R v Peniamina [No 2][2021] QSC 282

SUPREME COURT OF QUEENSLAND

1. [1]
   Arona Peniamina, you have been convicted of one count of manslaughter.  The victim was Sandra Peniamina, your wife and the mother of your four children.  You were convicted of manslaughter after a trial at which you pleaded not guilty to murder but guilty to manslaughter. 
2. [2]
   In sentencing you I must make findings of fact.  Those findings are a matter for me as there were no special verdicts sought and delivered.  Any findings made by me must be consistent with the jury’s verdict. 
3. [3]
   Your barrister, Mr Ryan, addressed the jury after the Crown Prosecutor, Ms Balic, opened the case.  Mr Ryan told the jury that your defence was based on provocation.  While as a matter of legal theory the jury may have convicted you of manslaughter after having failed to be satisfied that you manifested an intention to kill or do grievous bodily harm to Sandra Peniamina, the evidence at the trial of intention was very strong. 
4. [4]
   The only real issue on the trial was whether you had established the partial defence of provocation.  I proceed to sentence you on the basis that you formed a murderous intent and deliberately killed your wife, but at the time you did the act which killed her, you had temporarily lost the power of self-control.^[1]  Consistently with the jury’s verdict in accepting the partial defence of provocation, I accept that the actions of your wife, or at least her actions as you perceived them, were such as would cause a reasonable member of the public to have lost self-control, formed a murderous intention, and carried that intention out. 
5. [5]
   In the lead up to the killing, your marriage had become difficult.  You told police that your wife had been unfaithful to you.  Acts of infidelity had occurred, you said, recently, and had also occurred previously.  Your wife had been in New Zealand for a period.  New Zealand was her place of birth.  You suspected that she had become involved romantically with a man in New Zealand.  She returned to Australia, and a couple of days before she died you took possession of her mobile telephone, which you said contained evidence of her infidelity.  On the day Mrs Peniamina died you took possession of a second telephone.  You used this to call a man who you believed was having an affair with your wife.  You told police there was an unpleasant exchange with that man, where he referred to your wife as his “leftovers”. 
6. [6]
   The evidence of Mrs Peniamina’s alleged infidelity is very vague.  For instance, no evidence was led, either by the Crown or by you, of what messages, if any, were actually on the telephones.  There is, apparently, an explanation for that, at least from the Crown’s point of view; that those messages were not available. 
7. [7]
   There is no basis upon which I can determine whether or not Mrs Peniamina was in fact unfaithful to you.  It is unnecessary, though, to decide that issue.  The jury have obviously accepted that you believed that she had been unfaithful to you, and that there were circumstances such that your belief was not unreasonable.  I should proceed then on that basis. 
8. [8]
   You sought advice from a relative of yours, Ms Leapai.  You visited her on the day of the killing and spent time speaking with her.  She told you, in effect, that you should not conclude that Mrs Peniamina had been unfaithful.  It appeared to Ms Leapai that when you left her house you were calm. 
9. [9]
   You arrived home and confronted Mrs Peniamina with the allegation that she had been unfaithful.  She dismissed your concerns and you struck her in the face, causing her to bleed.  Mrs Peniamina was obviously concerned for her safety, as she went to the kitchen and armed herself with a knife.  You told police that you were in the bedroom and you heard her in the kitchen, heard the drawers open, and then you went into the kitchen.  It seems to me far more likely that you pursued her into the kitchen.  In any event, one wonders why you would have gone into the kitchen at all if it was not to confront her again. 
10. [10]
    At the trial, tendered into evidence were a large number of photographs of the kitchen area, and that was a very disturbing scene.  Police found a bent knife on the floor and a large amount of blood, not only on the floor but on the refrigerator and cabinets.  You had obviously inflicted violence upon Mrs Peniamina in the kitchen.  You attempted to disarm Mrs Peniamina, and as you took the knife from her, she cut you across the right palm.  The jury obviously found that this was the act which provoked you to form a murderous intention and to kill your wife.  I proceed on that basis. 
11. [11]
    By any standards, your attack upon Mrs Peniamina was ferocious.  You inflicted 29 sharp-force injuries.  Some of the blows with the knife caused very serious facial injuries.  There were also blows to the back of the head with the knife.  One of those was delivered with such force that it penetrated Mrs Peniamina’s skull.  The tip of the knife broke off, and the fragment was later discovered on autopsy still embedded in her skull. 
12. [12]
    It is unclear as to which stab wounds were inflicted in the kitchen and which were inflicted later, but it is obvious that a number of the wounds were inflicted in the kitchen, and that explains the significant amount of blood found by police in that area. 
13. [13]
    Mrs Peniamina fled from the kitchen down the hallway and outside.  The only reasonable inference that can be drawn is that she was fleeing from you.  The other only reasonable inference that can be drawn is that you pursued her. 
14. [14]
    The pair of you ended up outside on the driveway.  As I have said, the only reasonable inference is that you pursued her from the house, just as you had, in my view, moved from the bedroom to the kitchen, at least to confront her.  When outside, she attempted to hide behind a car, but you continued to stab her, and then, when she must have been quite disabled, you removed a cement bollard from the garden which you then smashed into her head on at least one occasion. 
15. [15]
    I find, based on the evidence of Dr Phillips who performed the post-mortem, that it is most likely that this was the act which caused death.  Dr Phillips’ evidence was that the skull fractures, which I find were caused by the bollard, damaged Mrs Peniamina’s brain stem, and that damage led to breathing failure, cardiac arrest, and inevitably her death. 
16. [16]
    Mrs Peniamina was only 29 years of age when she died.  As I have said, she was the mother of four children, and they were aged between six and ten years at the time of her death.  By the time you are released, their childhoods would have ended.  Your actions have deprived them of both their parents for the majority of their childhoods and deprived them of their mother for the rest of their lives. 
17. [17]
    Carnetra Potter, Sandra Peniamina’s younger sister, has provided a victim impact statement.  She explained that the children have been taken back to New Zealand and are living with Mrs Peniamina’s family.  Understandably they are badly affected, not only by the loss of their mother, but by the circumstances in which they lost her.  Ms Potter explained how your killing of Mrs Peniamina has impacted the family.  It is unnecessary to explain that in detail, except to say that the family is very badly emotionally scarred.  They now have the responsibility of raising your children.  Whereas they clearly love your children and have taken them in, that has caused extra financial burden to them.  I thought Ms Potter’s victim impact statement was measured and sensible, and I have no hesitation in accepting what she has written. 
18. [18]
    The proceedings which ultimately led to your conviction for manslaughter have a long history.  You were arrested in the late hours of 31 March 2016.  You spoke to the first detective who arrived at your house, and you made a full confession to him.  You told him that you had killed Mrs Peniamina.  You told him that you intended to kill her, and you told him that you had lost your temper because of her infidelity and because she cut you with a knife. 
19. [19]
    You were tried on a count of murder.  At that trial, when arraigned, you pleaded not guilty to murder but guilty to manslaughter.  The plea was not accepted by the Crown.  Your defence at that trial was the partial defence of provocation.  It seems that you did not contest any of the recognised four elements of the offence of murder, being:

1. Mrs Peniamina was dead;
2. that you killed her;
3. you did so unlawfully; and
4. that you intended to kill her or at least do her grievous bodily harm. 

20. [20]
    You were convicted at that trial and you unsuccessfully appealed to the Court of Appeal, but Justice of Appeal McMurdo dissented.^[2]  His Honour would have granted you a new trial as a result of misdirections on the partial defence of provocation.  Your appeal to the High Court of Australia was successful. The conviction was set aside, and you were ordered to be retried.^[3]  That is the trial conducted by me.
21. [21]
    When arraigned at your second trial, that is the trial before me, you pleaded not guilty to murder but guilty to manslaughter.  The Crown did not accept that plea in discharge of the indictment and the trial proceeded.  Again, as I have already explained, the only matter which you raised was the partial defence of provocation.  You did not contest the four elements of the offence of murder. 
22. [22]
    The position you adopted in pleading not guilty to murder has been justified by the jury’s verdict in convicting you of manslaughter but being unable to form a unanimous view on the count of murder. 
23. [23]
    It follows that you pleaded guilty at the first reasonable opportunity to the offence for which you were actually found guilty.  The plea should therefore be regarded as an early one.  It also follows that, by your plea, you attempted to assist the administration of justice by accepting your guilt for the offence for which you were actually found guilty. 
24. [24]
    A plea of guilty does not necessarily reflect true remorse.  It is obvious to me, though, that you are truly remorseful and should be sentenced on that basis. 
25. [25]
    In the lead up to the killing you were investigating your wife’s alleged infidelity.  That is concerning.  Many a suspicious and/or paranoid husband or partner has inflicted violence upon suspicion of infidelity.  However, as earlier observed, the jury must have accepted that there was some reasonable basis upon which you could have formed a view about your wife’s alleged infidelity, whether it was or was not in fact true.  Your visit to Ms Leapai seemed motivated to seek advice as to how you could keep the marriage together.  It is obvious that the murderous intention which you formed and acted upon was not formed until you were in the throes of the argument with Mrs Peniamina.  Immediately after you killed her you made admissions and expressed remorse to police.  Your plea of guilty to manslaughter reflects that remorse, and I have taken that into account in sentencing you, and I have also taken into account your statement of remorse, which was tendered to me on sentence as exhibit 6. 
26. [26]
    You were born on 14 April 1980.  You are now 41 years of age.  You were 35 at the time you killed your wife.  You were born in Samoa and moved to New Zealand in 2003.  You were in a relationship with the deceased from about 2004.  She was born in New Zealand, and as I have explained, her family still live there.  On 1 August 2008 in New Zealand, you were convicted of assaulting Mrs Peniamina.  The offence occurred on 19 March 2008.  You were placed on a six-month good behaviour bond.  There are no further details of that offending, and you have no other convictions. 
27. [27]
    Prior to the killing and your subsequent imprisonment you worked as a scaffolder and were providing for your family.  You had reached the point of being a supervisor.  The four children of the marriage are now aged, on my calculations, between 11 and 15. 
28. [28]
    Since being imprisoned you have busied yourself.  You have worked as a groundsman, a kitchenhand, a stores assistant, and a mess worker.  You have also completed various courses in substance abuse, creative programs, participation in Samoa Independence Day, food handling, and various agricultural training through the University of Queensland.  It is said that the time you have served in prison has been especially difficult for you because you have no family here. 
29. [29]
    Relevant principles on imposing sentence are found in s 9 of the Penalties and Sentences Act 1992.  Section 9(1) lists the purposes of sentencing.  They can be described as:

1. firstly, to punish;
2. to rehabilitate;
3. personal deterrence;
4. general deterrence;
5. denunciation; and
6. protection of the community from the offender. 

30. [30]
    Section 9(2) then prescribes relevant considerations on sentence, and the subsections which follow s 9(2) vary or define the considerations in s 9(2).  You have committed an offence to which s 9(3) applies, and I have considered the factors prescribed by that subsection. 
31. [31]
    The purpose of protection of the community from an offender must be viewed in the light of Veen v R (No 2).^[4]  While protection of the community is a valid consideration at common law, there is no recognised principle of preventative detention, and any sentence cannot exceed a proper proportionality to the offending.
32. [32]
    In your case, personal deterrence does not take prominence.  You have one prior conviction.  While that was an assault upon Mrs Peniamina, nothing much is known of the particulars of that offence.  As already observed, it resulted in a six-month good behaviour bond.  Otherwise you have no criminal history.  The present offending must be considered out of character.  As I have explained, you were immediately remorseful and you pleaded guilty at the first available opportunity.  The jury’s verdict explains the offending as a spontaneous reaction to being cut with the knife. 
33. [33]
    In 2016, the Criminal Law (Domestic Violence) Amendment Act 2016 inserted subsection (10A) into the Penalties and Sentences Act.  That provides that in determining the appropriate sentence for an offender convicted of a domestic violence offence, the Court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the Court considers it is not reasonable to do so because of the exceptional circumstances of the case.  Legislative examples are given of exceptional circumstances, and s 304B is mentioned.  That is not the section which provides for the partial defence of provocation.  Section 304B provides for the partial defence of killing for preservation of life in a domestic relationship. 
34. [34]
    R v O'Sullivan Ex Parte Attorney General, and R v Lee Ex Parte Attorney General,^[5] is a very important decision of the Court of Appeal.  There, the Court of Appeal carefully analysed changes in sentencing legislation which have occurred over the past couple of decades.  Those amendments reflect escalating public concern with violent offending in a domestic setting.  As the Court of Appeal held, the introduction of subsection (10A) into s 9 raised the importance and prominence in sentencing for domestic violence offences of the considerations of general deterrence and denunciation.  It also follows, as was explained by the Court of Appeal in O'Sullivan and Lee, that care has to be taken in the consideration of older comparatives, where sentences have been imposed and then considered on appeal against a different legislative context than that which currently applies.
35. [35]
    I have been referred to a large number of comparative cases.  Some are very recent, but some go back over two decades.  For reasons I have already explained, the later cases are of limited use. 
36. [36]
    It is not my function to reconcile all the comparative sentences.  They are to be used as a yardstick against which the sentence to be imposed ought to be assessed.^[6]  Worth particular mention though are the recent decisions of R v O'Malley^[7] and R v Hutchison,^[8] both decided after the introduction of s 9(10A) of the Penalties and Sentences Act.  O'Malley pleaded guilty to manslaughter and was sentenced to a term of imprisonment of 11 years, which automatically attracted a serious violent offence declaration. 
37. [37]
    Over a period of time, O'Malley had assaulted his domestic partner.  The final assault left her with fractured ribs and lacerations to her liver.  There were also injuries to one of her kidneys and her adrenal gland, and she was haemorrhaging internally.  When ambulance officers arrived, O'Malley told them that the deceased had fallen in the shower.  He ultimately pleaded guilty to manslaughter on the basis that when assaulting the deceased, he intended to cause her harm but not grievous bodily harm or death.  O'Malley had a criminal history which was mainly for offences of violence.  There were convictions for offences which occurred against a former partner in breach of a domestic violence order.  The sentence of 11 years was not disturbed on appeal.
38. [38]
    Hutchison was convicted of manslaughter and fraud.  He unlawfully killed his wife in circumstances which seem largely unknown.  He had fraudulently mortgaged the family home before the death and embarked upon what was described as an elaborate scheme of hiding the circumstances of her death and her whereabouts.  She was never found.  He was sentenced on the basis that the jury were satisfied that he had unlawfully killed her but had not intended to kill or do grievous bodily harm to her.  He was sentenced to 15 years and six months imprisonment, being 15 years on the manslaughter and six months on the fraud, to be served cumulatively. 
39. [39]
    Both O'Malley and Hutchison were cases where the manslaughter convictions were founded on a lack of intent to cause death or grievous bodily harm.  In R v Hedlefs,^[9] the offender pleaded guilty to manslaughter on the basis of a lack of intent to kill or do grievous bodily harm.  It was argued on an application for leave to appeal sentence that the lack of intent made the case inherently less serious than provocation cases.  Provocation is, by s 304 of the Code, only available as a partial defence to murder, where the offender would otherwise be guilty of murder.  In order to be guilty of murder the offender would have to hold the relevant intent to kill or do grievous bodily harm. 
40. [40]
    Helpfully for present purposes, Justice Philip McMurdo observed this:

“Just as an intention to kill or do grievous bodily harm of itself need not be an aggravating factor, the absence of that intention of itself will not be a mitigating factor. Rather, the existence or absence of that intent will be relevant as an ingredient of the mix of facts and circumstances by which the offence is to be considered in the assessment of the appropriate sentence. There is no reason to suppose that the sentencing judge here did not consider it in that way.”

41. [41]
    His Honour’s remarks are, in my respectful view, completely consistent with modern principles requiring an intuitive synthesis approach to sentencing.^[10]  I have taken the fact that you did hold an intention to kill your wife into account, but only as one of the various relevant considerations in your case. 
42. [42]
    There are a number of cases where sentences have been imposed on manslaughter based on the partial defence of provocation.  They include R v Schubring,^[11] R v Mills,^[12] R v MP,^[13] R v Sebo,^[14] and R v Murray.^[15]  All predate the legislative introduction of s 9(10A) of the Penalties and Sentences Act. 
43. [43]
    However, some are of general assistance.  In Mills, the offender argued with his wife, who had goaded him with tales that she had had sex with other men.  She struck him with an electrical cord which he then strangled her with.  Ultimately, he was sentenced to nine years imprisonment without a serious violent offence declaration. 
44. [44]
    Sebo was also a killing in a domestic situation.  The deceased taunted the offender, telling him that she had slept with other men and would continue to do so.  He bludgeoned her to death with a steering wheel lock.  A sentence of ten years with a serious violent offence declaration was not disturbed on appeal. 
45. [45]
    Murray was sentenced to nine years imprisonment with a serious violent offence declaration.  The deceased and the offender were working on a house.  The deceased swung a hammer at the offender, who then took the hammer from the deceased, lost control, and beat the deceased to death.
46. [46]
    The Crown submits that your case is in the most serious category of cases and consequently life imprisonment could be imposed.  The level of violence, and the circumstances of the offending, at least opens the door to such a conclusion.  However, the offending was out of character.  It was spontaneous, in that there was no premeditation to kill when you arrived at the house.  You were and are genuinely remorseful and you expressed that remorse immediately after the killing. 
47. [47]
    The Crown submits that if life imprisonment is not imposed then a sentence of at least 15 years should be. 
48. [48]
    Mr Ryan, on your behalf, recognises the seriousness of the offending and the impact of s 9(10A) of the Penalties and Sentences Act.  He submitted that an appropriate sentence was 13 years imprisonment. 
49. [49]
    There are very serious aspects of your offending.  The initial assault occurred in the bedroom, and that was a reaction to Mrs Peniamina refusing to discuss with you your allegations of her infidelity.  She had every right not to discuss that issue with you if she did not wish to.  Her refusal was clearly the catalyst which sparked the events which followed.  Because she did not do what you wanted her to do, namely discuss  her alleged infidelity, you punched her.  The inference is, in my view, overwhelming that the initial punch was a reaction to what you regarded as unacceptable defiance by her. 
50. [50]
    From that point the argument and the violence escalated dramatically.  It is obvious to me that you were the aggressor in all of it.  I draw the inference that Mrs Peniamina was not the aggressor when she armed herself with the knife.  She was fleeing from you to the kitchen.  She was already, by that stage, bleeding.  Mrs Peniamina may have cut you by withdrawing the knife as you attempted to grab it, but she was frightened and clearly in a mode of self-defence in my view.  You had already, by that stage, punched her, and then one way or another had pursued her into the kitchen.  The act of cutting you, as the jury has found, provoked you to form a murderous intention, but the entire situation had been caused by your intolerance to her decision not to speak to you about her alleged infidelity.
51. [51]
    Your attack upon her after she had cut you was savage.  You rained stabs down upon her upper body, face, and head, and when she tried to escape outside you pursued her again.  The prolonged and vicious attack only ended when you killed her by crushing a part of her skull with a bollard, which was part of the landscaping that you had extracted from the garden. 
52. [52]
    Violence of any kind must be deterred and denounced.  This violence was extreme and was inflicted in a domestic violence situation initiated by your reaction to your wife not doing what you wanted her to do. 
53. [53]
    I have taken into account all the mitigating circumstances as I have identified them.  You are sentenced to a term of imprisonment of 16 years.  I declare that the offence is a domestic violence offence and a serious violent offence.  You are eligible for parole after serving 80 per cent of the sentence.  I declare that the period served in pre-sentence custody between 1 April 2016 and 24 October 2021, being a total of 2034 days, is time served on the sentence, and of course a conviction is recorded.