R v Waa [2018] NZHC 1028 (10 May 2018)

Last Updated: 24 September 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2017-019-1653 [2018] NZHC 1028

THE QUEEN

v

CAROL TAKUA WAA

Hearing:	10 May 2018
Appearances:	R G Douch for Crown K Burroughs for Defendant
Judgment:	10 May 2018

SENTENCING NOTES OF VAN BOHEMEN J

Solicitors:

Crown Solicitor, Hamilton Kerry Burroughs, Hamilton

R v WAA [2018] NZHC 1028 [10 May 2018]

Introduction

[1] Carol Takua Waa, you appear for sentence having pleaded guilty to one charge of manslaughter. The maximum penalty is life imprisonment.¹

The circumstances of the offence

[2] The deceased victim was your husband, Gerald Wiremu Waa. Your relationship began around 1983. You had three children together over that 35 year period.

[3] In March 2017, you and your husband were living in a one bedroom unit situated on the top floor of a block of flats in Te Aroha Street, Hamilton.

[4] On 11 March 2017, a Saturday, you and your husband attended a lunch for local Maori Wardens before returning home. You both then began to drink throughout the afternoon and into the evening.

[5] Between 7.00 and 8.00pm you and your husband went downstairs to the flat below you, where the resident, Ms Pihama, had two visitors. All three of them were invited to you and your husband’s flat to socialise. For a period of about two hours the group socialised and drank together amicably.

[6] Around 10.00pm Ms Pihama went downstairs to charge her cellphone. You and your husband began arguing. During the course of the argument you both went into the bedroom. Upon hearing raised voices the other two guests felt awkward and went back downstairs. For a period of about 10 minutes those downstairs heard a violent incident upstairs with raised voices and banging. They heard your voice stop yelling during the banging and were concerned for your safety but did nothing to intervene.

[7] There was clearly a struggle between you and Mr Waa. You told the Police that Mr Waa asked you to drive him and the two visitors into town and when you refused his request Mr Waa threw you across the room into a wooden chair, which

¹ Crimes Act 1961, ss 158, 160(2)(a), 171 and 177.

broke. You refused to drive them into town because you were concerned your husband had sexual designs upon one of the visitors. Your husband continued to assault you.

[8] Your husband left the bedroom and returned with a bread knife and threatened you with it. He said that if you did not do what he wanted he may as well kill you there and then. He held the knife to your throat. He put the knife down before recommencing his assault upon you at which point you picked up the knife and stabbed him, enabling you to get past him and out of the bedroom.

[9] You came downstairs and joined the group and had a cigarette. You then returned upstairs to your own flat. You immediately came back downstairs in a distressed state, crying, asking for assistance as your husband was upstairs bleeding.

[10] Mr Waa was lying on his back in the bedroom with blood around him. Emergency services attended to him but his injury, a single knife wound to the chest to a depth of nine centimetres, was fatal. The bread knife was located in the sink at the address. Pathologist reports indicate it severed major arteries such that death occurred rapidly.

[11] You maintain that you did not anticipate or intend for your husband to die as a result.

[12] This is the factual narrative to which you have pleaded guilty and forms the basis on which you will be sentenced today.

Ms Waa’s personal circumstances

[13] I have read your pre-sentence report and health assessor report. Ms Waa, you are a 62-year-old woman of Tainui Iwi. You and the deceased were in a domestic relationship for over 35 years. You have adult children together. Your mother says that you are a good person and that your children love you.

[14] The general opinion of family and professional specialists is that you were involved in a violent relationship with the deceased over a long period of time. The consumption of alcohol together usually led to argument and then to Mr Waa
physically abusing you. You say that there were good moments but they were few and far between, acknowledging that you have experienced a lifetime of physical and sexual abuse at the hands of the deceased. You say he broke various parts of your body. You told the pre-sentence report writer that you would not report domestic violence incidents to the police. The reason you did not seek help is you say because Mr Waa controlled you all of the time. Despite the abuse, you maintain that you still love him and miss him, even though you didn’t like the way he treated you.

[15] Your life since a young age has been one of physical, sexual and mental abuse. You had a chaotic and socially deprived upbringing due to alcohol abuse by both of your parents and your father’s physical and emotional abuse of your mother. You say the only respite was when your father joined the army and went to Vietnam, but he returned damaged by the war and the abuse continued. When your mother left your father, you had to look after the other children – twins, only four or five months old, when you yourself were around six or seven years old.

[16] You were placed in your mother’s custody after the Department of Social Welfare determined your father could not provide for you. You and the twins went to live with your mother and her new partner. That was not a healthy relationship either, as this partner was also physically abusive towards your mother, and your mother continued to drink, relying on you to take care of the household and younger siblings.

[17] You began running away from home around age 13. You began drinking and stealing to be taken away from a home you felt unsafe in and placed in several institutions. Tragically, in your teenage years while in State care the custody of the Department of Social Welfare you were subject to further abuse as well as made to conform to a harsh disciplinary regimen. It is clear that you spent much of your formative years subject to sexual, physical, and mental abuse, and that when you told people, nothing was done. No doubt this made it difficult to imagine a life without those close to you hurting you and that much harder to walk away from a long-term relationship no matter how abusive.

[18] You met your first husband when you were in your late teens. When you got pregnant, you and he married at his parent’s insistence. You described him as highly
controlling, demanding that all the housework be done before he returned home otherwise he would beat you. You had seven children together and Child, Youth and Family Services became involved due to the physical abuse in the household. Your children were later adopted out but you maintained contact with all of them.

[19] Your marriage with your first husband came to an end after an altercation which cumulated in you stabbing him with a vegetable knife, for which you were sentenced to nine months’ imprisonment for assault with intent to injure. When you were released, you moved in with the deceased, Mr Waa, who was present during the altercation and had kept in contact with you while you were in prison.

[20] You and the deceased had children together. The first was born with cerebral palsy, which you attribute to being subject to physical abuse, including being kicked in the stomach, by Mr Waa, while pregnant. Severe physical abuse was a constant feature of this relationship, at one point resulting in a broken cheekbone which required major surgery. At one point when you tried to run away Mr Waa cut your legs with a carving knife in the Achilles tendon to stop you. This was following a sustained assault against you from which you suffered lacerations inside the mouth, and bruising to your head and body. For this he was sentenced to two years’ imprisonment.

[21] When Mr Waa was released he came to live with you again. You claim that he would pick up women in the pub and bring them home. He would make you drink to get you to sleep while he was with the other women. The physical abuse continued. Your counsel has produced medical evidence of some eleven injuries inflicted on you by the deceased. These were only the injuries serious enough that you sought medical attention.

[22] It is clear your life is characterised by significant physical and sexual abuse in your upbringing as well as within your two marriages. You stayed in these marriages because you were afraid to live on your own. Your psychotherapist observes that you continued to love your husband because life had conditioned you into believing that there was nothing you could do to stop him and nobody cared enough to help. You have been assessed as chronically depressed and as having diminished cognitive
function, although it is unclear if this is due to trauma sustained by injury or alcohol abuse.

[23] Despite these difficulties at home, you became a Maori Warden and were good at the role which you performed for twenty years up until the present offending. Your manager there described you as “good with people, having a happy nature, willing and keen to help out, and a good parent and grandparent”.

Victim impact statements

[24] I have read the victim impact statement from your daughter that you and Mr Waa had together. It is clear she is deeply hurt and angry at the loss of her father, for herself and for her own daughter who was close to Mr Waa. Her statement makes clear the tragedy that has been visited upon the family through what has happened.

Purposes and principles of sentencing

[25] In sentencing you, Ms Waa, I am guided by purposes and principles of the Sentencing Act 2002. The harm is the loss of human life, and I must hold you accountable for the harm you have done, and to promote in you a sense of responsibility for, and acknowledgment of, that harm. It is important to denounce your conduct and to deter others, but also to recognise that your rehabilitation is equally important. I must carefully assess the gravity of the offending and the degree of your culpability. I must also maintain consistency with sentences for similar offending in similar circumstances and bear in mind the requirement to impose the least restrictive sentence possible. In your case, the requirement that I take into account your personal, family, whanau, community, and cultural background, as informed by the pre-sentence report, is of particular significance when considering the rehabilitative purpose of sentencing.

Starting point

[26] In sentencing you, I must adopt a starting point first based on the seriousness of your offending and your level of culpability.
[27] The circumstances that lead to a conviction for manslaughter are varied, so there is no tariff judgment.² In setting a starting point, I am guided by similar past cases and, depending on the circumstances, the decision of R v Taueki, the guideline judgment for serious violent offences not involving death, as a point of reference.³

[28] As you have heard, the Crown has sought a starting point of four years and nine months’ imprisonment. This is based on what the Crown says are aggravating features identified in Taukei⁴ of extreme violence, serious injury – being death – use of a weapon, and the target area of the chest area in the vicinity of the heart, while acknowledging that you inflicted a single blow without premeditation.

[29] The Crown submits that your offending is comparable to that in the decisions of R v Woods and R v Hu, where starting points of four years and nine months were been adopted,⁵ and also to R v Wharerau where a starting point of four years and six months was taken.⁶ Helpfully, the Crown also referred to other manslaughter cases involving domestic violence dynamic where starting points of four years’ imprisonment⁷ and three years nine months’ imprisonment⁸ respectively were adopted.

[30] Your counsel, Mr Burroughs, does not accept that R v Woods and R v Hu are appropriate comparisons. He says those cases should be distinguished on the basis that Mr Waa was assaulting you, that he had in the past caused you bodily injury, and that stabbing him enabled you to escape and prevent him from his continuing his assault on you. Mr Burroughs submits that the starting point should therefore be less than that proposed by the Crown, and should not be any more than four years’ imprisonment.

[31] I have considered the cases carefully; Hu and Woods represent the upper range for offending of this kind and I agree they are not particularly apt comparisons in the circumstances of this case. In R v Kirk Clark J found that cases involving defendants

² Murray v R [2013] NZCA 177.

³ R v Tai [2010] NZCA 598 at [11] citing R v Jamieson [2009] NZCA 555.

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31].

5. R v Woods HC Gisborne CRI-2011-016-48, 10 June 2011 upheld on appeal in Woods v R [2011] NZCA 573; R v Hu [2012] NZHC 54.

⁶ R v Wharerau [2014] NZHC 2535.

⁷ R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009.

⁸ R v Tagatauli [2016] NZHC 757.

who have killed abusive partners tend to receive starting points of between three and a half years and five and a half years imprisonment.⁹ I consider your offending to be less serious than in Kirk, which involved a firearm, where a starting point of four years’ imprisonment was adopted. In R v Rakete, Whata J found a single act of violence causing death often attracts a starting point of three to four years,¹⁰ and there are numerous sentences adopting a starting point of three years and six months for single acts of violence where both victim and offender have been acting aggressively.¹¹ In my judgment, your offending is more serious than that of Rakete, where the victim was struck in the head with a large pepper shaker and a starting point of three years’ imprisonment was adopted.

[32] In R v Rose an argument developed in which the deceased became violent and punched the female offender around her head and body. When the verbal argument continued, the offender stabbed the deceased with a small pocket knife in the upper back inflicting wound from which the deceased died later. A starting point of three years’ imprisonment was adopted.¹²

[33] As the Crown submitted, in reaching a starting point in the context of domestic violence where a single stab to the chest area has caused death, the wound location is relevant to the assessment of the overall seriousness of the offending, having regard to the conduct of both parties. R v Tamati is an example of a starting point of four years in the context of a physically violent long-term relationship where the less serious location of the stab wound (in that case, the leg) is counter-balanced by the more aggressive behaviour of the defendant. Likewise, R v Tagatauli involved a greater degree of premeditation, as after an argument the defendant obtained two knives and followed the victim upstairs, and stabbed the victim once in the chest, once in the shoulder, and once in the leg, with the leg injury proving fatal. In that case, starting point of three years and nine months’ imprisonment was adopted.

⁹ R v Kirk [2016] NZHC 1249 at [45].

¹⁰ R v Rakete [2013] NZHC 1230 at [28].

¹¹ Citing R v Finau HC Auckland CRI 2005-044-008378, 4 July 2006; R v Efeso HC Auckland CRI 2008-092-7925, 24 October 2008; R v Schimanski HC Hamilton CRI 2006-068-215, 12 December 2006; R v Cassidy HC New Plymouth T2/03, 10 July 2003; R v Tutahi HC Wellington T4724/01, 26 April 2002.

¹² R v Rose [2017] NZHC 1488.

[34] In considering your culpability I have also had regard to the Law Commission’s 2016 Report of Family which draws attention to the reduced culpability of victims of family violence who kill their abusers.¹³ The report writers say that where a victim of family violence is convicted of killing an abuser, a focus on previous cases may inhibit consideration of offending in light of recent research about family violence.¹⁴ The conduct of the deceased will often be the most relevant mitigating factor in sentencing, so family violence is a pattern of harmful behaviour that belongs to the abuser, as Mr Burroughs has said, rather than the relationship or the family violence victim.¹⁵

[35] As you are being sentenced to manslaughter, rather than murder, the Crown accepts you had no intention to kill Mr Waa. While the other cases I have referred to present a good framework, I consider the specific facts of your offending are most relevant.

[36] In my view, there are two aggravating factors of your offending. One is the use of a weapon, a knife. A second is the serious injury caused, in that the single stab wound to the chest area caused death.

[37] However, I consider there are strong mitigating factors:

(a) The deceased was and always had been the primary aggressor,¹⁶ despite being well-loved by his family. It is not stretching things to say that Mr Waa’s conduct brought about your actions. His previous assaults of you and the assault he was subjecting you to that night are intimately related to your offending.

(b) Your husband was 55 years of age. He was some five years younger than you and bigger than you. He was intoxicated and had been assaulting you during the course of an argument, in which he held a knife to your throat and threatened to kill you. While the Crown

13. Law Commission Understanding Family Violence: Reforming the Criminal Law relating to Homicide (NZLC R 139, 2016) at ch 11.

¹⁴ At 11.24.

¹⁵ At 11.25.

¹⁶ Sentencing Act 2002, s 9(2)(c)

submits that your use of the knife was disproportionate to the threat posed because the deceased had put the knife down, that overlooks both the past history of abuse and of physical and emotional domination of you by Mr Waa, and the fact that the knife was still at hand and there was still a risk it could have been used against you.

(c) Thirdly, your use of the knife was impulsive and driven the circumstances of the moment rather than from any pre-mediated plan. The knife was first used by the deceased when he picked it up, held it to your throat and threatened to kill you after he had trapped you in the bedroom. This reduces the seriousness of the use of a weapon as an aggravating feature.

[38] For all these reasons, I see the case as meriting a starting point commensurate with that adopted by Clifford J in Tagatauli and consider that a starting point of three years and nine months’ imprisonment is appropriate.

Adjusting the starting point

Prior convictions

[39] I now consider adjusting the starting point. The Crown submits there should be an uplift of three months because of your previous conviction for stabbing your previous husband when he was assaulting another person. You pleaded guilty to that charge and you paid the penalty of a term of imprisonment. The Crown says you have not learned and that this should be taken into account.

[40] That conviction was in 1983, over 35 years ago. Mr Burroughs submits that this sentence was historic, and there is nothing to be gained either for the community or you by imposing an uplift. I agree.

[41] A knife was used then as it is now, but the same theme of a violent and abusive relationship is present, and in your earlier offending there was an indication of an element of defence of another, or possibly self-defence, as arguably there is in the present circumstances. The pre-sentence report writer assesses your risk of
reoffending as medium. The report writer noted the stable protective factors you have in place, as well as your use of professional help. Despite this, the report writer assessed you as a high risk of harm to others on the basis you have a propensity to use violence and weapons when under the influence of alcohol. I find those conclusions somewhat at odds with the evidence. Your criminal history shows that these two episodes, 35 years apart, are the only two violent offences in which you have been involved.

[42] In my view, your offending is highly context specific, in that the identifiable risk factors to regarding any potential violent tendencies are inextricably linked with your being involved in long-term abusive domestic relationships. I consider your risk of reoffending and harm to others as reasonably low. I am satisfied that it is inappropriate to impose an uplift for a conviction from 35 years ago.

[43] I have already described your tragic personal history in some detail and I apologise for the pain that it may be causing you and your family but I must now turn to consider your personal mitigating features.

Mental health

[44] First, the question of your mental health. The Crown submits there is no necessary connection between any mental health issue and the offending so no further discount is warranted. Mr Burroughs points to the health assessor reports that detail your history of personal suffering as justifying a further discount. The pre-sentence report writer notes there are no obvious entrenched attitudes supporting your offending.

[45] The clinical psychologist report by Dr Peter Dean describes how you remained dependent on your abusive partners, despite the physical, sexual and emotional abuse. Dr Dean states your dysfunctional upbringing was reinforced by your adult experiences, which contributed to impulsive and aggressive behaviour in response to conflict in your relationships.

[46] In this case, your past experience of violence meant that you responded to Mr Waa’s violence and threats that night in a way that may have been different from a
person who did not have those experiences. I am required to take into account the potential that you had a diminished ability to understand what was happening at the time of your offending.¹⁷

[47] Dr Dean identifies that you have features of dysfunctional personality of mixed type, and also some features of Posttraumatic Stress Disorder, with the psychological effects of trauma negatively affecting your ability to function. Dr Dean notes that you feel you have made some gains and is of the view that you will benefit from ongoing psychological support, this will improve and develop your interpersonal skills, self- esteem, coping mechanisms, as well as reduce impulsivity, help learn to manage anger, and reduce dependency on others.¹⁸

[48] You take daily medication for chronic depression and meet weekly with a psychotherapist to address your childhood abuse, relationship abuse, and grief issues. Your psychotherapist has confirmed your dedicated attendance, describing you as very forthcoming and prepared to challenge issues looking at horrific abuse you have experienced in the past.

[49] Having regard to these mental health considerations and your personal history, I am satisfied that the consequences of a lengthy term of imprisonment would likely have a disproportionate effect on you. Prompt release into the community will ensure you can best be provided with the psychological support you need to improve your mental state and facilitate your rehabilitation.

[50] For completeness, I note I did not take into account your psychiatric and psychological history in setting a starting point, where I primarily took into account the deceased’s conduct. Rather, I have considered this as a mitigating feature so as to acknowledge the impact of your emotional and mental health on your offending, and for the purpose of understanding the full impact of a sentence of imprisonment on you.¹⁹

¹⁷ Sentencing Act 2002, s 9(2)(e); R v Kirk [2016] NZHC 1249.

¹⁸ Exhibit A, defence bundle, at 10.

¹⁹ R v Rakete at [42].

[51] Accordingly, I consider a discount of 12 months, or 25 per cent, is appropriate to take into account your diminished understanding, to recognise the disproportionately severe consequences that a lengthy term imprisonment may have for your psychological and psychiatric wellbeing, and to acknowledge the positive steps you have taken towards addressing these issues to assist in your rehabilitation and reintegration into the community.

[52] This leads to a sentence of two years and nine months’ imprisonment.

Remorse

[53] I come now to the question of remorse. I accept that you are genuinely remorseful. The pre-sentence report writer considers that you presented with sincere remorse. You say that you did not want Mr Waa to die and that you miss him. You justify your actions as self-protection because you had enough of his abuse but that you did not meant to stab him and certainly did not mean to kill him. Your anguish is described in the statements given by witnesses present at the night of the offending. I consider a modest discount of or around five per cent for remorse is appropriate and I subtract two months.

[54] This leads to a sentence of two years and seven months’ imprisonment.

EM bail

[55] You have been on electronically monitored bail since 2017, and Mr Burroughs said you were also on remand for a time. As the Crown acknowledges, you are entitled to a modest discount for your time on electronically monitored bail, which I set at a reduction of three months’ imprisonment.²⁰

[56] This reduces the sentence to two years and four months’ imprisonment.

20. Sentencing Act, ss 9(2)(h) and (3A); Rangi v R [2014] NZCA 524 at [10]; Chea v R [2016] NZCA 207 at [109]; Parata v R [2017] NZCA 48 at [10]–[14].

Guilty plea

[57] Your Guilty plea, the Crown says that a reduction for your early guilty plea should be 10 per cent, on the basis that the plea was entered at a late stage. Mr Burroughs says that your decision not to contest the manslaughter charge and the resources saved by not having a trial, as well as saving your children from giving evidence, justify a discount of 20 per cent.

[58] You were charged with murder in March 2017 and were remanded in custody on this charge until your release on EM bail in 2017. You offered to plead guilty to manslaughter on 26 January 2018. The amended charge notice including manslaughter as an alternative was filed on 19 February 2018. Your guilty plea was entered the same day, a week before the trial scheduled for 26 February 2018.

[59] The offer to plead to manslaughter was initiated by you and was made a month before trial and your guilty plea was entered immediately the charge was entered. For that reason, I consider a reasonable discount is appropriate and I reduce the sentence by four months or approximately 15 per cent.

[60] The end result of this process is a sentence of two years’ imprisonment.

Home detention assessment

[61] Ms Waa, as the end result is what is termed a short term sentence of imprisonment, you are eligible to be considered for home detention. The proposed address for an electronically monitored sentence of home detention is a two-bedroom Housing New Zealand apartment. It is assessed as suitable. It is currently occupied by your mother and since your arrest you have also resided there on EM bail without issue. There are no welfare or safety concerns identified by the pre-sentence report.

[62] While the Crown and the pre-sentence report writer says that the seriousness of your offending should be punished by a sentence of imprisonment, I disagree.
[63] Given the highly specific context of your offending, I do not consider imprisonment is necessary to show society’s disapprobation of your offending. Nor do I consider imprisonment would be likely to be useful in rehabilitative terms.

[64] The reports show you are making progress in addressing the emotional and mental health issues that underlie your conduct. I consider that it is society’s interest and in your interest that you continue with those programmes and try to establish a basis for a less trauma laden future life. You say that when the time is right you want to find employment again perhaps driving heavy vehicles, for which you have a licence and have worked for around four years. I hope that is in your future.

[65] You say you have been alcohol free for the last several months. There is however the common theme of alcohol abuse, and you say that you drank heavily when with the deceased and that you would start arguing and then fighting. I consider you would benefit from completing an alcohol abuse programme because alcohol is a contributing factor in the offending.

[66] Another consideration militating against imprisonment is that you are currently acting as caregiver for your mother who suffers from Alzheimer’s disease. This is itself a very challenging but important and socially valuable task.

[67] Your actions and your circumstances indicate that the community will be sufficiently protected by a sentence of home detention. The psychological and psychiatric factors which I have referred to in conjunction with your age satisfy me also that a sentence of home detention is appropriate.

Final sentence

[68] Ms Waa, would you please stand now.

[69] Ms Waa, on the charge of manslaughter, I sentence you to 12 months’ home detention on the conditions set out in the pre-sentence report.

Three strikes warning

[70] Because you have been convicted of manslaughter, you are subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these “serious violent offences”.

(a) If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b) If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[71] Ms Waa, you may stand down.












van Bohemen J