R v Wawatai [2014] NZHC 2374 (3 October 2014)

Last Updated: 9 October 2014

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-002318 [2014] NZHC 2374

THE QUEEN

v

_{LAWRENCE HUIHUI WAWATAI}

Counsel:	S B Manning and F E Cleary for Crown A M Simperingham and M Prinsloo for Prisoner
Sentence:	3 October 2014

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Wawatai, this morning I am sentencing you in relation to three charges: (1) Manslaughter;¹

(2) Arson;² and

(3) Male assaults female.³

[2] In sentencing you I shall:

_{(1) Explain your offending.}

¹ _{Crimes Act 1961, s 177(1). Maximum penalty is life imprisonment.}

² _{Section 267(1). Maximum penalty is 14 years’ imprisonment.}

³ _{Section 194. Maximum penalty is two years’ imprisonment.}

R v WAWATAI [2014] NZHC 2374 [3 October 2014]

(2) Discuss the impact of your offending on members of Ms Akuhata’s

whanau.

(3) Examine your personal circumstances.

(4) Set out the starting point to your sentence.

(5) Examine possible adjustments to the starting point. (6) Explain your sentence.

Your offending

[3] The jury found you guilty of arson which means that they were all satisfied beyond reasonable doubt that you set fire to your house in circumstances where you knew or ought to have known you were likely to endanger Ms Akuhata’s life.

[4] On the other hand, the jury unanimously acquitted you of the charge of murder and elected instead to convict you of manslaughter.

[5] In the circumstances of this case the jury’s verdict in relation to the murder

charge is difficult to reconcile with its conclusions on the arson charge.

[6] In sentencing you, I shall draw upon the facts which best reflect the jury’s

verdicts, difficult though that is.

[7] You, Ms Akuhata, and members of her family had been drinking during most of the day on 10 October 2012. The drinking continued when you went into Tikitiki to Ms Akuhata’s family home.

[8] At about 5.00 pm you and Ms Akuhata returned to your home on the main road north of Tikitiki. You and Ms Akuhata had an argument. She tried to leave. Ms Akuhata packed her possessions and walked from your home down the main road towards Tikitiki. You then followed her in your truck and brought her back to

your home. Upon your return to the house, the argument appears to have continued. At some point you hit Ms Akuhata.

[9] At about 7.00 pm you went and obtained a five litre plastic container of petrol from the shed. You sprinkled its contents in the bedroom where Ms Akuhata was. You probably sprinkled petrol on her. You then set fire to the room. Ms Akuhata ran from the room, on fire, and collapsed in the lounge where she died.

[10] I am sure that after you saw Ms Akuhata on fire you immediately regretted your actions. You telephoned the emergency services. By that stage, however, it was too late to save Ms Akuhata.

[11] When you were spoken to by the police you accepted that you had sprinkled the bedroom with petrol. You claim you then went outside and that when you came back inside Ms Akuhata had poured petrol over herself and set fire to herself in the lounge. Your lawyer suggested to the jury that before setting fire to herself Ms Akuhata took the petrol container outside. I am very satisfied the fire started in the bedroom and not in the lounge. The forensic evidence included detailed information about the magnitude of the destruction of the master and second bedrooms, evidence of comparatively less destruction of the lounge and evidence of charring patterns under the floor joists in the lounge all of which strongly indicated the fire started in the master bedroom and travelled under the house to the lounge. I am also sure that you are the person who took the petrol container outside after you had started the fire.

[12] I approach the sentencing of you on the basis that you bear a very high level of culpability for your offending. The jury’s verdict on the arson charge means that your argument that Ms Akuhata set fire to the house is wrong. You must be sentenced on the basis that your offending was very close to murder.

The impact of your offending

[13] Mr Wawatai, I appreciate you continue to have the support of your parents and your two daughters.

[14] You should now appreciate, however, that not all of Ms Akuhata’s family have come to terms with her death, or the circumstances under which she died. That is very understandable as is their feelings of deep hurt, betrayal, anger and bewilderment at what you have done.

[15] I hope that in due course all of Ms Akuhata’s family will be able to follow in Ms Lorraine Akuhata’s footsteps. Her words of forgiveness reflect her deeply held Christian values.

Your personal circumstances

[16] You are now 57 years old. For over 30 years you and Ms Akuhata lived together, raised three children and, until her death, Ms Akuhata played a major role in caring for your two mokopuna.

[17] Your parents are clearly decent people who have lived in Tikitiki for most of their lives. Your father gave evidence and it was clear to me that he is a man of integrity. Your mother was a schoolteacher. Compared to many you had a lot of advantages when growing up in Tikitiki.

[18] Sadly, however, you were never able to fulfil your potential. You have clearly had issues with alcohol, which led to you mistreating Ms Akuhata and you have committed the most serious of your crimes, when under the influence of alcohol. Your previous offending includes a conviction for causing the death of a person while driving under the influence of alcohol.

[19] I hope that deep down you understand the magnitude of your offending and the impact that your conduct has had, not just on Ms Akuhata’s whanau, but on your own family.

Starting point

[20] I treat your conviction for manslaughter as being the lead offence for sentencing purposes.

[21] There is no tariff sentence for manslaughter. Sentences for manslaughter have ranged from conviction and discharge through to life imprisonment. This range of sentence reflects the wide spectrum of circumstances that can give rise to a conviction for manslaughter. What they all have in common is that death has been an unintended consequence of an unlawful act.⁴ The extent of the harm resulting

from the offence must be taken into account.⁵

Taueki methodology

[22] The Court of Appeal has said that the methodology in Taueki⁶ may be an appropriate reference point when assessing a starting point in some types of manslaughter cases.⁷

[23] I am satisfied that it is appropriate to refer to the Taueki guidelines in your case because you intentionally set fire to your home and Ms Akuhata died as a result of this. Your actions involved serious violence.

[24] In your case I consider the following Taueki aggravating factors are highly relevant when determining your sentence.

Premeditation

[25] You must have left the house to get the petrol container from the shed. You therefore had ample opportunity to reflect on what you were doing. Instead of staying outside and cooling off you got the petrol container, returned inside and sprinkled petrol in the bedroom, and probably over Ms Akuhata. You then struck a match and threw it into the room. Ms Akuhata caught fire and ran to the lounge where she died.

_{[26] Your actions were very deliberate and involved premeditation.}

⁴ _{R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008 at [25].}

⁵ _{Sentencing Act 2002, s 9(1)(d).}

⁶ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

⁷ R v Tai [2010] NZCA 598 at [11].

Serious injury

[27] Ms Akuhata died as a result of the fire which you deliberately lit.

Extreme violence

[28] Ms Akuhata must have suffered a very painful death. The pathologist’s evidence indicated Ms Akuhata’s death was not instant. Her last moments must have been unimaginably horrific.

[29] These three aggravating factors would justify a starting point of somewhere between nine and 14 years’ imprisonment using the Taueki methodology. In addition, however, there is another factor which I believe I need to take into account. That concerns the vulnerability of Ms Akuhata.

Vulnerability of Ms Akuhata

[30] I am satisfied Ms Akuhata was trying to leave you on the night she died. She had packed her possessions and walked, in her nightwear, down the main road towards Tikitiki when you went and got her in your truck. It is reasonable to conclude you were angry and incensed at her determination to leave you. Given her circumstances that evening Ms Akuhata was in a state of some vulnerability.

Comparable cases

[31] In R v Rapira the Court of Appeal said:⁸

... where death is due to deliberate violence combined with other seriously aggravating factors, the starting point has often been in a range of between six to 12 years.

...

[32] In more recent times Judges sentencing those convicted of serious cases of manslaughter have adopted a higher starting point than the range referred to in R v

_Rapira.

⁸ R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA) at [130] and [132].

[33] In assessing the appropriate starting point for your sentence, I have been assisted by cases where the sentence of manslaughter was determined on the basis that the defendant’s conduct was close to murder.

[34] In your case, had you been convicted of murder, I would in all likelihood have been required to impose a minimum period of 17 years’ imprisonment because of the brutality and cruelty involved in your offending.⁹

[35] The fact you have come so close to being liable to a 17 year minimum period of imprisonment reflects the enormity of your offending.

[36] Cases in which a defendant has been convicted of manslaughter in circumstances where the offending is close to murder have usually resulted in a starting point of between 13 to 15 years’ imprisonment.¹⁰

[37] I shall adopt a starting point that is consistent with these cases. I therefore adopt a starting point of 13 years’ imprisonment. I believe that this starting point is consistent with the Taueki methodology.

Adjustments

Previous offending

[38] I have noted already that previously you have been convicted for causing death when driving and injuring others. Your offending on that occasion occurred when you had been consuming alcohol.

[39] I agree with the Crown, however, when it acknowledges that your previous convictions are not factors that I should take into account in determining the length

_{of the sentence I impose today.}

⁹ _{Sentencing Act 2002, s 104(1)(e).}

¹⁰ R v Waipuka [2013] NZHC 221 (15 years’ starting point, endorsed by the Court of Appeal in

Waipuka v R [2013] NZCA 661); R v Ambach HC Auckland CRI-2007-004-27374, 18

September 2009 (13 years’ starting point), endorsed by the Court of Appeal in Ambach v R [2011] NZCA 93; R v Blackmore CA29/05, 18 May 2005 (13 years’ starting point); R v Lory [2004] NZCA 190; [2005] 1 NZLR 462 (CA) (life imprisonment) and R v Leonard CA269/95, 6 September 1995 (15 years’ imprisonment).

Totality of your offending

[40] I have carefully reflected on whether I should increase your sentence to reflect the totality of your offending, particularly in relation to the charge of arson.

[41] In my assessment, your offending in relation to the arson and manslaughter crimes were so inextricably intertwined that I should treat them as being, in effect, one offence. I will therefore not increase your sentence to reflect the fact that you have been convicted of arson.

[42] It is very difficult for me to assess the seriousness of your assault on Ms Akuhata. The forensic evidence on this issue is open to many interpretations. For this reason I cannot impose any additional sentence to reflect that crime.

[43] I have searched to see if I can find any mitigating factors that could result in a reduction in the starting point of 13 years’ imprisonment. I can find none. In particular, I can find no evidence of remorse, particularly as you continue to assert Ms Akuhata took her own life.

Overall assessment

[44] A sentence of 13 years’ imprisonment serves the purposes and principles of

the Sentencing Act 2002. In particular, it is a sentence that will:

(1) hold you accountable for the harm you did to Ms Akuhata and the community;¹¹

(2) promote a sense of responsibility for your offending;¹²

(3) denounce your conduct;¹³

_{(4) deter you and others from committing the same or a similar offence;}¹⁴

¹¹ _{Sentencing Act 2002, s 7(1)(a).}

¹² _{Section 7(1)(b).}

¹³ _{Section 7(1)(e).}

¹⁴ Section 7(1)(f).

(5) takes into account the gravity of your offending and your culpability;¹⁵

(6) takes account of the seriousness of the type of your offence in comparison to other types of offences as indicated by the maximum penalties prescribed for your offending;¹⁶ and

(7) is the least restrictive outcome that is appropriate in the circumstances.¹⁷

Conclusion

[45] Mr Wawatai, can you now please stand.

[46] On the charge of manslaughter I am sentencing you to 13 years’

imprisonment.

[47] On the charge of arson I am sentencing you to seven years’ imprisonment.

[48] On the charge of male assaults female I am sentencing you to one year’s

imprisonment.

[49] All sentences will be served concurrently. This means that the maximum

_{sentence that you will serve is 13 years’ imprisonment.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Gisborne

Woodward Chrisp, Gisborne for Prisoner

¹⁵ _{Section 8(a).}

¹⁶ _{Section 8(b).}

¹⁷ Section 8(g).