R v Vakauta [2016] NZDC 9670 (24 May 2016)

Last Updated: 5 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2014-004-007721 [2016] NZDC 9670

THE QUEEN

v

_{BENSEMANN VAKAUTA}

Hearing:	24 May 2016
Appearances:	F Culliney for the Crown E Priest for the Defendant
Judgment:	24 May 2016

_{NOTES OF JUDGE G A FRASER ON SENTENCING}

[1] Mr Vakauta, you are for sentence on a charge of wounding with intent to cause grievous bodily harm. You are here for sentence because you were found guilty by a jury on that charge on 14 December 2015.

[2] What happened on the evening of 1 August 2014 was that you were at your home address with one of your two flatmates, the complainant. You made the complainant aware that there was some leftover food in the microwave and you offered it to him if he felt hungry and he declined. At 4.45 am he left the apartment to get a coffee. He returned. You were awake and asked him if he had eaten the food that you had offered. He told you he had not. You stated that he should eat the food. He left the apartment again a short time later. At 12.30 on 2 August he returned to the apartment, went into his room and locked the door behind him. At

2.00 pm or thereabouts you began knocking loudly on his door yelling at him, “Open

_{the fucking door.” Before he could reply you kicked the bedroom door in causing}

R v BENSEMANN VAKAUTA [2016] NZDC 9670 [24 May 2016]

the door to shatter and the lock to break. You yelled at him, “What the fuck’s going on, you think you're better than me, isn't my food good enough for you?” There was then an altercation where there was punching and kicking to the complainant and that lasted for a period of time. You then left the complainant’s room and returned to your bedroom. The complainant then left his bedroom and made his way towards the front door when you approached him again and held the front door shut. You said, “Where are you going, who are you going to see, I should get my knife and I should stab you with it.” You walked into your room and emerged with the knife. You approached the complainant and stabbed him on the left side of his back just above his kidney. You then returned to your bedroom and you placed the knife before you decamped the scene on foot. The complainant then made his way out of the apartment where he was found by other occupants in the building and an ambulance was called.

[3] As a result of the assault the complainant suffered a stab wound to the left side of his back which penetrated his aorta. There was also other bruising to his body and abrasions to his head. Those further aspects being attributed to the fracas earlier in the day. The complainant subsequently underwent emergency surgery. You surrendered yourself later in the day to the police, in fact on 3 August and you acknowledged the earlier punching and kicking, denied having stabbed the complainant. You suggested that the complainant had stabbed himself and planted the knife in his room after climbing through a window of the exterior of the building.

[4] I note previous convictions Mr Vakauta for violence in 2013. A sentence for which you received a home detention sentence. On review it was replaced with a seven month sentence of imprisonment. I also note the breach of home detention which you have been convicted for.

[5] The Probation reports recommend imprisonment as it must. What is of concern is that you continue to deny the stabbing. The probation report says you assign a significant portion of the blame to the victim saying to probation, “He has a history of mental health and is an alcoholic, he lunged at me first and I just reacted.” Also of concern is, “His remorse appeared to be more self serving and he did not

present as being overly concerned with the injuries the victim sustained during the attack.”

[6] Background circumstances are also set out in the probation reports. I accept that you are someone with potential. I also have references before me. Some of them suggest this behaviour is out of character.

[7] There is a victim impact statement which sets out the victim’s views where he says at the time of the incident, “I was so worried and scared I couldn't do anything to get away, I had no escape, I was terrified when the punching and kicking started, I just wanted it to end.” He then comments about the fact that he was so scared when you said to him, “You deserve a knife, I'm going to get the knife,” and he recounts the point where you walked out with the knife. He said at that point he thought he was going to die and had resigned himself to that fact. He then concludes his victim impact statement by saying you need to be held accountable for what you have done so that you do not do it to anybody else.

[8] I have a mental health report which indicates that you are not suffering from any psychiatric mental illness and that in terms of sentencing, should it be appropriate, there should be conditions in regards to alcohol and illicit substances and other programmes including anger management should be referenced if at all possible.

[9] The Crown submissions articulated to me today also in written form indicate a start point in the range of eight to nine years with an uplift of three months for previous and a minimum period of imprisonment. The Crown submits that the R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) sentencing factors are the extreme violence, the use of a weapon, the victim’s vulnerability, premeditation, serious injury and extent of harm and also attacking the head. The Crown submit the present offending falls at the upper end of band 2 of R v Taueki and has submitted authorities to support that including decisions of Lewis v R and Savour v R. The Crown acknowledges that there are distinguishing features as there always are in relation to authorities submitted for sentencing. The Crown submits that the authorities recognise a range available to the Court of between eight and nine years. In regards to the minimum

period of imprisonment the Crown submit that a standard period without a minimum period of imprisonment would be insufficient to hold you accountable for the harm that was done, to denounce your conduct, to deter you from committing a same or similar offence and protecting the community from you. The Crown say a 50 percent minimum period of imprisonment should be imposed.

[10] The defence have also filed submissions and made oral submissions today in support of those. Ms Priest submits that the aggravating features in this case are serious injury, limited victim vulnerability, limited premeditation. Ms Priest has also made reference to various authorities to support a start point of four to five years including Leonard v R, Boot v R, Flavell v R, R v Wharewaka, R v Wright and distinguished R v Lewis.

[11] What is clear from the various authorities that have been submitted by Ms Priest that they all range through with a start point of between three years nine months and six years in the case of R v Wharewaka. Ms Priest submits that the start point should be between four and five years acknowledging that there was a serious injury but from a single blow and there has been no long-term disability. As I have said previously limited premeditation and limited victim vulnerability. Ms Priest submits that it is not appropriate for an uplift in these circumstances, particularly recognising that a previous sentence which would be relied upon by the Crown for an uplift involved a non-custodial sentence in the first instance elevated to a sentence of imprisonment on review.

[12] The mitigating factors are submitted as Mr Vakauta being a foreign national in prison, his efforts at rehabilitation and aspirations for the future. In addition to that in regards to the minimum non-parole period Ms Priest submits that the offending does not warrant the imposition of a minimum period of imprisonment and that in this instance the offending is not so serious that release after one third would constitute an insufficient response. In her submission there are no special reasons warranting the imposition of an MPI, and that parole will only be granted when the Parole Board is satisfied that Mr Vakauta ought to be released.

[13] Folding all of that into a sentencing clearly you need to be made accountable for the harm that you have done and I take into account obviously the interests of the victim. For serious violence a sentence must be denunciating and deterrent and one which also takes into account the sentencing principle of protection of the community. The least restrictive outcome is a sentence of imprisonment.

[14] In terms of the R v Taueki factors on the R v Taueki terms in this instance there was not extreme violence and I agree with Ms Priest in that regard. There was one strike using a knife and whilst there were life threatening injuries and in the background some punching and kicking on a R v Taueki reckoning this was not extreme violence. It was serious violence though, involving the use of a lethal weapon. R v Taueki says the use of a lethal weapon such as a firearm or a knife is a serious aggravating factor and that the more lethal the weapon used the greater the aggravating factors will be. I accept that that overlaps with the attack to the head and it is important not to double count aggravating factors. I see those two together as one single factor.

[15] There was limited premeditation. The fact that you went back to your bedroom and uplifted the knife in circumstances where you could have done other things rather than that indicates premeditation but it is limited to that extent. It was serious injury recognising that the victim’s aorta was lacerated, there was serious blood loss, there was potential for it to be fatal. I acknowledge again limited victim vulnerability.

[16] In terms of the aggravating features relevant to you personally, is the limited previous violence involving the conviction in 2013 for the assault with intent to injure and assault on police.

[17] Your age at the time of the offending puts you at the outer limits of the R v Churchwood factors and I acknowledge the impact of imprisonment for what might be loosely described as a foreign national. The isolation that no doubt will occur whilst you are in prison. I acknowledge credit for the significant rehabilitative efforts that you have made since you have been on remand and I have been presented

with certificates which are in excess of 10 for work that you have done to better yourself and to rehabilitate.

[18] I am in no doubt that the offending clearly sits within band 2 of R v Taueki having a number of the aggravating features as set out and articulated by me therefore the sentence range is five to 10 years.

[19] The authorities cited by both the Crown and defence have been helpful in identifying the start point but all of the cases are distinguishable by their circumstances but I agree are helpful in establishing the range.

[20] Mr Vakauta, this was serious violent offending which could easily have had fatal consequences. You had obviously built up animosity towards the victim over a period and in an uncontrollable fit of rage you behaved as you did. What followed was unconscionable. The complainant was left lying at the bottom of the stairs bleeding and was but a short time away from death. I have struggled with the start point but I recognise that R v Wright and Flavell v R are probably of most assistance in this case recognising the significant distinguishing features from the two Crown authorities, Lewis and Savour. Obviously the lead up violence aggravates the fact but despite that it sits at the bottom end of band 2 which overlaps the top end of band

1 in any event. I do not see any basis to uplift for previous. I agree with Ms Priest that initially a sentence attracting home detention and then a review with a limited period of imprisonment does not warrant an uplift. There are no other relevant convictions. I discount the sentence for your age, as I have said for the outer edge of what are called Churchwood factors and the rehabilitative work that you have done in prison and the extra difficulty for you, as I say, being loosely seen as a foreign national. That sees a deduction from the sentence of six months.

[21] I see the start point sentence here as one of five years. The end sentence recognising the discounts is four years six months.

[22] The Crown have sought a minimum non-parole period submitting that the parole period of one third despite your age would be insufficient in the circumstances to hold you accountable for the harm done, denouncing the conduct

and deterring you and it is also necessary to protect the community recognising your previous conviction.

[23] I acknowledge what is said in the authority of R v Taueki that in cases of serious violence where denunciation and deterrence are both important sentencing values and where protection of the community from the offender may well be a relevant factor, it can be expected that a minimum period of imprisonment will not be rare or uncommon. I have determined in this case that there is nothing that sets this offending apart from others of its type. I have determined that the offending is not so serious that release after one third would constitute an insufficient response in the eyes of the community so that a minimum period of imprisonment is required to confer a degree of reality on the sentence and the overall outcome. I conclude there are no specific features of this offending which in my view would warrant a minimum non-parole period.

[24] That being said the sentence imposed in this case is a sentence of four years six months.

G A Fraser

District Court Judge