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Wairau v R [2015] NZCA 215 (5 June 2015)

Last Updated: 16 June 2015


IN THE COURT OF APPEAL OF NEW ZEALAND
CA 696/2014 [2015] NZCA 215
BETWEEN	MAURICE TEMAAKI WAIRAU Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	Appellant in Person B D Tantrum and J V Barry for Respondent
Judgment:	5 June 2015 at 11:30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

[1] A week before Christmas 2013, Mr Wairau’s partner of 11 years left their home in Palmerston North, taking their three children with her. She had entered a relationship with another man. He lived in Hastings. She took the children there and moved in with him.
[2] Mr Wairau was very stressed about this for three days. An arrangement he believed he had made with his partner to return the children to him for Christmas fell through. Something in Mr Wairau gave way. He set fire to the family home in Palmerston North, travelled to the man’s address in Hastings, and in the middle of the night broke the door down and stabbed him with a knife.
[3] Mr Wairau was charged with attempted murder, wounding with intent to cause grievous bodily harm,^[1] aggravated burglary and arson. He pleaded guilty to all charges other than attempted murder. The jury acquitted him of that charge.
[4] Thomas J sentenced him to nine years and four months’ imprisonment.^[2]
[5] The sole issue in this sentence appeal is whether the Judge should have adopted a lesser starting point in sentencing Mr Wairau on the lead charges he had pleaded guilty to, wounding with intent to cause grievous bodily harm and aggravated burglary. Mr Wairau says the seriousness of his offending is mitigated by reason of provocation. The conduct of the victim is of course something the sentencing Judge must consider under s 9(2)(c) of the Sentencing Act 2002.

Background

[6] We draw the factual background largely from the Judge’s sentencing notes.^[3]
[7] Mr Wairau and his partner, Ms Malton, had been in a relationship for about 11 years. They lived in Palmerston North with their three children. At the time of offending, the children were aged 10, 9 and 6. Mr Wairau did not work. He cared for the children. Ms Malton worked as a teacher at a youth justice facility.
[8] In June 2013 Ms Malton entered a relationship with Mr Tiuka. It appears she was fairly open with Mr Wairau about this. She continued to live with Mr Wairau.^[4] Mr Wairau attempted to end the new relationship. His efforts included complaining to Mr Tiuka’s employer.
[9] On 16 December 2013 Ms Malton left the family home in Palmerston North and took the three children to Hastings to live with Mr Tiuka.^[5]
[10] Between 16 and 19 December 2013 Mr Wairau tried to regain custody of the children. He gradually accepted that his relationship with Ms Malton was over. He complained to Child Youth and Family about the children’s safety. They went around to Mr Tiuka’s house to check. He telephoned Ms Malton repeatedly, seeking return of the children. As Thomas J found:^[6]

You had understood that she agreed that she would do so. However, the children were not returned to you.

In evidence, Ms Malton denied having agreed to return the children. But we accept the Judge’s finding that Mr Wairau genuinely believed that the children would be returned to him.

[11] We pick up the narrative with the statement made by Mr Wairau to the police about four hours after he attacked Mr Tiuka:

A few days ago [Ms Malton] took off with the children from Palmerston North and has been living with [Mr Tiuka] ever since. At the same time I begun to lose it. I hadn’t eaten, I hadn’t been eating until I was extremely worn out. I knew within myself that I had lost [Ms Malton] so I started to think about my children and how I could get custody of them. I was waiting for the investigation to be processed in February. Tonight about 6 pm I rang [Ms Malton] at [Mr Tiuka’s]. I told [Ms Malton] I didn’t want my children living at [Mr Tiuka’s] home. I didn’t want them in the house and wanted them back in Palmerston North. [Ms Malton] said yes to my children coming home which gave me hope. I felt so relieved to hear that the children were coming back home, I fell asleep. I woke up after midnight and the children weren’t there. This really got to me ‘cos all I wanted my children home. I lost it.

[12] Shortly after midnight on 19/20 December 2013, Mr Wairau went over to his neighbour’s house and woke him. He persuaded him to drive him to Hastings. Mr Wairau packed a bag. In it he placed a large kitchen knife. It had a blade about 19 centimetres long. He lit a piece of paper on the stove and set fire to his house. Then he shut the door and headed off to Hastings with his neighbour. The house was rented from Housing New Zealand. It was seriously damaged.
[13] When they reached Hastings Mr Wairau told his neighbour he had “torched his house”. The neighbour wanted to go back and check his own house. He made Mr Wairau get out. At that point they were in central Hastings, near the public library. Mr Wairau walked the remaining two and a half kilometres to Mr Tiuka’s house. He pulled the kitchen knife out of his bag and kicked down the locked front door. He ran down the hallway to the bedroom where Mr Tiuka and Ms Malton were sleeping. The Judge described what happened next:

[10] On entering the room you immediately went to Mr Tiuka, raised the knife above your head and plunged it into Mr Tiuka’s chest, resulting in a serious stab wound four centimetres deep. Mr Tiuka described feeling a seering pain in his chest. Mr Tiuka assumed he knocked the knife away. You say you dropped it. Either way there was then a struggle wherein you repeatedly punched and kicked Mr Tiuka in the chest and head.

[11] Ms Malton woke up and tried to push you away. In the struggle she received a broken tendon to her right middle finger.

[14] The police were called. Mr Wairau remained quietly at the front steps waiting for police to arrive. When questioned, he admitted his actions. Mr Tiuka required emergency surgery. The blade of the knife had only narrowly missed a major artery.

Sentencing decision

[15] Thomas J took the wounding and aggravated burglary charges together as the lead offences. In terms of the decision of this Court in R v Taueki the Judge identified five aggravating factors: premeditation, serious injury, use of a knife, vulnerable victims (asleep in bed in the early hours of the morning) and forced invasion of the home.^[7] On that basis the Judge found the offending fell squarely within band 3 of Taueki. A starting point between nine and 14 years’ imprisonment was required.
[16] After considering three other authorities the Judge adopted a starting point of 11 years’ imprisonment on the two violence charges.^[8]
[17] It appears a submission that the starting point might be reduced because of provocation by Mr Tiuka had been made. The Judge said:^[9]

[50] I do not accept at all Mr Wairau that there was any possible justification for this behaviour or anything which could amount to provocation in the terms envisaged by the Court in Taueki. The violence in this case was extreme and potentially fatal. A decision of a woman to leave a relationship and begin a relationship with another man can in no way justify this violence.

[18] It was common ground that a cumulative sentence for the arson charge was appropriate. The Judge adopted three years, bringing the overall starting point to 14 years’ imprisonment. Having regard to the totality of the offending, the Judge reduced that to 12 and a half years’ imprisonment.
[19] The sole personal mitigating factor found relevant by the Judge was the early guilty plea. Mr Wairau was entitled to the full 25 per cent discount available.
[20] That resulted in an end sentence of nine years and four months’ imprisonment on the wounding with intent to cause grievous bodily harm and aggravated burglary charges, and a concurrent two years’ imprisonment on the arson charge.

Appeal

[21] Comprehensive submissions on appeal were filed by Mr Wairau’s counsel, Mr Snell. But shortly before the hearing, counsel advised us that Mr Wairau wished to present submissions himself. Counsel was given leave to withdraw. Mr Wairau argued his own appeal by AVL from Hawkes Bay prison. With one or two points of difference, or of different emphasis, Mr Wairau essentially advanced Mr Snell’s written appeal submissions.
[22] The sole point taken by Mr Wairau was that the Judge had erred in failing to recognise the conduct of the complainants (i.e. Mr Tiuka and Ms Malton) should diminish the starting point for the violence offences. The Judge was wrong to focus her analysis of provocation on the departure of Ms Malton. Rather, the real provocation was the loss of the children. It was apparent from the evidence that Mr Wairau had become overwhelmed by this. The conduct of the victims was an operative cause of the subsequent offending. If the children had been returned as promised, he was unlikely to have “lost it”. Provocation was not limited to a situation where a victim had done something or said something in the immediate presence of the defendant, provoking an immediate reaction. As Mr Snell put it in his written submissions, “slow burning provocation” could be considered, under s 9(2)(c) of the Sentencing Act 2002.
[23] For the Crown, Mr Tantrum submitted that the provocation here was insufficient to amount to a mitigating factor. There was no temporary loss of selfcontrol. Instead, a highly premeditated, sustained and violent assault on Mr Tiuka. That Mr Wairau felt aggrieved at the loss of his children was understandable. But his response to the situation was so grossly disproportionate that it could not amount to provocation reducing culpability. In any event, the overall sentence could not be regarded as manifestly excessive.

Discussion

[24] We start with three miscellaneous points.
[25] First, Mr Wairau argued that the wound to Mr Tiuka’s chest was less serious than suggested in the Judge’s sentencing notes (4 centimetres) and was rather, relatively superficial. The short answer is that it was a formally admitted fact that Mr Tiuka had suffered a 4 centimetre deep wound to his left chest.^[10] The Judge was entitled to rely on that admission.
[26] Secondly, Mr Wairau contested a statement by a doctor who examined Mr Tiuka. It refers to his having examined Mr Tiuka on “20 December 2014”. Obviously he meant “20 December 2013”. It is not clear in what form this statement was before the Court, if indeed it was. The date is plainly a typographical error of no significance whatever.
[27] Thirdly, in her sentencing decision the Judge observed that Mr Wairau was clearly “in a state of some distress but there is no evidence before me relating to your mental or psychological health”.^[11] We thought it prudent to make further enquiry about the evidence concerning Mr Wairau’s mental state. We were advised subsequently that at his second appearance on 4 February 2014, and before pleas were entered, Mr Wairau’s then-defence counsel applied for the Court to direct an assessment as to fitness to plead and insanity under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. A forensic health nurse prepared a screening report. A copy was provided to us. It concluded that there were no apparent issues regarding his fitness to plead. And Mr Wairau did not appear to be suffering from any disease of the mind rendering him incapable of understanding the moral wrongfulness of his actions. The application for a s 38 report was therefore declined. The issue of fitness to plead was not pursued further. No issue of insanity was advanced at trial. No mitigating mental health consideration was advanced at sentencing.

Victim conduct/provocation — s 9(2)(c) of the Sentencing Act

[28] The Sentencing Act requires the Courts to take into account “the conduct of the victim” to the extent applicable in any particular case, in sentencing: s 9(2)(c). The conventional view is that provoking conduct of a victim may be a mitigating aspect of the offending itself. To that extent, it may discount the starting point, before consideration of mitigating and aggravating factors personal to the offender.
[29] In Hamidzadeh v R this Court considered the approach to provocation in murder cases after the removal of the partial statutory defence of provocation.^[12] The primary questions were whether a sentence of life imprisonment would be manifestly unjust for the purposes of s 102 of the Sentencing Act, and whether a minimum period of imprisonment of 17 years or more ought to be imposed under s 104. Bearing that context in mind, the decision is of assistance in the context of violent offending below the level of murder when considering provocation as a factor in the conduct of the victim under s 9(2)(c). The following essential points may be drawn from it:

(a) It is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person, with the attributes of the defendant, of the power of self-control.^[13]

(b) Loss of control is still a factor relevant to culpability. Offending resulting from a “sudden and justified loss of self-control” may, depending on the circumstances, be viewed as less culpable than one involving a “calculated and controlled response”.^[14]

(c) A flexible approach is required; the evaluation in provocation sentencing is fact dependent. Relevant factors may include (nonexhaustively):^[15]

[T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.

Other factors identified by the Court of Appeal in Hamidzadeh as potentially arising include whether the offending occurred through fear rather than anger, whether there is any issue of intellectual impairment involved, and whether the offender has previously been the subject of physical or sexual abuse bearing on overall culpability.^[16]

(d) Sexual infidelity by the victim may conceivably amount to a mitigating factor in sentencing for violent offending.^[17] This Court in Hamidzadeh quoted the observation of Lord Judge CJ in R v Clinton:^[18]

Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional “rights” that one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak and crushed dreams.

[30] Two observations need to be made about the last point, however.
[31] First, nothing said in Hamidzadeh is in any sense an acknowledgment that provocation short of conduct amounting to self-defence justifies a violent response. Self-defence is just that: a defence to a charge of violent offending. Consideration of victim conduct under s 9(2)(c), on the other hand, is concerned with a different question: whether the behaviour of the victim has materially reduced the culpability of the defendant in responding to it. It will give rise, at best, to a modest discount on the starting point for sentencing.
[32] Secondly, the existence and extent of any discount for provocative victim conduct will depend on an evaluation of all the circumstances of the offending, including each of the factors identified in [29](c) above.
[33] We need refer to only two other decisions of this Court, both of which postdate Hamidzadeh.
[34] In Eldershaw v R the defendant pedestrian had an altercation with a young motorist.^[19] The motorist’s father intervened and told the defendant that any further argument should be with him rather than his son. In the ensuing fracas the defendant was punched (and worsted) by the father. The defendant left the scene. He returned a little while later with a friend. Each of them was carrying a baseball bat. He entered the motorist’s father’s property and hit the young motorist with one of the bats, causing a minor head wound. He was charged with aggravated burglary.
[35] This Court said that no recognition for provocation was appropriate:^[20]

[T]he reality is that the aggravated burglary was all down to Mr Eldershaw. He left and returned. He armed himself. He entered the property when told not to. He chose to use the weapon, and to do so by hitting someone in the head. Nothing that went before mitigates this.

[36] The second case is Brown v R.^[21] The appellant and a friend took the appellant’s former partner, the mother of his children, for a drive late at night. In the course of the drive the appellant seriously and sustainably assaulted the complainant. The complainant acknowledged that she had got angry and slapped the appellant when she saw he had “hickies” on his neck. She had told him that he would “never see his children again”.
[37] The District Court Judge in sentencing held that the behaviour did not reach a threshold of provocation which could mitigate an adult male punching a female complainant in the face and continuing that assault. The Court of Appeal agreed.
[38] We turn now to the facts of the present case. On reflection, we do not consider that they can engage s 9(2)(c) to any material extent.
[39] First, while the victim conduct with which s 9(2)(c) is concerned need not necessarily be either unlawful or deserving of censure, adults are entitled to choose with whom they reside and relate. A transfer of affection cannot of itself mitigate a violent retributive response by a disappointed former partner, however distressing the circumstances. Only in quite exceptional cases might it be otherwise. Perhaps, where the reaction was essentially instantaneous and the product of a complete loss of control. And as we noted, in such a case it does not justify the response, but may generate a modest discount on the sentencing starting point.^[22] In any event, this was not such a case.
[40] Secondly, Mr Wairau submitted that the relevant provocation here was not Ms Malton’s transfer of affection, but the denial of contact with his children. It is true that Mr Tiuka was now housing those children. But there was no suggestion on the evidence that Mr Tiuka had made arrangements for the return of the children to Mr Wairau, and then reneged. Any arrangements made were between Mr Wairau and Ms Malton, and it appears likely that there was a misunderstanding between them.^[23] In relation to the wounding charge, we do not think Ms Malton’s perceived conduct can be attributed to the victim Mr Tiuka. Nor, given the number of people apart from Ms Malton residing at Mr Tiuka’s house, is it really material to the aggravated burglary charge.
[41] Thirdly, we accept that the actions of Mr Wairau, at least initially, were the consequence of a state of profound despair when he found that his children were not, after all, to be returned to his care before Christmas. We understand that despair. But this event cannot be surgically detached from what went before: the gradual loss of Ms Malton’s affections to Mr Tiuka over the course of six months; the steps Mr Wairau had taken to end that new relationship; and Ms Malton’s departure, with the children, three days before. In his written submissions Mr Snell had had to accept that this was, at best, a “slow burning” provocation. In those circumstances, we are bound to place less weight upon it, because Mr Wairau had other options, and the opportunity (not least during the three-hour journey by car and foot from his house to Mr Tiuka’s) to reconsider what to do about the children. Plainly other options existed apart from stabbing the man now sheltering them.
[42] Finally, the presence of those options and the gravity of the stabbing were altogether out of any proportion to Mr Tiuka’s actions, particularly in relation to the children. We do not consider it would be right to mitigate the offending in these circumstances, in terms of s 9(2)(c).

Overall sentencing manifestly excessive?

[43] We agree with the Judge that the offending in this case fell within band 3 of R v Taueki.^[24] The starting point adopted by the Judge on the lead charges was slightly below the midpoint of that band, at 11 years. That starting point cannot sensibly said to be manifestly excessive. It was common ground at sentencing that a cumulative term had to be added for arson. Defence counsel had submitted that no more than 18 months should be added for that. That in effect is exactly what the Judge did in taking an overall starting point of 12 and a half years’ imprisonment.
[44] The full available discount of 25 per cent in terms of Hessell v R was given.^[25] No serious argument was advanced before us that any other personal mitigating factors applied in this case.
[45] The result is that the end sentence was within the available range, and was not manifestly excessive.

Result

[46] Appeal against sentence dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] An alternative charge to the attempted murder charge.

^[2] R v Wairau [2014] NZHC 2701.

^[3] No disputed facts hearing was sought.

^[4] The summary of facts states that the relationship between Mr Wairau and Ms Malton ended in June 2013. That is plainly wrong. The Judge had heard the evidence of the witnesses, and her factual account appears to be largely correct. We note that Mr Wairau did not give evidence, but he made a frank statement to a police officer, admitting the offending, which was read to the Court.

^[5] The Judge’s sentencing notes state that this occurred on 17 December 2013. There is no prejudice to Mr Wairau from the error.

^[6] R v Wairau, above n 4, at [4].

^[7] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [31].

^[8] R v Jury [2014] NZHC 687, R v Grey [2014] NZHC 789 and R v Komene [2013] NZHC 1844.

^[9] At [50].

^[10] Evidence Act 2006, s 9.

^[11] R v Wairau, above n 2, at [64].

^[12] Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

^[13] At [60].

^[14] At [60].

^[15] At [62].

^[16] At [63].