Police v Ainu'u [2019] NUHC 6; CR 26, 41, 42, 43, 44, 45, 46, 47, 48, 49 of 2018 (14 March 2019)

IN THE HIGH COURT OF NIUE
(CRIMINAL DIVISION)

CR26,41,42,43,44,45,46,47,48,49/2018

In the matter of: Present a loaded firearm at another person namely Rudolf Ainu’u
Section 12(1)(2) Niue Arms Act 1975

Driving a motor vehicle namely a white colour Nissan March plate number 6547 in a public place being at Hakupu to Alofi main road without having a valid annual licence for that motor vehicle

Section 4(b) & 5(1) Transport Act 196

In possession of any firearm a Maverick Mossberg 12 Gauge Pump Action Serial No: MV77352M for a period longer than 28 days without having an annual registration certificate

Section 6(1) Arms Act 1975

In possession of any firearm a Winchester 12 Gauge Single Barrel Serial No: 1096982 for a period longer than 28 days without having an annual registration certificate

Section 6(1) Arms Act 1975

In possession of any firearm for some unlawful purpose
Section 10(1) Arms Act 1975

At Matagauta, Tuapa you did cause bodily injury to any person namely Rudolf Ainu’u by carelessly using a firearm

Section 13(1) Niue Arms Act 1975

At Matagauta, Tuapa you did discharge a firearm within 100meters of a building being used as a residence by namely

1. Reverend Faitala & Mrs. Ainu’u residence (4x Occupants)
2. Leipata Sionetuato residence (2x Occupants)
3. Viliami Tuipulotu residence (4x Occupants)

Section 13A(1) Niue Arms Act 1975

Driving a motor vehicle namely a white colour Nissan March plate number 6547 in a public place being at Hakupu to Alofi main road without having a valid warrant of fitness carried on or affixed to that motor vehicle

Section 70(1) Transport Act 196

At Matagauta, Tuapa an act or Omission causes bodily harm to any person namely Rudolf Ainu’u under such circumstances that if death had been guilty of manslaughter.

Section 153 Niue Act 1966

At Fonuakula, Alofi South and Matagauta, Tuapa you did wilfully damage a white colour Toyota Camry Registration plate 6720 the property of Mrs. Ainu’u

Section 213(1) Niue Act 1966

BETWEEN: Niue Police

Applicant

AND Rhys Tatui

Accused

DECISION OF CHIEF JUDGE CRAIG T COXHEAD

Decision on criminal charges

1. The two accused in the matters that I have before the court have been charged with a variety of charges, all steaming essentially from the one incident on the 9^th of June 2018. The events relating to this case originate at the Alofi Rugby Club on the 9^th of June 2018.
   
2. It is clear to me that there was some dispute between the two accused. What that was, and how serious the dispute was and the nature of it is unclear. But it must have been serious enough to cause Mr Tatui to follow Mr Ainu’u to his house.
   
3. The two accused and other main players in this event had been drinking. The evidence is that they had drunk an amount where the Doctor’s report notes on both men, note that they were clinically alcohol intoxicated. There is also other evidence before the court which indicates that both accused had had some considerable amounts of alcohol. This in part accelerated events of the night.
   
4. Mr Ainu’u left the club rooms to take two persons home to Fualahi. When he was driving back towards Alofi he came upon a road block. A car driven by Mr Tatui and a van driven by Mr Floyd Viliamu (Williams). They were parked side by side in a way as to block any cars from going past. Mr Ainu’u stopped at which point Mr Tatui got out of his car with a steel baseball bat and walking towards the car, Mr Ainu’u was in, he swung the baseball bat and hit the rear of the car as Mr Ainu’u was reversing. Photos presented to the court show the extent of the damage to the rear of that vehicle.
   
5. Mr Ainu’u then managed to get around the blockade and headed to Tuapa where he resides. He says he went passed the Police Station but did not see any vehicles at the Police Station and Constable Tongahai confirmed that at that time, sorry on that night there were no vehicles at the Police Station as they were out doing their duties. And while the front door of the station was not open, the side door was.
   
6. Mr Tatui and Mr Floyd Williams, driving the van, followed Mr Ainu’u. They followed Mr Ainu’u in his car. Mr Tatui and Stuey Mautama were in the car. It was in my view a car chase. Constable Tongahai stated that “cars passed the Police Station, the cars fitting the description of the two accused cars that they were in. These passed the Police Station driving at speeds in excess of the speed limit for that area.”
   
7. When Mr Ainu’u arrived at his home in Tuapa, Mr Tatui was right behind him. Mr Ainu’u stopped outside of his house and Mr Tatui drove into the back of Mr Ainu’u’s car.
   
8. Mr Mautama says that the chase was for over, in his view, 45 minutes. Having been road blocked and then chased, then had his vehicle hit from behind right outside his house. It was no wonder Mr Ainu’u was scared and as he stated to the Court he was not only scared for himself but also scared for his mother-in-law and his 7 year old daughter who were in the house.
   
9. Words were exchanged. It was unclear what those words were but the circumstances then became more heated. Matters escalated further. Mr Ainu’u went to the back of house to retrieve a bush knife. He says he did this to protect himself. He did not know how many people were in the car.
   
10. By this time Mr Tatui had got back into his car and was reversing. He then drove at Mr Ainu’u. Mr Ainu’u dodged the car and with the bush knife smashed the window screen of Mr Tatui’s car. Mr Ainu’u understandably felt scared.
    
11. Mr Tatui drove a few metres away from Mr Ainu’u’s house and parked the car. What he did in that short time is not known. But rather than drive away from the house he remained close by. Then he drove back towards the house.
    
12. Matters rather than subsiding escalated even further. Because in that period Mr Ainu’u had gone and got a gun. He did this, he says “as he did not know what was going to happen next and he was fearful for what would happen to him and his family.”
    
13. At this moment Mr Tatui’s car was still within close proximity to the residence of Mr Ainu’u. Mr Ainu’u stood close to his house and he shot his gun. He says “into the sky.” He says “he did this to scare off Mr Tatui and others.”
    
14. However the evidence as I read it, is that Mr Ainu’u’s shot was in the direction of and towards Mr Tatui’s car. Mr Tatui then was while, and it is unclear whether it was before the shot, or after the shot, or during the shot Mr Tatui’s car was driving back towards the house.
    
15. Essentially he was passing the house with, I conclude a gun, where he retaliated to the shot of Mr Ainu’u hitting him on the left side of his body. There is then an exchange of shots. Mr Ainu’u shot at the car again and Mr Tatui’s car now, moving away from the house, and then parked close by, proceeded to fire a number of shots back at the house. This was when Mr Tatui parked up, a close distance as I say, from the house. It was in essence a shootout. Mr Ainu’u was shot again and in fact received further gun wounds. Mr Ainu’u says “that he discharged the gun three (3) times.
    
16. In my view from the evidence before the Court, it seems that this is consistent with the exhibits and other photos and information the Court has.
    
17. What is also in my view clear is that all three (3) shots were aimed at Mr Tatui’s car. Mr Tatui it appears discharged his gun some six (6) times.
    
18. As a result of the shootout, Mr Ainu’u, as I say, suffered wounds. He received a number of wounds. The photos and the Doctor’s report, provide the Court with information regarding the wounds that Mr Ainu’u suffered.
    
19. Mr Mautama also received shot gun wounds and so too did Mr Tatui.
    
20. After the shootout Mr Tatui drove off, away from the house.
    
21. In regards to those circumstances, it is my view that Mr Tatui, it is clear that he did have a gun, which he did fire, and it was his firing of the gun that caused Mr Ainu’u’s injuries.
    
22. The prosecution have proven that Mr Tatui was the person who shot the gun on the night in question around the houses in Tuapa and by Mr Ainu’u’s house and other houses. He fired in total, it appears to be six (6) shots and some of those shots hit Mr Ainu’u.
    
23. I also find that Mr Tatui did damage Mrs Ainu’u’s Toyota Camry.
    
24. Therefore, on charges 46, 48 and 49 I find Mr Tatui GUILTY.
    

Sentencing decision

25. Firstly, I am going to deal with the matters that you have pleaded guilty on Mr Tatui and they are the driving the vehicle, in possession of the firearms without annual registration and that there was two firearms. You will have heard me, I have just made the order for the guns and the ammunition to be forfeited and on those three (3) matters you are fined $300.
    
26. The serious matter is one that, as I said in my decision this morning, was very much alcohol related. There were aggravating features in that I agree that this was a pursuit. That you did have an opportunity to drive away but remained at the house. The car was involved, there are firearms that were involved and there has been injury to Mr Ainu’u. In my view one of the factors on your side in determining a starting point is the fact that while it was in self-defence it was Mr Ainu’u who fired the first shot.
    
27. Matters had accelerated and got worse and worse as the night went on rather than matters subsided that first shot sent these events into a very unfortunate situation. Unfortunate in that people were hurt and if there is anything fortunate about this situation is that nobody was killed. These are serious events in a small very Christian community where alcohol, guns, cars, they do not mix well and the fortunate position of this event, as I say is, that nobody was killed.
    
28. As I say there were aggravating features as well as I think the mitigating matter, also noting that you yourself were injured in this event and also Mr Mautama, he was also injured and I therefore think that the starting point for this matter is 12 months. It is a year.
    
29. What I have heard today from those who have come to support you and the letters that I have before you, I think I should be giving you as much discard as I possibly can to ensure that you don’t go to prison. Because matters like this, that’s where they normally lead people to.
    
30. I have heard from your elders talking about how the Courts are killing the people. Unfortunately I have to disagree with what he said. I take his point that it is better that these matters are sorted out amongst the community but when they extend to people having guns and as I say alcohol being involved, that is when the Courts unfortunately we do not ask to be involved in your lives. It is through your actions that you end up being involved in the Court process. And as I say in a very Christian community like this. It is not only sad for you but it is sad for your family, for your wife, for your children, for those of your church and for those of your community of Hakupu.
    
31. But I think there are a number of factors which are on your side. And one of the most important factors is that there is help. There is help in terms of the counselling. That while Charlene, I am sorry I didn’t get your surname - Tukiuha. She has explained that while the counselling is not alcohol specific, it is very much aimed at behaviour and hopefully if I were to sentence you to counselling that your behaviour would change.
    
32. Because with children and within your community and you are only young, you need to be a role model for the younger ones and role modelling in the right direction. Showing them the right way to behave, the right way to take care of their children, to take care of their family and getting drunk and firing guns is not the right way.
    
33. But as I say what I think is important is that there is help and that help fortunately for you is in the way of counselling. Also you are fortunate that you have from the letters and from the people who have spoken. You have a community that loves you and I take it that they don’t just love you when you are in trouble but also love you when you are a good boy. And we need you to do that for them and for you and for your family. The support that they have shown, them coming here today and asking me that I do not put you in prison but that I do give you back to them to their care so that they can guide you and assist you. I think that is very telling and you are very lucky and do not take their care for granted. Because they, your community, your church as I say, they love you and you must respect and give back that love to them.
    
34. Your community elder I think he has a point in terms that this is a small community, we do want peace. And telling in this situation is that Mr Ainu’u, him and his family also want peace. They do not want, as I take it, they do not want to see you severely punished so that this creates more anger, more hostility between everyone. They want this to resolve the issues so that there is no longer any further continuance destruction or arguments between you.
    
35. If I was to sentence you to prison I do not think there would be a lasting resolution. Unfortunately, I think that that may actually escalate things further. I would hope not. And I hope that you take this opportunity to see this not as a chance for retribution but there is a chance, as I say for this community that there be peace. And that people get along together and you can live happily together. You may not always be satisfied with each other but just be happy with each other.
    
36. So in taking all matters into consideration I would look to impose a community service sentence of 12 months. I have been told that your community, they will guide you, they will make you work so that you can repay the love that they have shown you today. Also in that you will be repaying the forgiveness that has been shown to you by Mr Ainu’u and his family as well.
    
37. You are lucky to have support and to have a loving community. Do not take that love for granted. That is the decision of the Court.
    

Date of hearing 14 March 2019.

___________________
C T Coxhead, CJ