be less than 10 years and must be the minimum term the Court considers necessary to hold you accountable; denounce the offending; deter you and others; and protect the community.2 With this in mind, I turn to aggravating features—things that make your offending more serious.

Aggravating factors

[18]   The Crown contends there are multiple aggravating factors. I agree, though I do not accept the Crown’s analysis in relation to two:

(a)The Crown says Ms Ngataki’s death is an aggravating factor. Her death, however, is an ingredient of the crime. Indeed, it is integral to murder.

(b)The Crown says Ms Ngataki was particularly vulnerable, because of her lesser size and earlier brain aneurysm. I accept Ms Ngataki was vulnerable for these reasons, but on the information before me, and I stress that, I do not consider they amount to particular vulnerability as the law treats that concept.3 I have not been given any more information about Ms Ngataki’s earlier brain aneurysm other than she

1      Crimes Act 1961, s 172 and Sentencing Act 2002, s 102.

2      Sentencing Act, ss 102–103.

3      Section 9(1)(g).

had one. Because of that I am not in a position to conclude that she was particularly vulnerable. That might have been different had I had more information.

[19]I come to the four aggravating factors I find established:

(a)First, the magnitude of your violence. You inflicted a sustained attack upon Ms Ngataki, including blows directed at her head.

(b)Second,  in   attacking   Ms   Ngataki,   you   breached   her   trust.   As I mentioned earlier, she helped you Mr Vi. She was entitled to look to you for protection, not harm. Your breach of trust is underscored by Ms Ngataki’s lesser size, and her brain aneurysm, the point I foreshadowed.

(c)Third, your behaviour after you had killed Ms Ngataki was cold-blooded, indeed, callous. You changed your clothing and returned to her unit only to collect your beer. I infer you walked in Ms Ngataki’s blood hence the footprints in the laundry, bathroom and entrance way.4 At no stage did you seek medical attention for Ms Ngataki or raise the alarm. In short, you allowed her to die. Your callousness extended to your Police interviews. You initially denied all violence. You then gave an account significantly downplaying that. In making these observations I have not overlooked your short letter in which you say you are very sorry for Ms Ngataki’s death. There is a saying that actions speak louder than words; I consider that apt in your circumstances.

(d)Fourth, as I described earlier, you seriously assaulted Ms Ngataki on 27 April 2021; that is, a little under five months before you murdered her.

[20]   This combination means your offending is more serious than those murder cases in which the presumptive 10-year minimum period applies. This is confirmed

4      Joint memorandum of counsel dated 4 May 2023.

by cases I have considered, which I shall record in a footnote to my remarks in writing.5

[21]   You have a criminal record, which is not in-extensive. You have been imprisoned repeatedly, including for violence. However, except for a recent conviction for resisting arrest, most of your convictions for violence occurred 13 years ago. I do not increase the minimum period for this reason. Instead, I treat your record as underscoring the significance of your earlier violence on Ms Ngataki.

[22]   Subject to mitigating factors, or things that make your offending less serious, which I now come to, I adopt a minimum period of 13 and a half years’ imprisonment.

Mitigating factors

[23]   As to mitigating factors, I begin by reminding myself that mitigating features in this context operate differently from offences other than murder: the level of discount is constrained by offence and penalty.6

[24]You pleaded guilty late, but your plea spared whānau the ordeal of a trial. It

also spared the cost of a trial. I deduct one year from the minimum period.

[25]   I now turn to your personal circumstances as discussed in your pre-sentence report, your cultural report, and in the one-page letter on behalf of the church. You are

58 and of Tongan descent. Your upbringing in Tonga  appears to have been unremarkable save in relation to violence. You say you were beaten by your mother and others, and that you suffered a severe beating that resulted in a head injury and hospitalisation. You came to New Zealand in 1986 on a holiday. You were then 22. You decided to stay. You say your family in Tonga was happy you did. Alcohol appears to have been a problem for you ever since. You deny being alcoholic; you say you are a binge drinker only. You told the person who prepared the cultural report you

5      R v Poihipi [2019] NZHC 3048; R v Davis [2018] NZHC 1162; R v Roper [2013] NZHC 1687; R v Callaghan [2012] NZHC 596; and R v Pirini HC Whangarei, CRI-2010-027-448, 22 April 2010.

6      Sentencing Act, s 103. See also, for example, R v Rapira [2003] 3 NZLR 794 and R v Howse

[2003] 3 NZLR 767.

would often argue with Ms Ngataki when the two of you were “drunk”, and sometimes you would hit her. Plainly, you did.

[26]   You  were  examined  by   a   clinical   psychologist   earlier   this   year.   Greg Woodcock says:

… while Mr Vi manifests deficits in intellectual functioning, it is not at a degree that would substantiate a diagnosis of intellectual disability. Given that he has been able to live independently, to gain and maintain employment and to care for himself, I am not convinced that there is a deficit in adaptive function. Where there are certain deficits, I would opine find their genesis in alcohol dependence and his episodic mental illness which appears to be poorly managed.

I also opine that there does not appear to be any evidence of an onset of intellectual and adaptive deficits during his development and this is evidenced by his success in a state-run examination and his ability to immigrate to  New Zealand, obtain Permanent Residency and support himself by regular employment.

[27]Mr Woodcock later says:

Mr Vi’s clinical presentation strongly suggests that his chronic drinking has resulted in neurodegeneration with the consequential decline in cognitive ability as outlined above. To complicate matters further, Mr Vi’s mental health issues are exacerbated, which will further hinder his mental functioning.

[28]   Mr Woodcock does not suggest the existence of a causative connection between your intellectual deficits and your commission of the murder. Moreover, your actions afterwards imply a distinct presence of mind. Your consumption of alcohol likely contributed to your violence, but that, by law, is not a mitigating feature.7 Alcoholism can be mitigating, but it has no obvious purchase on this crime, the most serious in our criminal calendar.

[29]   Having said all of that, your background, your intellectual deficits, and your likely alcoholism contributed to your circumstances surrounding the murder, which, overall, provide some modest attenuation of culpability.8 Furthermore, prison will be hard for you because of your difficulties, and because you have no family here in

7      Sentencing Act, s 9(3).

8      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509. See also Sentencing Act, s 9(2)(e).

New Zealand. Because of this mix, I deduct another nine months from the minimum period.

[30]   Greater discount is not warranted given the seriousness of the crime; the diffuse nature of the causative contribution; and the law in this area. In fairness, you do not argue otherwise: on your behalf, Mr Burroughs responsibly acknowledges that the significance of any deduction is a matter for the Court.

[31]   Mr Vi, I therefore adopt a minimum a period of of 13 and a half years’ imprisonment, deduct one year for your late guilty pleas, and a further nine months for your personal circumstances.

[32]   Before passing sentence, I record this: several victim impact statements were read today including a global victim impact statement on behalf of Ms Ngataki’s whānau. I consider this statement consistent with the spirit of the Victims’ Rights Act 2002 and therefore relevant to sentencing.

[33]Mr Vi, please stand.

Sentence

[34]   Peter Vi, for the murder of Georgina Ngataki, I sentence you to life imprisonment with a minimum period of 11 years and nine months.

[35]Stand down.

……………………………..

Downs J