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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI 2007-032-5294
THE QUEEN
v
JOHN TAHANA
RAWIRI
GLENYS LYNETTE WRIGHT
AROHA GWENDOLINE WHAREPAPA
TANGINOA
APANUI
ANGELA RANGIAROHA ORUPE
Hearing: 14 August 2009
Counsel: G J Burston, P K Feltham and
K Grau for Crown
P V Paino for J T Rawiri
I M Antunovic and S B Antunovic for G W Wright
G King and P Mitchell for A G Wharepapa
L C Ord for T Apanui
V C Nisbet for A Orupe
Judgment:
14 August 2009
SENTENCING REMARKS OF SIMON FRANCE J
[1] The five offenders were convicted following a jury
trial of the manslaughter
of their niece, Ms Janet Moses.
R V JOHN TAHANA RAWIRI AND ORS HC WN CRI 2007-032-5294 14 August 2009
Facts
[2] In setting out these facts I intend to take more time than would normally be
the case on sentencing. I do so because
I cannot do fairness to the situation, nor
assist people to understand the sentencing response, unless a reasonably full context
is provided.
[3] John Rawiri Senior and his wife, Gwendoline had nine children. The family
base came to be the Wellington suburb
of Wainuiomata, and many of John and
Gwendoline's family settled there. The siblings themselves had children many of
whom remained
in the district and presently there is a further young generation
growing up there.
[4] The deceased, Ms Janet Moses, is one
of the many grand-children of John
and Gwendoline. She and her cousins spent a lot of time together, as did their elders.
The description
of a tight knit family is a very apt. Extended family members
provide the bulk of friendship and social interaction. Many who testified
described
their cousins as best friends and the ones they hang out with.
[5] The five offenders to be sentenced today are all
children of John Senior and
the late Gwendoline. Ms Moses' mother is their sister. John Rawiri is the
recognised head
of the family; it is clear from the trial he is much loved and
respected. Mrs Glenys Wright is the eldest of the daughters and is
the senior woman
within the family. The nature and responsibility of those roles undoubtedly changed
in 2007 when Mrs Gwendoline
Rawiri died. She was until her death the family's
rock, and plainly on whom people relied in situations such as the one which was
to
arise with Ms Moses.
[6] The essence of this case can be briefly stated, and then some expansion will
be required. The essence
is this. Around the time of her death two external factors
were plainly having an effect on Ms Moses. First and by far the most significant,
she had been particularly close to her grand-mother and was devastated by her death.
She struggled to cope with it, and several observed
that it was as if a part of her had
died also. Second, Ms Moses and her partner were experiencing problems, and this
was a further
stress.
[7] In the period subsequent to her grand-mother's death Ms Moses exhibited
signs of being depressed; she had a lowered
mood and was uncommunicative, both
things which were very out of character. However, in the week leading up to her
death the behaviour
changed for the worse. She became aggressive at times to
people to whom she would always have treated with the greatest of respect.
Her
thought patterns at times verged on the incoherent, and her sleep patterns became
impossibly disturbed.
[8] Specific incidents
occurred which greatly troubled her family on one
occasion she was given a special gift of pounamu by her other grand-mother, and
on
receiving it, she just stared fixedly at her grand-mother without speaking.
Throughout the week prior to her death, there were
prolonged periods of Ms Moses
staring blankly; on one occasion this coincided with her being found just standing in
the middle of the road.
[9] Ms Moses was cared for over this period by her family, under the
supervision of her aunts and uncles, many of whom were
the accused in this case.
They stayed with her in the flat occupied by her grand-father, and were with her day
and night. On one
evening Ms Moses became particularly upset, and seemed to be
either dazed or drowsy, or alternatively growling and roaring like a
lion. At other
times she rocked. Her conversation or utterances were bizarre and unconnected but a
common theme was drugs, a hit
and a battle.
[10] Dr Rhys Tapsell summarised her conduct over this period as lacking stability:
She continued to talk
about rather paranoid themes and she appeared quite
pre-occupied, distractible, and unresponsive either to those around her
or her
environment.
[11] Dr Tapsell's view is that Ms Moses was suffering from a mental illness; she
plainly had a disturbed
mood and many of the signs suggest an underlying psychosis,
which is where people lose touch with reality. Their perception becomes
distorted,
they see things that are not there, and they can hear voices. Paranoid delusions are
common. The person can often also
take on board and feel matters from the
environment around them; as I understood it this was to say the person might act
them out.
[12] That then is medical science's explanation for what was happening but this
case is about how the family, Janet's family,
perceived what was happening and
reacted to it. The first step was a common one for the Rawiri family on the Sunday
a family meeting
was called. Numbers are difficult to recall or gauge but possibly
twenty to thirty people were present, as people discussed what
might be wrong with
Ms Moses. She herself was there, off to one side, but still uncommunicative.
[13] A further meeting was
held on Monday. I run these two meetings together
because I do not feel sure as to exactly what happened at which, and when events
and ideas were mentioned.
[14] What is clear is that over the course of these two meetings it came to be
decided both that
Ms Moses was the victim of a makutu sometimes called a Maori
curse and that the reason this had happened was because other family
members had
stolen a lion statue some weeks earlier from a pub in Greytown. The statue had been
left at the grand-father's flat in
Wainuiomata. No doubt Ms Moses overheard some
of these discussions
[15] It is necessary here to pause and comment on why
a makutu might be thought
to be the cause. Some Maori people, as indeed do many other people, believe in the
existence of spirits,
which can be good or evil. Makutu is a particularised form of
such beliefs. It is the practice of deliberately imposing a curse on
a person. As I
understand the evidence at trial, in very general terms it was a belief that existed
more generally in Maori in centuries
past, but has declining acceptance. However,
there remain some or many Maori who still believe in its existence. The accused in
this
trial, and many of their wider whanau, fall within that group. They believe that
at other times in their lives other family members
have also been afflicted by a
makutu. On those occasions Nana Gwendoline supervised the process of dealing
with it.
[16] The
family, and these are of course generalisations, also have a firm belief in
the healing and protective powers of water. Again this
is a belief not unique to them
or to Maori. Water is obviously symbolic in many rituals, such as baptism for
example. Many members
of the family follow a practice of doing their waters,
which is an extended process of blessing themselves with water in a set order
of
movements. Some do it daily; others when thinking that they are going into
situations that might be unsafe.
[17]
Returning now to the events leading to Ms Moses death, the family came to
believe that the theft of the lion had led to Ms Moses being afflicted. Although she
had not herself been
involved, she was the vulnerable member of the family and the
one thereby cursed. The family consulted with a local tohunga who is
a senior
spiritual adviser. It is common ground that this was the proper thing to do.
[18] The tohunga confirmed that Ms Moses
was the victim of makutu. He said he
could see claws in her stomach and they had to be removed. He confirmed that the
theft of the
lion was the cause, tracing it to the fact that the theft had separated the
lion from its mate. His advice was that the lion must
be returned, and amends made.
[19] The next day the family took the lion back. It is indicative of their
commitment
to each other that ten cars made the journey. Many had taken Monday
and now Tuesday off work to be part of this and to help. Several,
including the five
offenders, were also to take the rest of the week off to continue to be with Ms Moses.
[20] The trip went
well and afterwards some improvement in Ms Moses was
noted. However, the tohunga said it had not been wholly successful. He could
still
see there was half a claw left in Ms Moses and the family would have to help to get
it out.
[21] In hindsight there
was a vagueness about this that was unfortunate. It seems
the tohunga meant for the family to stay with her and pray and comfort
her and it
would come right. The family seemingly thought it meant that he was out of ideas
and it was over to them to know work
it out.
[22] Whilst in some ways this could seem crucial to what happened next, in other
ways it was not. Because what the family
did, at least initially, was what the
tohunga meant. They stayed full time with Ms Moses. They prayed for her and with
her. They
noted what she was saying and they then spent anxious hours trying to
understand its meaning, trying to work out how they could help.
[23] On Thursday, however, things started to go wrong. Again within the
witnesses there was confusion over Wednesday
or Thursday, but what is clear is that
things with Ms Moses deteriorated. An unfortunate contributor to the unfolding
events was
the fact that the tohunga in question was himself physically unwell, and
required regular hospitalisation. Following his involvement
on the Tuesday he had
departed for a scheduled period of hospitalisation.
[24] It is apparent that over the Wednesday and Thursday,
the use of water
became more prominent. There was a shower incident where it was noted that
Ms Moses seemed concerned about cold
water. This was believed to be the demons
being scared of it, so there was a prolonged period of holding her in the shower. It is
important to note that at this stage it was not just these few family members who had
separated Ms Moses off. Ms Moses' father had
come to Wainuiomata when told of
Ms Moses ill-health. He was there when the shower incident happened and he
helped her in the shower.
Over these few days he asked Ms Moses on several
occasions whether she wanted to leave and she said no. Also at points on the
Thursday
Ms Moses paternal grand-father was also there. He left when concerned at
what was happening. He had tried to get another kaumatua
to have access to the
situation, but without success.
[25] Sometime on the Thursday night, things changed again. It is to be
recalled
Ms Moses had been repeatedly talking of battles, drugs and hits. The belief had been
that there was a family member in trouble
with drug dealers and some sort of attack
was imminent.
[26] However at some point about 7.00 p.m. when outside the flat, Ms
Moses got
up and said "they're coming" and that she would face them. Some say she said she
was not afraid to die. The family took
her inside and prepared to fight. It came to be
thought that the battle was not with people but with demons, or evil spirits, and
it
was a war they must win.
[27] At some point after that, Ms Moses had got up and walked around the room
pointing out where the evil spirits where. She was talking to John Rawiri
and saying
"there Papa, over there". He would respond by using a crutch as a taiaha and
seeking to ward them off.
[28] Sometime
around 11.00 p.m. or midnight, the use of water became prolific.
It seemed to have two roles. First, there were more than thirty
adults and teenagers
in this sealed room. They were praying and chanting, probably at times feet
stomping. It was undoubtedly
very hot and oppressive, so shirts were removed and
water was used to cool.
[29] At the same time water became the weapon to
fight the demons. It came to
be believed that both Ms Moses and a cousin were primarily afflicted. What
happened to them
will soon briefly be described but first it is to be noted that over
the evening and through the night hours of the morning it was
believed that many
family members were hit. All these people were treated with water in a bid to flush
the demons out. The senior
men, but primarily John Rawiri, would question the
victim, asking them to name names or other such things to check if they were okay.
[30] As for Ms Moses and her cousin throughout the night they were held down
and water was poured into their eyes and down their
throat. Ms Moses resisted
violently but of course this was interpreted as being the demons fighting back. At
times as many as five
or six people sat on her legs and arms, or held her head so that
water could be forced in. The idea was that she had to be made to
vomit so that she
would thereby vomit out the evil spirits that had possessed her.
[31] It is beyond doubt that for some time
madness reigned in that room.
Dr Tapsell spoke of group hysteria taking over, and that seems indisputable. There
was so much water
a hole was drilled in the floor to let it out.
[32] Around 7 or 8 in the morning Ms Moses died. The cause of death was
drowning.
The mechanics of drowning in such circumstances are not really known
to medicine and so the literature is sparse. What happened is
plain enough at one
level in that Ms Moses' airways became blocked. When water gets into them a
mucus develops that ultimately blocks
the airways unless expelled and the person
cannot breathe. Drowning is usually by full immersion, and the processes can be
described
reasonably accurately. Drowning caused by progressive intakes of water
whilst on dry land is not documented.
[33] In terms of
sentencing the position must be this:
Ms Moses died because water was forced down her throat against her will.
That
had happened many times during the night. On the last occasion it so
compromised her airways and lungs that she drowned, essentially
because
she could not get air through her blocked airways.
[34] When the family realised Ms Moses was in trouble they immediately
tried
CPR. It was unsuccessful. Authorities or help was not called because it was
believed that her cousin was still afflicted and
attention turned to saving her. It was
several hours before people were given access to the property.
The roles of the five accused
[35] At trial, nine senior members of the family faced charges of manslaughter.
They were the five who have been convicted, plus
two of their partners
Mr Horo Wharepapa and Mrs Georgina Rawiri and finally another sister
Mrs Gaylene Kepa, and her husband
Mr Alf Kepa.
[36] Mrs Rawiri was discharged at the end of the Crown case, and Mr Wharepapa
was acquitted on the basis of non-involvement
at the critical times. Two others were
acquitted. I do not go into the detail, but record that I generally agree with Mr King's
analysis
that the reason for different verdicts lies in the interviews and what those
accused said about belief in consent.
[37] In terms
of culpability I conclude that the accused did what they genuinely
thought was right. They were motivated solely be a desire to help
Ms Moses, and I
have no doubt they believed she was in serious danger because of the makutu.
However, they decided what had to be done without reference
to Ms Moses herself,
and without actually thinking about whether she wanted this sort of treatment to
occur.
[38] In terms
of respective roles, the Crown singles out Mr Rawiri and
Mrs Wright as the ones primarily responsible. They have the leadership roles
in the
family and were plainly in the forefront of what was happening through the night.
[39] The others were assisting but
were following and being guided by their
decisions.
[40] I do not understand either Mr Rawiri or Mrs Wright to dispute the
differentiation suggested.
[41] On behalf of Ms Orupe, Mr Nisbet suggests hers was a very minor role such
that initially a
discharge without conviction might be considered. There is no doubt
that the evidence against her was less strong. One witness spoke
of holding her chest
whilst water was being forced in, and she was plainly present around the time of the
final occasion when water
was forced in. In her own statement Ms Orupe said she
was holding Ms Moses' head whilst her sisters were flushing out her eyes. She
denied pouring water in.
[42] My assessment is that Ms Orupe's main role was one of comforting her niece
during this process.
That is not to suggest she was not rightly convicted as being
involved and as aiding what happened to Ms Moses but I accept hers
was much more
a peripheral role.
[43] Ms Apanui is submitted to have played a similar role. The evidence of her
involvement
and presence was much stronger, with many different witnesses
commenting on it. She herself said she was mainly focussing on Ms Moses'
eyes,
and helping to restrain. Ms Apanui accepted (interview, p 165) that she could have
put water into Ms Moses.
[44] Concerning
Mrs Wharepapa, the defence was advanced on the basis of
non-involvement around the crucial time. Ms Wharepapa in her video statement
did
not accept particular involvement and denied holding Ms Moses down. She
accepted she was present throughout. However,
three witnesses had seen her using
water on Ms Moses, and there were also descriptions of her holding Ms Moses
down, and doing things
to the eyes.
[45] I admit to an initial impression of a fuller role played by Ms Wharepapa but
having reviewed the material consider
that there is no reason to depart from the
Crown assessment in relation to her. I accordingly see Ms Wharepapa and
Ms Apanui
as both involved in the way advanced by the Crown, but in a lesser role
from that of Mr Rawiri and Mrs Wright. I consider
that Ms Orupe was more
peripherally involved, although present. My sense is, as Mr Nisbet submitted, she
was somewhat less engaged
in it all but was trying to comfort her niece and got
caught up in the family dynamic.
Personal situation of each offender
(a)
Mr John Rawiri
[46] Mr Rawiri is fifty years old. He lives with his wife, Georgina, and two sons.
In addition, a thirteen
year old grand-daughter spends much time with them. There
are two other children living away from home. He has been in steady employment
all his life, and is a valued employee at his current job. His continued employment
in my view says much about his undoubted good
qualities he left school when he
was fourteen, and has six times been made redundant, yet has pressed on with his
responsibilities
and been able to obtain other employment. Mr Rawiri has some
previous convictions, the most recent of which is sixteen years ago.
They are not
relevant to today.
[47] Throughout the trial the position clearly emerged that Mr Rawiri is the leader
of the extended
family. He is the oldest male of his generation, and is looked up to
by his siblings, their partners, and all the next generation.
He is looked up to with
genuine respect and love.
[48] The report writer notes that Mr Rawiri seemed seriously traumatised
by what
happened on the night, and had difficulty discussing it. I observe that I have no
difficulty accepting this. It is apparent to me that many of the witnesses,
many from
the younger generation, were likewise traumatised, and I venture to suggest may well
benefit from some appropriate counselling
and help.
[49] Concerning the offending, the report writer notes that Mr Rawiri said that he
and the others were acting out
of a sense of love. They were trying to help his niece
rather than anything else he and the other family members have been portrayed
as
doing. He is reported as being dismayed by the verdicts. He explains what
happened as being a spiritual thing. He is
noted as repeating in the interview
something that was said several times at trial:
You had to be there to understand what
happened.
[50] On sentencing, Mr Paino emphasises that his client's culpability should be
seen in light of his beliefs. Once
it was believed that Ms Moses was affected by
makutu, then his perception was that outside assistance was not an available option.
Rather the family did do the right thing within this belief system by consulting with
the appropriate person the tohunga.
[51]
The case is said to be unusual because throughout Mr Rawiri and others were
trying to do the right thing, and were motivated
solely by a desire to help a loved
niece.
[52] Mr Paino submits a term of imprisonment is wrong in principle where the
offender
had an honest belief that what he was doing was right. Prison would not
achieve anything, and deterrence by imprisonment directed
at a cultural belief is
ineffective.
[53] Accepting some penalty is likely, Mr Paino urges there be an outcome that
allows
Mr Rawiri to continue in employment. Home detention is preferred to
imprisonment, but is submitted to be equally wrongly
focussed. Something that
allowed continued community involvement, and contact with his extended family, is
preferable.
(b) Mrs
Glenys Wright
[54] Ms Wright is the oldest member of her generation, and is the senior woman
in the family. She and her husband
have lived at the same address for thirty years.
Presently residing with them are three adult children, one younger child, a son-in-law
and a grand-daughter. She has generally been in full-time employment, but has not
worked since the events that claimed Ms Moses'
life.
[55] Ms Moses' mother, Ms Olivia Rawiri, was contacted by the report writer.
She spoke lovingly of her sister Glenys, noting
her to be a role model. She is a
person who Oliva looks up to, and she could not wish for a better sister. I record
these observations
for their own value, but also of course because they provide
another context for today's sentencing. There are no victim impact statements.
Consistent with all the evidence I heard at trial, the resolution of any issues
stemming from what happened has been managed within
the family. Plainly Ms
Moses' mother holds no resentment, and attaches no blame, to her sisters and
brother. The family bonds remain
strong.
[56] Ms Wright advised the report writer that she found it hard to accept the
verdict since she had been co-operative
and truthful throughout. She also
commented on the inability of those who were not there to understand, and that it felt
like the demon wanted to wipe out the whole family. Mrs Wright is sad and gutted
over the loss of Ms Moses who she describes as a
beautiful humble person.
[57] On her behalf Mr Antunovic referred to the circumstances as I have already
described them. He emphasised
the on-going dilemma presented by the belief that
there was still a claw left in Ms Moses. He emphasised the lack of appreciation
in
anyone that they were threatening Ms Moses' life. He emphasised that the loss is
truly the family's, something they will live
with forever. He submitted the impact on
them both as a family and individuals is profound, and will affect their lives always.
[58] Mitigating factors were noted to be co-operation with the police, a low risk of
re-offending, remorse, family forgiveness and the general motivations behind
what
happened. He notes the total absence of alcohol or other drugs as a contributing
cause. Letters in support have been filed.
(c) Mrs Aroha Wharepapa
[59] Mrs Wharepapa is forty-seven years old. She lives with her husband. They
have three adult
children who live away from home. She has been in constant
employment all her working life until these events in late 2007. They
coincided with
financial difficulties for the company that employed her, and she resigned at that
point.
[60] Mrs Wharepapa
commented to the report writer on the impact the death of
her mother, which occurred not long before Ms Moses' death, had had on
the family.
Mrs Wharepapa continues to grieve the death of her loved niece.
[61] Like her sister Mrs Wharepapa cannot accept
the verdict noting that she had
been honest and co-operative from the outset. She was shocked by the verdict and
believed her proximity
to Ms Moses at the time of her death explained why the jury
held her guilty.
[62] Mrs Wharepapa explained that at the time
when Ms Moses was ill the family
did not know who to turn to. They came together to help each other. Of the day in
question Mrs Wharepapa
notes her confusion about what unfolded, and the
confusion at the time about what Ms Moses was doing, and saying. Mrs Wharepapa
was
feeling exhausted and had a sense of utter chaos unfolding. She noted that the
family had only recently been able to talk about matters
and start to repair.
[63] On her behalf Mr King submits a punitive sentence is not required. He
suggests a sentence involving
home detention or community detention, with
supervision is appropriate as meeting the education issues that the case has
highlighted.
[64] Mr King submits that factors relevant to culpability include:
a) the clear reality that the offenders
loved Ms Moses, and believed they
were acting in their best interests;
b) the fact that the family
has suffered a great loss and will continue to
live with that;
c) the compelling evidence that the
victim, Ms Moses, believed she was
possessed;
d) the evidence of Dr Tapsell about the effects of
social isolation, sleep
deprivation and psychogenic illness.
[65] The situation was that the family thought
they were doing the right thing, a
belief reinforced by Ms Moses own behaviour such as when she was pointing out to
those present
where the demons were in the room.
[66] Mr King emphasises that these observations are not to challenge the verdict,
but rather
that where the law draws the line is not necessary an accurate barometer of
culpability. Mr and Mrs Kepa, who were acquitted,
had in their statements
emphasised their belief in consent. The others had tended to focus on their belief in
the necessity of what
they were doing. Whilst a legal difference, against a
background of a victim who is not consenting, the gap in moral culpability
is very
little.
[67] Mr King noted not only the loss they have all suffered, but their exposure to
the public has been high
in relation to matters that have exposed them to ridicule.
(d) Ms Tanginoa Apanui
[68] Ms Apanui is forty-three years
old, the seventh oldest of the siblings. She is
presently single and has three of her six children living with her, as well as some
grand-children. Mrs Rawiri, Ms Moses' mother, confirmed to the report writer that
Ms Apanui has struggled to cope since the verdict.
[69] Ms Apanui is presently unemployed, having resigned shortly after being
charged with her niece's manslaughter. Ms Apanui
said that they were all trying to
help Ms Moses, and never envisaged hurting her in any way.
[70] On her behalf Ms Ord focuses
on the purposes of sentencing on this
occasion. It is noted that there is victim forgiveness, and that the need for general
deterrence is questionable in
circumstances where the offending is unique.
[71] Her client is forty three years old with a largely offending free past.
She is
traumatised and remorseful for what happened. She mourns the loss of her niece
every day. She is the youngest member of the
family who was charged, and had a
following role. She was not a decision-maker. Like the others her motivation was to
make her niece
better. There was no appreciation that the actions might kill her
niece. Ms Apanui was one of the first to react to Ms Moses situation
by trying to
free her tongue and perform CPR. Letters in support have been filed.
(e) Ms Angela Orupe
[72] Ms Orupe
is the fourth oldest of the siblings. She has three adult children,
and three grand-children. She separated from the father of her
children many years
ago, and has been with her current partner for ten years. Together they built a house
in 2007, and now live with
two other people who assist with mortgage commitments.
[73] Ms Orupe has been in employment for her whole working life. She
lost her
job as a result of the present conviction, but her partner's business has been able to
employ her. The financial viability
of their situation is dependent on her continuing
to earn.
[74] The report writer notes Ms Orupe continues to assert her
innocence. The
report notes:
She appeared to have great difficulty in describing in even limited detail the
events
that ultimately led to the death of her niece. However she did speak
of a situation where "no-one had control over their actions,
it was mad and
ugly" and "things changed on the Thursday" and "went crazy". It was the
worst day of her life and she
was visibly upset and distressed when speaking
about the death of her niece.
[75] On her behalf Mr Nisbet submits in his
submission that Ms Orupe had a
lesser role, has been discussed.
[76] Mr Nisbet emphasises the impact the entire process has had
on Ms Orupe and
others, and submits the situation the family finds itself in, its attributable to their
genuine and firm belief in
"makutu". It is noted that any penalty would be trite
compared to the loss of their niece, and the suffering already endured. Financially
the trial has been a significant burden.
The Crown submissions
[77] The Crown has provided the Court with decisions in other
cases both from
New Zealand and overseas. I record my appreciation in relation to that.
[78] In New Zealand the only comparable
sentencing case is R v Lee where a
pastor had performed an exorcism on a church member. The process had resulted in
cracked ribs,
and then manual strangulation. The pastor had acted in this way before
so had awareness of the risks of pressuring the neck, although
no-one had previously
died. He was a church leader who had many followers, who by his actions had
endangered them and placed hem
in legal jeopardy. A sentence of six years was
imposed.
[79] In Australia a case with some similarities to the present saw terms
of two
years jail imposed, but the sentence was suspended so the offenders did not serve it.
[80] In the present case the Crown
notes the following aggravating features:
a) the violence used on Ms Moses;
b) the loss caused to her
children and family;
c) the method of death involved cruelty;
d) the vulnerability of the victim who
was mentally ill.
[81] Overall the Crown submits the paramount considerations were the sanctity of
life especially in the case
of the mentally unwell, and deterrence of those who act
this way in furtherance of misguided and ill-informed fanatical beliefs.
It is noted
that the offenders continued to refuse to accept responsibility for the death, and in
this sense remorse is lacking.
[82] It submits a starting point for John Rawiri and Glenys Wright of five to six
years, and one of two to three years for the other three offenders.
[83] Mr Burston identified
three factors that arguably made this case worse then
Lee the length of time over which the violence extended, the fact that the
victim in
Lee consented and here the victim was mentally unwell.
[84] However factors that I see as making this case different
are that Mr Lee was
the pastor of a church who performed these exorcisms as part of a ritual or settled
practice. What he did (pressure
on neck) was more obviously dangerous and he had
knowledge of possible consequences. Most importantly the whole context and
motivations in the two cases, and the relationships of the participants, are different.
Sentence
[85] I am grateful to all
counsel for their submissions.
[86] The situation that is being dealt with today, at least as I see it, presents some
unique
dilemmas. The primary dilemma is the starting point from which one
critiques or assesses what happened. Does one stand in the
shoes of the accused,
armed as it were with their deeply held beliefs and convictions, and their fears for
Ms Moses' life? Or does
one stand in the shoes of the public who are no doubt
amazed and horrified that such things can still happen today. The end result
of the
sentencing process varies markedly based on where one starts.
[87] On this occasion I consider it is proper to assess
the matter from the mindset
of the accused. I do so because I consider that based on the evidence I saw, anything
else would be wholly
artificial. Further, I do not see any great need for deterrence
it is a unique case, and there is no sense others might act likewise.
The Crown
highlights that many of the offenders do not accept they were wrong in what they do
and that is something that should influence
the sentencing response. I accept that it
gives rise to concern in terms of the future but the events that came together here are
unlikely to be repeated. Further there is no doubt a degree of wilful blindness there,
and other means can be employed to address
these things. I do not consider that
factor requires a punitive response.
[88] I consider it important to state that in my
view this was not a situation of a
killing that was part of a ritual. It is easy to attach labels but they can mislead. There
was
no pre-planned ritual here and it was not a group of fanatics pursuing some
warped ideology with no regard for others, nor was it
the playing out of fanatical
beliefs.
[89] What happened was that a group of people who hold a deep belief in the
deadly
power of evil spirits ended up in a situation they could not handle:
a) they feared for their niece's life;
b) they had tried taking advice, and following it, but it had not worked;
c) they believed that non-believers
in makutu could not assist;
d) they saw their loved one deteriorating.
[90] I will return to this because
I certainly am not suggesting there was not fault
or responsibility but in my view one should be careful with easy classifications.
Ms Moses died because a group of sleep deprived people isolated themselves from
the opportunity of help or advice, and fastened on
a method of helping someone that
led to her death. It was a death that was wholly unintentional and to them wholly
unexpected. There
was no realisation of danger. There should have been, but there
was not. The method used was invented at the time and undoubtedly
represents a
tragic confusing of different beliefs and practices.
[91] On a related topic, I want to comment on the topic of
culture. Whilst the
offenders' culture provided a context, it would equally be wrong to over emphasise
it, and equally wrong for
the offender's to hide behind it and see all that has
happened as an attack on that culture. That would also be far too easy and
simplistic.
[92] Culture played a role in that it led Ms Moses' family to believe she had been
afflicted by makutu. I am sure that Ms Moses herself also believed she was cursed.
Probably her mental health contributed to that belief, but the reality is that had it
been another family member afflicted, she like
the others would have accepted
makutu as the reason.
[93] However what happened on the Thursday night was not the acting out
of any
cultural or religious practice. Expert witnesses were clear they have never heard of
such actions and their evidence was compelling.
[94] A third general topic I should address is that raised in the Crown's
submissions, namely the sanctity of life. It is always
of pivotal relevance. It is why
there can be no criticism that a prosecution was brought. A young woman died in
horrible circumstances
in the presence of numerous adults who were keeping her
isolated from the world. What else was to happen other than for there to
be a proper
consideration of what went on and whether there was criminal responsibility?
[95] Although the sanctity of life is
paramount, society's response to the loss of
that life can and must vary according to the circumstances. Manslaughter involves
so
many situations which vary. It is not unique to have a manslaughter conviction
where the offender's aim had been to help the victim.
In New Zealand, for example,
Dr Ramstead was found guilty of manslaughter for negligent surgery. He was
sentenced to a six
month jail term which was suspended.
[96] I mention these matters not to in any way minimise the value of importance
of life,
and the seriousness of any conduct causing death. But the reality is the
responses to such events vary, normally always in relation
to the assessment of the
culpability of the offender, including what why they did what they did. Finally, as
regards this aspect,
I do note that the fact of a conviction for manslaughter is
important. Of and in itself it makes a statement.
Culpability
[97]
Having decided to assess matters from the viewpoint of the offenders' belief,
it is important to identify where the culpability
lies:
a) first, it lies in the failure to seek outside help. I understand that you
believed there were
no such options, but that is wrong and it is
culpable on your part. If you listened to the evidence of Dr Tapsell
you would realise that there is an awareness of these issues, and
strategies within mental health agencies
to address it. Besides, like all
of us, you might have been wrong. Even if makutu exists, Ms Moses
might not have been an example. I know the tohunga confirmed it,
but when that did not work none of us have
the right to ignore other
options in relation to a sick person in our care;
b) second, you did not seek
other help from within your community.
When Tuesday proved unsuccessful you internalised the issue and
closed others out;
c) third, you made this whole use of water up. No-one has suggested
there is
a basis for it in any religion or culture. Certainly water is
used, but it is not force fed down someone's throat.
There was no
basis to think that forcing water continually into Ms Moses would rid
her of the curse;
d) fourth, what you did killed Janet. Even within your beliefs, even
accepting if you want that she
was the victim of a makutu, it did not
kill her. She drowned, and it will not be known if something else
might have worked had you tried to get other help;
e) fifth, you carried on doing it to another person even
after Ms Moses
had died. I know that shows how genuine you were in your beliefs,
but it also shows
how close minded you had become;
f) lastly, you exposed the younger generation of your family to a terrible
event, and involved them in it. They look
up to you, they respect you,
and on this occasion you let them down, badly.
The sentences
[98] A common
response in other jurisdictions to this type of situation has been
the imposition of a suspended sentence of imprisonment. The fact
of imprisonment
sends the necessary message, but the suspension of it allows recognition of the
reduced culpability of the individual.
That is not an available option here, and means
that I must confront head-on the key issue of whether any of you should serve time
in jail.
[99] I have concluded that the answer is no. I understand that to some that may
not seem an adequate response to
what happened, but my reasons are these.
(a) the offending
· mistakes were made but you did
not intend to harm Ms Moses,
you did not realise you might harm her or kill her, and you were
trying to save her;
· you failed to seek help when Ms Moses deteriorated, but
importantly you did initially seek help and you did exactly what
you were told;
· the
death did not occur in the course of any ritual, or because of
some fanatical beliefs. It was the product
of a tragic and
somewhat random coming together of circumstances;
· your capacity for rational judgment
on the night was undoubtedly
greatly affected by sleep deprivation.
· It is not to excuse but the events were
in part the product of
several features coming together in timing: the recent death of
Mrs Rawiri, the theft
of the lion, Janet's mental ill-health and the
way in which her utterances and actions were capable of
reinforcing
the family's view, together her own belief that she had
been cursed, the confirmation by the tohunga of makutu being the
cause, the confusion over his advice on the Tuesday night, his
subsequent unavailability through hospitalisation,
and Janet's
deterioration after that time.
(b) the offenders
· you are all parents who have worked to provide
a good
environment and to bring up your families. You have most of you
a blemish free past;
· you have
kept in employment in circumstances of difficulty over
the years, and have sought to provide for your families in a way
one always hopes parents will;
· the level of co-operation was very high. All members of the
family
provided interviews. Several of the younger ones who had
been present gave video interviews saying what happened. They
were open, and these videos provided the bulk of the evidence
against the accused. The videos were played by
consent and
without any challenge; no witnesses had been required to testify at
depositions;
· the accused
all made statements. What was remarkable was the
similarity in accounts, and again the lack of any guile. Brother
and sister openly acknowledged the role not only that they had
played but also that their siblings and their children
had played.
Some of the accused were exhausted at the time of these
interviews but still
co-operated and did their best;
· there was absolutely no attempt to hide things in any way;
(c) other
circumstances
· Ms Moses was a loved member of the family whose loss has been
devastating. The
family have reconciled over events, and Ms
Moses mother has spoken in strong support of her sisters. No one
will suffer more than the accused and their family;
· the events of that night were traumatic and will linger, I am sure,
with many if not
all who were present. It will be an on-going
cost;
· I think it may well be the case that your
understandings and
knowledge about those aspects of your culture are incomplete;
· and given
what has happened here I think society does have the
right to require to attend and listen, and be open to what
others are
saying;
(d) conclusion
· in my view the answer here lies in a mixture
of penalty and
supervision.
[100] The sentences I impose will involve community based sanctions, and
supervision
including attendance at certain programmes. They will be higher for
Mr Rawiri and Mrs Wright to reflect their greater role.
[101]
Mr John Rawiri and Mrs Glenys Wright:
a) on the charge of manslaughter I sentence you each to:
i)
six months' community detention. The curfew will run daily
from 9.00 p.m. to 6.00 a.m. The curfew will
commence
Friday, 28 August 2009. The curfew addresses are:
94 Coast Road, Wainuiomata
for Mr Rawiri;
47 Mohaka Street, Wainuiomata for Mrs Wright.
Both of you must attend
the Lower Hutt Probation Service
next week to confirm arrangements.
ii) 300 hours community work;
iii) supervision for twelve months, such supervision to include
three special conditions:
· to undertake such counselling sessions or psychiatric
assessment as directed, the purpose
of this condition being
to address on-going issues arising from the events of
12 October
2007;
· to undertake Tikanga Maori programmes, or similarly
related cultural programmes
as are considered suitable by
the probation officer;
· to undertake any other
educational programmes
determined by the Probation Officer.
[102] Mrs Aroha Wharepapa and Ms Tanginoa
Apanui:
a) on the charge of manslaughter, I sentence you each to:
i) 300 hours community work;
ii) supervision for twelve months, with the special conditions
that:
·
you undertake any psychiatric or counselling assessments
as directed, the purpose of this being to address
any
on-going issues arising from the events of
12 October
2007;
· to undertake Tikanga Maori programmes, or similarly
related cultural
programmes as are considered suitable by
the probation officer.
[103] Ms Angela Orupe:
a)
on the charge of manslaughter, I sentence you to:
i) 150 hours community work;
ii)
supervision for six months, with the special condition that you
undertake any psychiatric or counselling
assessments as
directed, the purpose of this being to address any on-going
issues
arising from the events of 12 October 2007.
__________________________
Simon France J
Solicitors:
G J Burston, Luke Cunningham
& Clere, PO Box 10357, Wellington, email: gjb@lcc.co.nz
P V Paino, Paino & Robinson, PO Box 40955, Upper Hutt, email: paul@paino-robinson.co.nz
I M Antunovic, Principal, Wellington, email: antunoviclegal@woosh.co.nz
G King, Barrister, Lower Hutt, email: greg.king@paradise.net.nz
L C Ord, Ord Lillico,
PO Box 10909, Wellington, email: letizea@ordlillico.co.nz
V C Nisbet, Principal, Wellington
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