R v Wihongi HC Napier CRI 2009-041-2096

[2010] NZHC 2034

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-041-002096

THE QUEEN

v

JACQUELINE ELAINE WIHONGI

Counsel:         S B Manning for the Crown

E R Fairbrother and L P F Lafferty for the Accused

Date:              30 August 2010

SENTENCE OF WILD J

[1]      Ms Wihongi, you are for sentence for murdering Mr Vivian Hirini at Tamatea on 5 June last year.  You were found guilty by a jury at your trial here in Napier over three days earlier this year.

[2]      Your counsel will have told you that the minimum sentence for murder is life imprisonment  –  at  least  10  years  in  jail  –  unless  I  am  persuaded  that  life imprisonment is a clearly unjust sentence for you.  As your counsel’s submissions have indicated, they have the task of persuading me that justice clearly calls for a sentence less than life imprisonment.

[3]      Whether that is the position depends both on the circumstances in which you killed Mr Hirini and on your circumstances as the prisoner I am sentencing.  And I

need to look at the bad aspects of what you did, and the bad aspects of you as a

R V WIHONGI HC NAP CRI 2009-041-002096  30 August 2010

person, as well as those aspects that are favourable to you.  It is not an easy task for your counsel to persuade me that life imprisonment is a clearly unjust sentence.[1]  Are you following that?  You are not looking at me.  Do you follow what I am saying?

[1] All of this emerges from the Court of Appeal’s judgment in R v Rapira [2003] 3 NZLR 794 at [120]- [121], endorsing what Fisher J had said in R v Rawiri HC Auckland T01/4047 16 September 2002 at [27]-[30].

[4]      On 5 June last year you were living with four of your six children at 5 Tyrone Place in Tamatea.   The ages of the children living with you ranged from 3 to 11 years.

[5]      You were in a relationship with the man you murdered, Mr Vivian Hirini.  He was the father of five of your children.  However, you were not living together at the time:   Mr Hirini had a house in Bayview which he shared with a man called Mr Paratene.

[6]      On the morning of 5 June Mr Hirini and Mr Stuart Paratene came to your house.   Using a bin and a hired trailer they spent the morning cleaning up your section and taking rubbish to the tip.  They also took some rubbish to the tip for your neighbour, Mr Westcott.  On the way back from the tip Mr Hirini and Mr Paratene stopped at the bottle shop and bought some liquor – quite a lot of it.  They spent the afternoon drinking that liquor at Mr Westcott’s house.  A Mr Harris turned up at the drinks as well, as did you.  An argument developed.  It was between Mr Paratene and Mr Hirini, and you.  It seems that the argument was about money, and in particular Mr Hirini and Mr Paratene taking several thousand dollars from lump sum compensation  you  had  received  from  the  ACC.    There  was  evidence  that  Mr Paratene at one point shoved Mr Hirini who fell back on to the couch, and that the two men then took their argument outside.  There was also evidence that you left Mr Westcott’s house angry, and spent some time sitting in Mr Harris’ car outside on the street, while you calmed down.  I gather you went back to Mr Westcott’s house, but you also went back to your own house, because you had children to look after.

[7]      Around 5pm you and Mr Hirini were both back at your house.  Your daughter

Jameekah,  who  was  11  at  the  time,  said  you  and  Mr  Hirini  were  arguing  and shouting at each other - and that you were angry.  It seems that the argument about the money was continuing.  You have also said to several of the psychiatrists and psychologists who have examined you and reported to me that Mr Hirini demanded to have sex with you before he left.[2]    You have heard me discussing that with Mr Manning.  Although you and Mr Hirini had continued a sexual relationship after he moved to live in a separate house at Bayview, you spurned his advances that evening because you were angry with him and you were angry with Mr Paratene.  I accept

that Mr Hirini demanded sex from you and that you refused and will come back to say something more about that.

[2] For example, Dr Barry-Walsh in his report of 11 August 2010 at p3, Dr Chaplow in his report of 12 August 2010 at pp 3-4 and Dr Short in her report, incorporated in Dr Chaplow’s Addendum Report of 24 August 2010 at p5.

[8]      Jameekah said that her father – that is Mr Hirini – then walked out of the house.  She said that you got a knife from the kitchen and followed him out holding the knife in your right hand.  While you and Mr Hirini were on the path outside the house, Jameekah said you lunged at Mr Hirini stabbing him hard in the chest with the knife.  She demonstrated your using a slightly overhand stabbing motion.

[9]      Mr Paratene also witnessed that happening.  He also demonstrated your use of the knife, although he thought it was more of a thrusting motion.  Mr Paratene said that he heard Mr Hirini go ‘Aaaah’ and then say “Fuck, the bitch has stabbed me again”.

[10]     Both Jameekah and Mr Paratene say that Mr Hirini then got into your vehicle which was parked in your driveway, started it up and drove off.  Mr Paratene says that you said to him that you wanted to chase after Mr Hirini, because he had taken your car and because he was bleeding.  You and Mr Paratene got into Mr Paratene’s car and drove off in search of Mr Hirini, Mr Paratene driving.

[11]     A short time later, you came across your car.  It had crashed into a fence near the intersection of Fyfe Crescent and Norfolk Street, which is around the block from

your home.  Mr Hirini was still behind the wheel, slumped over it semi-conscious. By the time you got there, people from nearby houses were already on the scene. Two of the people, both with medical training, were trying to help Mr Hirini.  One of them, a trained nurse, said that you came up to the car and were punching at Mr Hirini through the window.  She said you were trying to attack him.  This witness said she had to ask other people to get you away.  They did this, but then you came back and were seen punching at the windscreen and the bonnet.   You were later arrested by the Police for a breach of the peace at the accident scene, and taken to the Police Station.

[12]     Meanwhile, your daughter Jameekah had picked up the knife you used to stab Mr Hirini from the grass verge near your letterbox.   She had taken it inside and washed the blood off the knife and left it in the sink or on the kitchen bench. Jameekah then took her younger brother and sister to her friend’s place at a nearby house, and from there rang her Nan – that is your mother – who came and got the children.

[13]     The pathologist who gave evidence at your trial said there were two stab wounds in Mr Hirini’s chest.  The fatal stab wound was about 5 cm deep.  It severed, cut, Mr Hirini’s mammary artery and also pierced one of his lungs.  Mr Hirini died in hospital from blood loss consequent upon those injuries, despite emergency thoracic surgery to try and save his life.

[14]     So, Ms Wihongi, that is an outline of what I find happened on the evening of

5 June last year when you murdered Mr Hirini.   In other words, those are the circumstances of your offending.

[15]     You have given muddled and different accounts of what happened and it is obvious to me that you do not really know what happened.   Indeed, Dr Chaplow commented that, when he examined you on 28 July, you seemed unaware that you had killed Mr Hirini.

[16]     When I began these sentencing remarks to you, I told you that I needed to consider your personal circumstances as the murderer I am sentencing.  And I now turn to those.

[17]     You will be 34 on 5 November this year, although I agree with several of the experts who have reported to me on you that you look much younger, more like a woman in your 20s.   You were brought up in Gisborne in a large Maori family. Your early childhood was normal and happy save that you did not get on with your

father very well.   From all the reports I have received[3], it is clear that your life

changed for the worse when you were 13.  You took a massive overdose of digesic drugs after an argument with your mother, were admitted to hospital, and to the intensive care unit, in a coma.   You were in hospital for two or three weeks and following your discharge you could not speak or walk properly.  Over the following months that  you were  at home recuperating  you lost contact with  your friends. When eventually you went back to school  you lasted less than a month before dropping out and never going back, although you did attend an “Activity Centre” for problem children.  I will come back to the effects that drug overdose has had on your mental health.

[3] Report of Associate Professor P M J Brinded, 22 May 2010; Reports of Dr J Barry-Walsh, 9 October 2009 and 11 August 2010; Department of Corrections Pre-Sentence Report, 12 August 2010; Report of Dr D G Chaplow, 12 August 2010; Reports of Dr E Daniela, 18 September 2009 and 13 August 2010; Impairment Assessment Report of Dr N Tanner, 20 April 2009; Addendum Report of Dr D G Chaplow, 24 August 2010, which incorporates a report to him by Dr Jacqueline Short.

[18]     You admit that from around the time you were 13 you have consistently and in a major way abused alcohol.  Again, I will say more about that.

[19]     In 1992, at the age of about 14, you were sexually abused by your drug and alcohol counsellor.

[20]     When you were 14, or maybe 15, you got into a relationship with Mr Hirini’s older brother Billy.   He prostituted you for money and for drugs over a period of about six months.

[21]     It was through that relationship with Mr Billy Hirini that you met his younger

brother, Mr Vivian Hirini.   You and Mr Vivian Hirini were together for about 17 years until you murdered him last year.  The relationship throughout was obviously tempestuous and chaotic.  It was marked by both of you drinking heavily and dishing out violence to each other, usually when you were drunk.

[22]     At the age of around 18 you were “gangbanged” many times by the Black

Power gang of which Mr Vivian Hirini was a member.

[23]     When you were 19 you were raped in your home by one of Mr Hirini’s gang mates.  You were bathing your baby daughter when that man broke into your home. He threatened to harm your baby before he raped you.

[24]     At the age of 26 you suffered a home invasion.  In front of your children you were hit over the head with a full bottle of beer and knocked out.   You suffered significant injury, in particular scarring around your neck.

[25]     In his report Dr Chaplow describes your life since 1992 as a “history of victimhood”. That is a fair summary.

[26]     Drawing on all the reports I have received, I summarise the state of your mental health as follows:

•You have significant cognitive impairment resulting from the anoxic brain injury consequent on your drug overdose when you were 13. Neuropsychological testing places you in the low to borderline range in terms of the executive functioning of your brain, that is your ability to make judgments, to reason and to plan.

•You show residual, complex features of post traumatic stress disorder and anxiety and depression dating from the times you were raped and the home invasion.

•You have an alcohol abuse disorder.  That describes the use of alcohol to your personal disadvantage.

So, Ms Wihongi, that is my summary of your personal circumstances, in particular the main traumatic events during your life and your current mental health.

[27]     Murder is a very serious crime.  It is a terrible thing to kill another human being.  I am required to hold you accountable for killing Mr Hirini, to try to seek an acknowledgment from you of the harm you have caused, and to denounce what you did.  The law largely does that for me by requiring a sentence of life imprisonment unless that is clearly unjust.  I have a victim impact statement from Mr Hirini’s older sister, Ms Miria Hirini.  While she accepts, as you have got to, that her brother “was no perfect angel” she speaks very sadly of his loss to the family, and also of course the loss to Mr Hirini’s children of their father.  I have already made the point that five of your children are also Mr Hirini’s children.

[28]     What emerges from the reports I have is that you are deeply regretful and distressed that you killed Mr Hirini.  You were examined as recently as 18 August by Dr Jacqueline Short.  She is the visiting psychiatrist at Arohata.  Dr Short reports that you admitted to her that you continue to love Mr Hirini and it seemed to her that whatever the circumstances, your wish was for Mr Hirini and you to be in a non- violent relationship and not for him to be dead.  Another point that I find significant emerged from Dr Short’s examination and report.   She said that  you  described ongoing feelings of shame for the violence in your relationship with Mr Hirini, and that your focus was on the occasions when you were violent to him.  And you know there have been a number of those, including your previously stabbing him and throwing a bottle at him causing the loss of one eye.  Then Dr Short said this, and I am quoting her here:

In contrast, Ms Wihongi described his (that is Mr Hirini’s) violence towards her in a rather emotionally detached, almost accepting manner, seemingly minimising its severity.

[29]     I am impressed by the fact Ms Wihongi that in no way are you seeking to blame Mr Hirini for what happened on the evening you killed him, indeed you do not blame him for the violence over your long relationship with him.  Really, quite the opposite.

[30]     I also need to impose a sentence which  will deter  you from ever doing anything like  this  again, and  to  protect  the  community from  you.    However,  a deterrent sentence is not needed here, nor does the community need to be protected from you.  You have no previous convictions for violence and the information I have is that you do not currently represent a serious risk to other people.[4]    Further, the reports I have are unanimous in their view that the combination of things that led you to kill Mr Hirini is treatable.   I am going to say something more about that in a moment.  Indeed, the concern in the reports is more whether you represent a risk to

yourself at present, incarcerated in Arohata Prison.

[4] Report of Dr Barry-Walsh, 11 August 2010, p4, and Dr Chaplow’s Addendum Report at p6.

[31]     I also need to impose a sentence that aims to assist in your rehabilitation and reintegration.   Those are difficult words.   They mean that the sentence I impose should aim to help in restoring your mental health and in getting you back to an orderly and hopefully a happy life.

[32]     I see that rehabilitative aim as an important one because I consider you are a person who is both deserving of help, and who can be helped.  It seems that despite the violence and chaos in your relationship with Mr Hirini you were a loving and a good mother to your children.  One of the sad ironies that emerged from Jameekah’s evidence at your trial was what a lovely and a responsible girl she is.  In a calm and matter of fact way she told the jury how she picked up the knife, took it into the kitchen and washed the blood off it and then, because you had left with Mr Paratene, she gathered up her younger sister and brother and took them to a neighbour’s house from which she rang her Nan – that is your mother – and asked her to come and pick the three of them up.  Ms Wihongi, that reflects credit on you as Jameekah’s mother. Further – and Mr Fairbrother mentioned this – the photographs of the crime scene showed the very neat, tidy house that you were maintaining for your children.

[33]     An unfortunate fact that also emerges from the reports is that you did not receive the expert help that was available to you in the aftermath of your drug overdose when you were 13.  I think you know that you are mainly to blame for that, because help was offered to you, and you didn’t take it up.  You had well and truly gone off the rails.  But the reports all say that you can be helped, and that you have

already been helped.  What can be done is perhaps best spelt out in Dr Chaplow’s addendum report of 24 August, in which he quotes at length from the report he requested from Dr Short.

[34]     Now, for the Crown, Mr Manning accepts the mental health problems or impairments that I have outlined.   But what he says is that none of those things played any part in your murdering Mr Hirini.  In lawyer’s language, he says those things were not causative factors.   Mr Manning says that what did lead  you to murder Mr Hirini was the fact that you were drunk, and your tendency to become very angry when you were drunk.  He points to the deliberateness of your conduct in taking a knife from the kitchen and following Mr Hirini out of the house before you confronted him and stabbed him in the chest on the path outside.  Mr Manning says that this was not a “sudden, explosive, one-off loss of control which came relatively

unexpectedly”.[5]    I agree with that last point of Mr Manning’s to an extent, but that

does not rule out your impairments being a causative factor.

[5] The citation is from R v Mayes CA26/03 16 October 2003 at [7].

[35]     Now in making those points Mr Manning goes to what I think is the critical decision I have to make.  Did your mental impairments play a part in your murdering Mr Hirini?  That is because s 102 Sentencing Act recognises that there are murder cases where a sentence of imprisonment for life would be manifestly unjust.   The Court of Appeal has acknowledged that, for example in R v O’Brien[6], and similarly

[6] R v O’Brien (2003) 20 CRNZ 572 at [36].

in R v Rapira[7], and also in R v Mayes[8].  I am conscious, as Mr Manning pointed out

to me in his written submissions, that the Court of Appeal went on in O’Brien[9]to say:

Low intellectual capacity unrelated to the mental elements of criminal responsibility is seldom likely to justify departure from the statutory presumption.

[7] R v Rapira at [121].

[8] R v Mayes CA26/03 16 October 2003 at [32].

[9] R v O’Brien at [36].

[36]     I have read all those cases carefully, and also the lengthy sentencing remarks of Harrison J in R v Mikaele[10].

[10] HC Auckland T013638, 30 August 2002.

[37]     It is not appropriate to go into a detailed comparison with other cases in the course of sentencing you this morning for murder.  I make the point that all those cases are different.   Perhaps the closest is Mayes, but there are at least these distinguishing features between your case and Mayes:

•The victim’s relationship with Mr Mayes had lasted only “several months”.  In your case there is a 17 year relationship, marked by that series of traumatic events I outlined.

•Mr Mayes had abused the victim several times, including assaulting her earlier in the evening, which was the fact that led to that observation I quoted a moment ago, fastened upon by Mr Manning.[11]

[11] In [37] – the citation from R v Mayes At [7].

•Although the sentencing Judge thought it unlikely that Mr Mayes would  do  anything  similar  again[12],  the  Court  of  Appeal  did  not agree[13].  The Court of Appeal regarded the ongoing risk posed by Mr Mayes as static and therefore considered the amenability to life recall should not be replaced.

[12] At [9].

[13] At [33].

•Mr Mayes had been released on bail only hours before the murder and he had acted in breach of his bail conditions, in particular by drinking alcohol.

•         Mr Mayes had previous convictions for violence.

•         Mr Mayes’ killing of his victim was callous and brutal.

•         Mr Mayes demonstrated no remorse.

[38]     I am persuaded by the reports I have that your impaired mental health did play a part in causing this murder.  That is the view of Dr Barry-Walsh, although he accepts that it is speculative[14]:

For me, a troubling aspect of this case remains Ms Wihongi’s mental state at the time of the offending and the question marks over Ms Wihongi’s actions at the time.  She has been convicted of the offending.  Although speculative I suspect that the account she first gave to me of feelings of anger and fear when  the  victim demanded  sex  is  a  possible  and  indeed  perhaps  likely proximate trigger for her actions.  Ms Wihongi had long suffered within a violent relationship with the victim, had a history of intense feelings of anger towards the victim at times and as I identified in my first report had an exaggerated sense of threat.   She was further, greatly troubled by a more recent  home  invasion,  with  the  perpetrator  at  large  and  responsible  for further acts of intimidation. Given her intoxication that day and these factors it is certainly plausible that she reacted in a violent fashion to an overwhelming sense of anger, threat and fear driven by a combination of cognitive impairment, the effects of repeated trauma, personality dysfunction and the chaotic and conflicted relationship she had with the victim.  It is for the court to consider whether a life sentence is manifestly unjust; however Ms Wihongi’s combined impairments and difficulties, which in my opinion are highly relevant to the offending, would seem to provide considerable mitigation.

[14] Report of Dr J Barry-Walsh addressed to Mr Fairbrother dated 11 August 2010 at p 5, following a further interview with Ms Wihongi on 7 July 2010.

[39]     Although perhaps still equivocally, the same  emerges from the report of

Professor Brinded[15]:

It would appear that this was probably the situation on the night of the alleged offending with the combination of Ms Wihongi’s psychological vulnerabilities and large amounts of alcohol resulting in increasing anger to the point of physical assault.   I am not able to comment on what Ms Wihongi’s intentions may have been as she was not able to describe that to me.

[15] The report of Professor P M J Brinded dated 22 May 2010 obtained by the Crown, at p8.

[40]     There is also support for a connection between your impairments and your murdering Mr Hirini in the report of Dr Short, quoted by Dr Chaplow[16]:

I was struck by Ms Wihongi’s description to me, of circumstances similar to the traumatic home invasion in 2004, which appear to have been recreated around the time of the offence.  In addition, given the prolonged, cumulative and coercive nature of the abuse that Ms Wihongi is alleged to have experienced, it is my view that her partner’s demand for sex would likely have had a significant impact on her already vulnerable mental health and on the subsequent sequence of events.

[16] Report of Dr D G Chaplow dated 24 August 2010 obtained for the prisoner, which contains a report

to him by Dr Jacqueline Short, at p5.

[41]     Ms Wihongi, you were, when you murdered Mr Hirini, affected by alcohol. The  Sentencing  Act  is  clear  that  I  cannot  take  that  into  account  by  way  of mitigation[17].   The Court of Appeal referred specifically to the part  alcohol had played in Mr Mayes brutally murdering his victim[18].   The view that I take is that alcohol was one of your impairments.   When you were growing up your parents

[17] S 9(3) Sentencing Act 2002.

[18] R v Mayes para [33].

abused alcohol.   You started doing the same when you were about 13 and have continued ever since.  In his report Dr Chaplow referred to your major alcohol abuse since you suffered brain damage at the age of 13.  He reported to me[19]:

[19] Dr Chaplow’s report of 12 August 2010, p6.

She found it difficult to interact socially with people unless she was intoxicated or partially so.  She stated that without the use of alcohol she felt nervous and anxious and had poor esteem.

Dr Chaplow also noted that Dr Tanner in her Impairment Assessment of 20 April

2009 stated that you needed to be drunk to have sex and that “she loses control when he (Mr Hirini) is around her ... and that most of their arguments are over her lack of interest in sex”[20].

[20] As above, p7.

[42]   Dr Chaplow’s findings and his discussion of them contain also these comments[21]:

[21] As above, p7.

Coupled with this impediment (her brain injury) was her developing anxiety and depression and her increasing use and abuse of alcohol, without which she had difficulties in socialising.

When drawing the facts together Dr Chaplow referred to[22]:

[22] As above, p11.

•Her social dependence on alcohol and the detrimental effects it had on her in terms of disinhibition and irritation, especially toward the victim.

•Her residual features of PTSD, suggesting avoidance of sex coupled with her reflexive anger in the context of his requesting sex at that time.

[43]     Dr Brinded also referred[23]  to you self-medicating through excessive use of alcohol, and the fact that that has led to your alcohol dependence.

[23] Dr Brinded’s report of 22 May 2010 at p8.

[44]     To summarise, I do not take account of your intoxication at the time by way of mitigation.  I do take account of it as one of your impairments – alcohol abuse disorder – which operated in combination with your other impairments in a causative way.

[45]     On the basis of the reports I have, I accept that your impairments played a part in your murdering Mr Hirini.  I consider imposing a sentence of imprisonment for life on you would be manifestly unjust.  In addition to that, I factor in four points I have already mentioned.   The first is that you have no convictions for serious violence, in fact no convictions that have any real relevance in sentencing you this morning.  The second and very important point is that there is no need to protect the public from you in the future – the reports I have satisfy me about that.  The third point is your deep and very genuine remorse and sadness for what you did.   The fourth and last point is the real prospect that you can be restored as a worthwhile member of society.  That consideration is the more cogent and urgent because you are the mother of six children, several of them still young enough to need a loving and good mother, which I think you are.

[46]     The sentence I impose on you is one of eight years imprisonment.  Consistent with my holding that a sentence of life imprisonment would be manifestly unjust[24] and also with what I have said about the prospects of rehabilitating you, I do not impose a minimum period of imprisonment.   Determination of the right time to release you from prison is best left to the Parole Board.

[24] R v Mikaele at [54] where Harrison J makes the point that the Court could seldom consistently impose a sentence less than life imprisonment, but also impose an MPI.

Solicitors:

Crown Solicitor, Napier for the Crown