R v TINEI [2023] NZHC 1869

R v TINEI [2023] NZHC 1869 [19 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-092-007447[2023] NZHC 1869THE KINGvPOI TINEIHearing: 19 July 2023Counsel: HD Benson-Pope and LA Taula for CrownPL Borich KC for DefendantJudgment: 19 July 2023SENTENCING REMARKS OF DOWNS JSolicitors/Counsel:Crown Solicitor, Manukau.PL Borich KC, Manukau.Introduction[1] Poi Tinei, on 18 September last year you murdered Teao Wiki. You did so bypouring petrol over her and setting her alight. You did nothing to help as others triedto douse the resulting house fire and, as I shall discuss, you have a history ofthreatening and harming the victim.[2] It is common ground you must be sentenced to life imprisonment.1 The onlyissue is the number of years you must serve before you may become eligible for parole.The law calls this a minimum period of imprisonment. It is my focus today.Facts[3] By the time of the offending, you had been in a relationship with the victim forapproximately three years. The two of you had repeatedly separated and reconciled.Indeed, you and Ms Wiki had been apart until approximately two weeks before theoffending. She then came to stay with you and your family.[4] On the evening of Saturday, 17 September last year, the two of you were at abar. You argued. The victim left and went to the home of a nearby family member.You stayed at the bar.[5] You came home at approximately 9.30 that evening. She returned atapproximately 11.13 pm.[6] You and the victim then argued. Another member of the household heard thatabout midnight.[7] You had a petrol can in your bedroom. You poured petrol over the victim, onthe mattress, and around the bedroom. You then set the petrol alight.[8] The fire activated a smoke alarm, waking those inside.1 Sentencing Act 2002, s 102.[9] Your brother heard sounds from your bedroom consistent with thumping andslapping, followed by the victim crying out for help.[10] At some point, you left the home. You made no attempt to help the victim orcheck other members of your family were not in danger. When members of the publicand your brother-in-law attempted to douse the fire using a garden hose, you "appearedto try to hinder their efforts".2[11] When emergency services arrived, you were repeatedly asked if there wasanyone else inside. You ignored some of these questions and gave inconsistentresponses to others. You did not say the victim was inside. The summary of facts alsodescribes you as being evasive and mingling with the crowd of onlookers.[12] You suffered severe burns to your feet, legs, back and neck.[13] The victim's body was found inside the home later that day. She was in thebathroom, lying face down in the bathtub. That room is across from, or next to, yourbedroom. I draw the obvious inference: the victim had tried to save herself by goinginto the bathroom, then lying in the bath.[14] A postmortem was conducted. The victim had soot in her airways, confirmingshe was alive when you set her alight. A large contusion was found over her right eye.Given this injury—and given your brother heard noises in the bedroom consistent withthumping and slapping—I find, beyond reasonable doubt, you assaulted the victim bystriking her to the head at, about, or shortly after you had set her on fire.[15] Police spoke to you at the hospital. You said you believed everyone had leftthe house. You declined to say more.[16] You were charged with assaulting the victim on 17 September last year, butthat was a holding charge only. On 20 October last, you were charged with her murder.2 Summary of facts, para 27.[17] You first appeared in this Court on 9 November last. On 23 February this year,your lawyer requested the court arrange a date for you to enter a guilty plea.On 3 March this year, you pleaded guilty to the charge of murder.Victim impact[18] Five of seven victim impact statements were read in court. I shall not recitefrom them beyond capturing one observation: that Ms Wiki's death feels as though ithas created "a life sentence" for others. I add these remarks about victim impact.[19] Ms Wiki was the youngest child of 10. She came from a large whānau—shewas much loved. She has four children and grandchildren too. Her death hasdevastated the family. Unsurprisingly, the manner of her death continues to hauntthem.[20] Mr Tinei, your actions continue to send waves throughout your own family,throughout the victim's family, and throughout the wider community. That shock willendure for years.Minimum period of imprisonment[21] The law requires I impose a minimum period of not less than 17 years if themurder is especially bad, unless that would be manifestly unjust.3 The Crown saysyour minimum period should be not less than 19 and a half years, subject to guilty pleadiscount. On your behalf, Mr Borich KC says after applicable discounts, yourminimum period should be 15, 16, or perhaps 17 years, but no more.[22] The Crown contends your murder of the victim was especially bad because itwas committed with a high level of brutality, cruelty, depravity, or callousness.4 TheCrown emphasises you poured petrol on the victim and set her alight, while she wasconscious. Mr Borich responsibly acknowledges all three similar cases—in which the3 Sentencing Act, s 104.4 Sentencing Act, s 104(1)(e).victim was murdered by being set on fire—have been treated as especially bad for justthis reason.5[23] The Crown also draws attention to your related callousness in assaulting thevictim (to the head); failing to do anything to help her or others; seemingly hinderingothers' efforts to fight the fire; and your indifferent responses to emergency services.It, therefore, says it is unarguable that your offending was committed with a high levelof brutality, cruelty, depravity, or callousness, and thus caught by the especially badmurder provision. I agree.6[24] To determine your minimum period, I now consider the things that make youroffending more serious; whether any things make your offending less serious; andsimilar cases.Aggravating factors[25] Four things make your offending more serious.[26] First, you abused the victim's trust. Because you and she were in arelationship, the victim was entitled to look to you for comfort, support, and protection.You betrayed her trust in the most significant way imaginable—by killing her.[27] Second, you have a history of threatening and harming the victim. I begin withthe last episode, and I work forwards:(a) On 19 September 2019, you argued with the victim and her femalefriend. The friend called Police. She and the victim were in her car.You threw a rock at the windscreen, smashing it. You then pouredpetrol over the victim's car and set it alight. It suffered extensive firedamage, as did the carport. You were convicted of arson and wilfuldamage.5 R v Khan [2004] BCL 1116 and on appeal, R v Khan CA470/04, 14 June 2005; R v Kumar &Permal [2015] NZHC 954 and on appeal, Kumar v R [2016] NZCA 329; R v D [2014] NZHC2272; and on appeal, DD (CA595/2014) v R [2015] NZCA 304.6 For this reason, further analysis at this juncture is unnecessary; see the recent decision of Frost v R[2023] NZCA 294 at [36].(b) On 22 October 2020, you arrived uninvited at the home of the victim'ssister. The victim was then living with her sister. You were asked toleave. You did so, but only after breaking every window of the victim'scar. You were convicted of wilful damage for that offending.(c) On 6 January last year, you and the victim argued. You abused herverbally. She drove away, frightened. You sent her multiplethreatening messages, including one to burn down her home. You wereconvicted of behaving threateningly.(d) On 22 January last year, you and the victim again argued. You threw acoffee table at her. It struck her arms and landed on her ankle. Youthen went outside and smashed all of the windows to her car and all ofthe lights to her car. You were convicted of assault with a weapon andwilful damage.(e) Police had been called 15 times during your relationship with thevictim.7 I put to one side the observation in the summary of facts thatyou were considered to be the "predominant aggressor" on eachoccasion. I do so because it is not clear this constitutes a fact in thiscontext.[28] Third, and returning to things that make your offending more serious, you wereon bail for the January offences when you murdered the victim.[29] Fourth, as the Crown observes, you were subject to a protection order inrelation to the victim when you murdered her. She had obtained that order3 August 2022. It was served on you 8 August 2022.[30] It follows that while your murder of the victim was not premeditated, it wouldbe wrong, I think, to describe it as out of the blue. You had previously assaulted thevictim. You had threatened to burn down her home. And, you had set her car on fire.Your use of fire needs to be seen in this context. You appear to have regarded it as an7 Summary of facts, para 3.instrument of control. That you had the can of petrol in your bedroom may be thoughtodd.Mitigating factors and personal circumstances[31] I now turn to things that may make your offending less serious.[32] As I have explained, you pleaded guilty 3 March 2023. I consider that pleareasonably prompt, once time is removed for the Christmas vacation. Whether theevidence against you was strong is not something I have been told about. But,whatever the position, guilty pleas in this context typically attract discounts of notmore than one or two years, a stance recently confirmed by the Court of Appeal.8[33] Mr Borich raises the possibility of an additional discount for remorse, on thebasis you told the probation officer you were "sorry it got this far"; "own my actions";and did not wish to prolong this case. However, you also told the same officer someof the details in the agreed summary of facts were "not true". Your pre-sentence reportrecords that you said that you "didn't pour any petrol". Today, Mr Borich says thatthe probation officer has misunderstood this remark. I accept that is possible.However, what is clear is this: you were "not open to discussion" in relation to youruse of violence or the attitudes that underpin them with the probation officer.[34] I am not persuaded discount for remorse is warranted. You showed none onthe evening in question. And, even putting aside the observations I have justmentioned, helpful remarks to a probation officer do not, without more, typicallyprovide an adequate basis for discount for remorse additional to that inherent to aguilty plea.[35] Your personal circumstances do not identify any mitigating features.You are 51. You describe a stable upbringing, in which a large family unit and thechurch provided a seemingly supportive framework.8 Frost v R, above n 6.[36] You have had various jobs. You report finding it difficult to stay in a workplacefor long. You say, "nothing interested you". That said, I gather you are contentworking in the prison kitchen.[37] You have convictions other than those I have discussed. Alcohol appears tohave animated some. It may have played a role in this offending too.[38] You are considered to be at high risk of further offending. Your risk of harmis assessed as high.[39] It follows the only thing that makes your offending less serious is yourreasonably prompt guilty plea.Similar cases[40] I now turn to the three similar cases, which like yours, are horrible.[41] First, in R v Khan, the 23-year-old defendant poured lighter fuel over the victimand set her alight.9 The offending was premeditated. The especially bad murderprovision was engaged for both reasons. Frater J adopted a minimum period of either19 and a half or 20 years' imprisonment; and deducted either six or 12 months for thedefendant's age. There was no guilty plea. The defendant received a minimum periodof 19 years. The Court of Appeal said that "cannot be described as manifestlyexcessive".10[42] Second, in R v Kumar & Permal, the 18 and 20-year-old defendants assaultedthe victim, rendering him "deeply unconscious".11 The defendants then set him alight.The offending was premeditated, for reward. The defendants had stolen $30,000 fromthe victim, albeit that offence was not charged. The especially bad murder provisionwas engaged "on a number of bases".12 Venning J imposed a minimum period of9 R v Khan [2004] BCL 1116.10 R v Khan CA470/04, 14 June 2005 at [16].11 R v Kumar & Permal [2015] NZHC 954 at [8].12 At [13].17 years on each defendant. Neither pleaded guilty, but it appears their ageconstrained the minimum periods. Both were upheld by the Court of Appeal.13[43] Third, in R v D, the defendant assaulted the victim, her father-in-law, leavinghim unconscious.14 She then set him alight. The offending was premeditated, and forreward. The defendant had committed other offending too, again for reward. Ellis Jconcluded the especially bad murder provision was engaged because of(a) premeditation and (b) the murder was committed with a high level of brutality,cruelty, depravity, or callousness. The Judge adopted a minimum period of 18 years'imprisonment. The defendant suffered a mental illness and pleaded guilty three weeksbefore trial. The Judge deducted three years for these things. The Court of Appealupheld the defendant's 15-year minimum period.15[44] Mr Tinei, Mr Borich says your offending is less serious than those casesbecause it was not premeditated and not for reward. I disagree your offending is lessserious for three reasons.[45] First, the victims in Kumar & Permal and D were unconscious when set alight.Distressingly, Ms Wiki was not.[46] Second, taken together, the four things I have referred to as making youroffending more serious could be said to constitute "other exceptional circumstances"within the especially bad murder provision.16 But, even if they do not, theirconstellation makes your offending appreciably more serious. I repeat what I saidearlier, it is important. While it is correct your offending was not premeditated, itcannot be said it did not come out of the blue. Again, you appear to regard the use offire as an instrument of control.[47] Third, in pouring petrol over the victim, or I should say not only the victim butalso the mattrass and then around the bedroom, you deliberately risked a very seriousblaze to the home and in turn others' lives.13 Kumar v R [2016] NZCA 329.14 R v D [2014] NZHC 2272.15 DD (CA595/2014) v R [2015] NZCA 304.16 Sentencing Act, s 104(1)(i).[48] For these three reasons, I consider your offending to be as serious as that inKhan. I, therefore, adopt a minimum period of 19 and a half years' imprisonment. Ideduct one and a half years for your reasonably prompt guilty plea, which, as I havesaid, is the only thing that makes your offending less serious.[49] I pause to record this before passing sentence. An 18-year minimum period isrequired to hold you accountable for an especially bad murder; to denounce youroffending; to deter others from like-offending; and to protect the community.17Sentence[50] Mr Tinei, please stand.[51] For murdering Teao Wiki, I impose life imprisonment with a minimum periodof 18 years.[52] Stand down...Downs J17 Sentencing Act, s 7(1).