R v Muliipu [2012] NZHC 2733 (18 October 2012)

Last Updated: 18 October 2012

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-020-004071 [2012] NZHC 2733

THE QUEEN

v

SIO MULIIPU

Counsel: C R Walker for Crown

E J Forster for Prisoner

Sentence: 18 October 2012

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Muliipu, as you know you are to be sentenced on seven matters. You pleaded guilty at the commencement of your trial to one count of injuring with intent to injure. The jury found you guilty on two other counts of injuring with intent to injure, one count of assault with a weapon, two counts of kidnapping and one count of wounding with intent to cause grievous bodily harm.

[2] In sentencing you I have to consider whether or not to impose a sentence of preventive detention. For reasons which I am going to explain a little later, I have

R V MULIIPU HC NAP CRI-2011-020-004071 [18 October 2012]

decided to impose a long finite sentence, together with a long minimum period of imprisonment. I will not be sentencing you to preventive detention.

[3] In sentencing you I will first identify the starting point for your sentence. I am then going to be adjusting that starting point upwards to reflect the overall gravity of your offending, and your previous convictions.

[4] There is nothing in your circumstances which enables me to reduce your sentence to recognise factors that are personal to you, or to reflect other factors that are often able to be used to reduce a sentence.

[5] I will then explain the minimum period of imprisonment which you must serve. I will finish by explaining why I will not be sentencing you to preventive detention.

Your offending

[6] Your offending relates to incidents that occurred on 20 November 2011,

23 November 2011 and the evening of 5 December 2011 and morning of

6 December 2011.

[7] Your offending on 20 November 2011 involved you assaulting your partner, and the mother of your twins, the complainant, by using a vacuum cleaner as a weapon against her. This offending occurred after you had been drinking heavily and at a time when you and the complainant were facing serious pressures over the care of your twins.

[8] Your offending on 23 November 2011 occurred when you assaulted the complainant with intent to injure her after you had again been drinking and at a time when your twins had just been removed for their care and protection.

[9] Your offending on the night of 5 December 2011 and morning of 6 December

2011 was even more serious. By that stage the complainant was living in a Women’s

Refuge Centre. It appears she was continuing to see you and arrangements had been

made for you to meet her on the evening of 5 December 2011. You allowed yourself to be diverted by going drinking with friends. When you arrived at the Women’s Refuge Centre you entered the premises and together with your brother, went upstairs to a bedroom occupied by the complainant and two other young women. You forced the complainant down the stairs and you forced her into your waiting vehicle. Once in the vehicle you assaulted the complainant. You were then driven to a Hastings address where you continued to detain the complainant. During this time you assaulted her severely. Your offending against the complainant culminated in you stabbing her, probably with a knife, through her left eyebrow in a way which caused irreparable damage to the complainant’s eye. You then continued to detain the complainant. She was not able to receive medical treatment until the police located you and rescued her early in the afternoon of 6 December 2011. The complainant has lost the sight in her left eye.

[10] When spoken to by the police you initially denied causing injury to the complainant’s eye. You claimed that injury had been caused by female associates of a rival gang. You later suggested the injury occurred accidentally when you and the complainant fell down the stairs at the Refuge Centre. Remarkably, when you gave evidence to the jury, you maintained the story that the complainant’s injury to her eye was caused by an unknown item which you grabbed from a toy box and threw at the complainant. The reason why that story was unbelievable was because the surgeon who treated the complainant gave irrefutable evidence that the wound you inflicted was caused by a knife like implement. He described the wound as being like a surgical incision and that the tissues in the eye are tough, robust and hard to sever. He said considerable force had been used when the complainant’s eye was stabbed.

Starting point

[11] In sentencing you I propose to take the charge of wounding with intent to injure as the lead offence. It is the most serious of the offences with which you have been convicted. The offending in question also involved very high levels of culpability.

[12] In determining a starting point I am guided by a Court of Appeal judgment, to which reference has been made by your counsel.[1] In my assessment your offending falls clearly within the top band of categories of offending identified by the Court of Appeal. Your offending involved:

(1) serious unprovoked gratuitous violence; (2) very serious personal injury;

(3) an attack to the head; (4) the use of a knife; and

(5) it took place in a domestic form of attack.

[13] The Court of Appeal suggests that offending within category three of its guidelines should produce a starting sentence of between nine to fourteen years’ imprisonment.

[14] In this case I am going to adopt a starting point of 11 years’ imprisonment. In my assessment this sentence reflects the seriousness of your offending and is a proportionate response to the harm that you have inflicted upon the complainant.

[15] Unfortunately for you Mr Muliipu, I am also required to adjust your sentence upwards for two reasons. You have 43 previous convictions. Most relevantly you have previous convictions for assault, injuring with intent to injure and assaulting a female. You now also have further convictions in relation to your offending against the complainant, including convictions for injuring with intent to injure her. In my assessment your previous convictions and the totality of your offending are best accommodated by a further increase in your sentence by a period of two years.

[16] This means your sentence will be 13 years’ imprisonment. In my assessment

_{this sentence achieves the objectives of:}

(1) denouncing your conduct;

(2) holding you accountable for your offending;

(3) sending a clear message to society that offending of this kind will not be tolerated; and

(4) imposes the least restrictive sentence that can be imposed in the circumstances.

Minimum period of imprisonment

[17] In your case I propose to impose a minimum period of imprisonment. I do so in order to:

(1) hold you accountable for the harm that you have caused your victim and the community;

(2) denounce your conduct;

(3) deter others from committing the same or a similar offence; and

(4) protect the community from you.

[18] Having sentenced you to 13 years’ imprisonment I direct that you must serve a minimum of seven years’ imprisonment for your offending. In my judgement this minimum period of imprisonment is an appropriate response to the seriousness and the magnitude of your offending.

Reasons for not imposing a sentence of preventive detention

[19] You meet the qualifying criteria for a sentence of preventive detention. Disturbingly, the reports indicate that you are likely to commit another qualifying

sexual or violent offence when released from prison.[2] However, I have decided not to impose a sentence of preventive detention because in my judgement, if you are ever going to successfully reintegrate into society you need to focus on finite goals that may go some way to enabling you to return to society. The factors that have persuaded me not to impose a sentence of preventive detention are:

(1) There is some evidence that you understand the seriousness of your offending, notwithstanding the implausible explanation for the serious wound you inflicted upon the complainant. The evidence I refer to includes:

(a) your guilty plea to one charge;

(b) the expressions of remorse recorded in the pre-sentence report and Dr Morrison’s report and the contents of the letter that you have written to me.

(2) There does appear to be a strong connection between your alcohol abuse and your offending. There are indications that you wish to address this fundamental cause of your offending.

(3) There is some evidence in the reports that you have the capacity to address the root cause of your offending.

(4) Your age. You are still relatively young, and you have the time if you are rehabilitated to be able to contribute to society.

(5) Finally, and from my perspective most importantly, I was impressed by the fact that you do have some family support. I watched your mother when you gave evidence. It was obvious that she was deeply distressed by your behaviour. The reports indicate that you respect and respond to the support that you receive from your mother and

_{from some of your brothers and sisters. Hopefully their continued}

support will enable you to change your life in the way that your brother, Sapo, has. He appears to have benefitted greatly from rehabilitation programmes he participated in when he was in prison. I hope that he will be a source of strong guidance and inspiration to

_you.

Sentence

[20] Mr Muliipu, I am sentencing you to 13 years’ imprisonment.

[21] You must serve a minimum period of seven years’ imprisonment.

_{[22] You may now stand down.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Napier

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[1] R v Taueki [2005] 3 NZLR 372 (CA).

[2] Refer report from Dr Young at 8 and Dr Morrison at [26], [28] and [35]-[39].