IN THE COURT OF APPEAL OF NEW ZEALAND
CA281/2013
[2013] NZCA 623
BETWEEN
IORITANA TUAU
Appellant
AND
THE QUEEN
Respondent
Hearing:
18 November 2013
Court:
Randerson, Heath and Asher JJ
Counsel:
E A Hall for Appellant
J E Mildenhall for Respondent
Judgment:
6 December 2013 at 2.00 pm
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
The appeal
[1]
Mr Ioritana Tuau was charged with one count of wounding with intent to
cause grievous bodily harm, arising out of an incident that occurred in the early
hours of 15 September 2011. On 26 February 2013, about two weeks before the
scheduled trial, he pleaded guilty to that charge and was remanded for sentence, in
the High Court at Wellington, on 8 April 2013. On that day, Miller J imposed a term
TUAU v R CA281/2013 [2013] NZCA 623 [6 December 2013]
of imprisonment of nine years, with a minimum non-parole period of four years and
six months,1 representing one-half of the finite sentence.
[2]
Mr Tuau appeals against the finite sentence imposed, on the grounds of
manifest excess. He also challenges the minimum sentence of imprisonment, on the
grounds that it was unnecessary.
Facts
[3]
Mr Robert Bryden and two friends had been drinking alcohol throughout the
afternoon on 14 September 2011. That evening, they decided to travel by train from
the Kapiti Coast into Wellington. They spent the rest of the night, and the early
hours of the next day, at various bars along Courtenay Place and its environs. Much
alcohol was consumed.
[4]
Just after 3.30 am, on 15 September 2011, the three men began to walk back
towards the Wellington Railway Station. As they did so, they came across Mr Tuau.
He was arguing with a woman in front of Café Baba. Mr Bryden and his friends
stopped. Mr Bryden asked whether Mr Tuau and the woman needed any help.
Mr Tuau replied that “we New Zealanders can take care of ourselves”. Seemingly in
response to that comment, Mr Bryden hit Mr Tuau. Evidence from by-standers
suggests that there might have been a flurry of blows. Whatever happened, the force
of the attack stunned Mr Tuau and caused him to stumble across the footpath and fall
onto the road. Mr Bryden and his associates continued on, turning into Tory Street.
[5]
Mr Tuau was helped to his feet by two males, neither of whom was known to
him. With some encouragement from them, all three gave chase to Mr Bryden and
his friends. Realising what was happening, Mr Bryden saw an entranceway on the
left-hand side of Tory Street. It was the driveway access to the Tory Street entrance
of the Tournament Parking car park. At that time of the morning, the doors to the car
park were locked. While his friends managed to run off, Mr Bryden was cornered at
the entrance to the closed car park. He was confronted by Mr Tuau, and the other
two men.
1
R v Tuau [2013] NZHC 681 at [36] and [38].
[6]
Initially, all three men appear to have had some involvement in the attack on
Mr Bryden. Mr Tuau began punching Mr Bryden, knocking him to the ground.
While in that prone position, Mr Tuau kicked him in the head. In doing so, Mr Tuau
held onto a nearby handrail with his left hand, in order to gain greater leverage.
Mr Tuau’s associates kicked Mr Bryden’s legs and feet. On each occasion when
Mr Bryden’s head was kicked, it hit a concrete barrier behind him, making (what
must have been) a sickening “thudding noise”.
Eventually, Mr Bryden lost
consciousness. After intervention from a member of the public, Mr Tuau and his
associates left the scene.
[7]
Mr Bryden was taken to hospital, unconscious and in a critical state. After
CT scans had been taken, he was admitted into the intensive care unit. The scans
revealed swelling to his head and a fractured right eye socket. Mr Bryden was kept
on a ventilator, and was sedated for a number of days, while the swelling on his brain
reduced. He was admitted to a brain injury unit for rehabilitation on 18 October
2011. Currently, he is unable to move purposefully and cannot speak. His prospects
of ever being able to do much more are slim.
[8]
On 20 September 2011, after seeing a CCTV image of himself on a website,
Mr Tuau voluntarily went to the Lower Hutt Police Station, accepted involvement
and provided the clothes and shoes that he had been wearing that night to the police.
Mr Tuau told police officers that, as a result of his state of intoxication, he could not
remember the detail of what occurred. In particular, he had no recollection of any
kicking or stomping.
Pre-sentence report
[9]
At the time of the offending, Mr Tuau was 20 years old. He was described by
the pre-sentence report writer as a “Cook Island Maori [who was] well supported by
a large family who exhibit a pro-social attitude”.
[10]
The probation officer determined that factors relating to the risk of
reoffending were violence, relationships and alcohol. Mr Tuau was assessed as
“genuinely deeply regretful for the vicious and unrelenting attack on the victim and
seeks atonement for his violent actions which have irrevocably altered the course of
the victim’s life and indeed his own”. He was said to be “clearly deeply ashamed for
what he has done”.
[11]
Mr Tuau was assessed as “highly motivated to address his offending needs”
and was (at the time he met with the pre-sentence report writer) undertaking
rehabilitative programmes, including attendance at a drug treatment unit. His risk of
reoffending was assessed as low, “due to lack of previous conviction history,
acceptance of guilt, remorse, and positive attitude and the pro-social changes he has
already made in his life”.
Submissions on appeal
[12]
For Mr Tuau, Ms Hall submitted that the end sentence was manifestly
excessive and a minimum non-parole period unnecessary.
[13]
In challenging the end sentence, Ms Hall submitted:
(a)
The starting point taken for sentence (12 years imprisonment) was too
high.
(b)
A full credit of 25 per cent for the guilty plea should have been
provided, as if entered at the pre-committal stage.
(c)
[14]
Allowances for other mitigating factors were insufficient.
On the minimum non-parole period, Ms Hall submitted that one was not
required for protection of the community or for deterrence. She submitted that the
sentencing goals of denunciation and accountability alone did not justify the
imposition of a minimum term.
[15]
Ms Mildenhall, for the Crown, submitted that the end sentence, while stern,
was within range. She contended that the Judge had not erred in constructing his
sentence on any of the bases advanced by Ms Hall.
[16]
Ms Mildenhall submitted that a minimum period of imprisonment was
necessary in this particular case to denounce the offending and to hold Mr Tuau
accountable for it.
Sentencing in the High Court
[17]
Miller J took a dim view of the offending. After recounting what had
happened, and explaining the severity of Mr Bryden’s injuries in some detail, the
Judge characterised the offending as “an exceptionally serious crime which must
earn ... a very long prison sentence”. The Judge added that he was “under no illusion
that the sentence [would] deter anyone from offending in similar circumstances” but
that it would denounce Mr Tuau’s conduct and hold him accountable for the “terrible
harm” that he had done. Miller J did not regard Mr Tuau as a dangerous person from
whom the community required protection for a long period of time.2
[18]
In considering what sentence ought to be imposed, Miller J applied the
methodology directed, and the guidance given, by this Court in R v Taueki.3 By
reference to the features of grievous bodily harm offending, Miller J identified
relevant aggravating factors as the attack to the head; the extreme violence used
(including the use of the handrail for leverage); the devastating injury suffered by
Mr Bryden; the group nature of the attack that disabled him; and his progressive
vulnerability, once in a prone position. The Judge regarded the kicking or stomping
to the head as “a very serious aggravating factor” because “it both risks traumatic
brain injury and invites the inference that the offender intends just such an injury”. 4
[19]
One of the aggravating factors to which Taueki refers is vigilante action.5
That factor arises when serious violence results from one or more persons taking the
law into their own hands, and (in the circumstances of this case) acting out of
revenge. The weight to be given to that factor may be tempered if “there [were]
serious provocation which was an operative cause of the violence inflicted by the
offender, and which remained an operative cause throughout the commission of the
2
3
4
5
At [22].
R v Taueki [2005] 3 NZLR 372 (CA) at [8] and [31].
At [23].
R v Taueki, above n 3, at [31(m)].
offence”.6
The Judge identified vigilante action as an aggravating factor but
considered that it was offset by the degree of provocation involved.7
[20]
In determining a starting point, the Judge indicated that “but for one factor” a
starting point of 14 years imprisonment would have been required for a crime that he
regarded as “among the most brutal, most harmful, most serious of its kind”.8 That
one factor was the element of provocation. A period of two years was deducted from
the maximum to allow for this factor, giving a starting point for sentence of 12 years
imprisonment.9
[21]
Turning to mitigating factors, the Judge identified Mr Tuau’s guilty plea, his
remorse, his age, prior good character, co-operation with the police and family
circumstances. The Judge gave a credit of 10 per cent for previous good character,
but was not prepared to allow anything further for youth. Nor was any credit given
for co-operation with the police or family circumstances. The Judge was “sceptical”
about Mr Tuau’s claims of rehabilitation.
He based that view on two of four
incidents during which Mr Tuau had breached terms of bail.10
[22]
In considering the credit that should be given for the guilty plea, Miller J
looked at the circumstances in which the late plea had been entered. 11 He took the
view that those circumstances did not justify what would be an “abnormally large
discount for a very late plea”. The total credit allowed for the guilty plea and
remorse, together, was 15 per cent.12
The Judge also had concerns about
representations made to Andrews J, when Mr Tuau was arraigned before her and
pleaded guilty to the charge. Unusually, for such a serious crime, Mr Tuau was
released on bail pending sentence. Andrews J had been informed that Mr Tuau’s
partner was about to give birth. The true nature of the relationship, as disclosed by
the probation officer, was no more than a “brief liaison”.13 The Judge assessed the
6
7
8
9
10
11
12
13
At [32(a)].
R v Tuau, above n 1, at [23] and [27].
At [26], applying s 8(d) of the Sentencing Act 2002.
At [27].
The background is explained in more detail in Rodney Hansen J’s judgment of 14 August 2012,
on a bail application: Tuau v Police [2012] NZHC 2052 at [2]–[6].
See [35]–[43] below.
At [29]–[33].
At [14]–[15].
total credit as being one of 25 per cent, resulting in an end sentence of nine years
imprisonment.14
[23]
Miller J then considered the Crown’s submission that a minimum period of
imprisonment should be imposed. That submission was opposed by counsel for
Mr Tuau on the grounds that his previous good character and prospects of
rehabilitation did not justify its imposition.
While not unsympathetic to the
submission, the Judge decided to impose a minimum term representing 50 per cent
of the finite sentence. He said:
[38]
... The sentence I have just passed is stern, and minimum periods are
not imposed lightly, especially for a first offender from whom the
community does not need protection: that is a fair description of you. The
Parole Board will take the seriousness of your crime into account when
considering early release. But a minimum period is justified where the
normal non-parole period is inadequate to meet the need for accountability
and denunciation. Notwithstanding the mitigating factors, that need is
exceptionally strong in your case. I think it compels a minimum period.
And the shortest that I think I can impose is 50 per cent of the sentence I
have just passed.
Analysis
(a)
Starting point
[24]
In our view, Miller J’s starting point of 12 years imprisonment was justified
having regard to all the aggravating factors relating to the offence, when assessed
against the maximum penalty of 14 years imprisonment.
[25]
This was a case involving extreme violence.15 Mr Bryden, having been
cornered near a locked public car park door was beaten, knocked down and kicked
(or stomped upon) until he became unconscious.
[26]
By the time that Mr Bryden had been rendered unconscious and in a prone
position he was undoubtedly vulnerable to further attack.
aggravating factor.
That is a further
With respect, we disagree with Ms Hall’s submission that
vulnerability is only relevant in cases where the victim is a child, or there is a
disparity in size or strength between the attacker and the victim. Taueki makes it
14
15
At [33]–[36].
R v Taueki, above n 3, at [31(a)].
clear that a person will be regarded as “vulnerable” for this purpose if disabled in
some way, or otherwise rendered “defenceless”.16
[27]
Attacking the head of a victim is a further aggravating factor. 17 That is, as
Miller J observed, for the obvious reason that traumatic brain injury can result from
such actions. Further, the nature of the attack in this case was such as to make an
inference that serious harm was intended irresistible.18
[28]
The effect of the crime on the victim is another aggravating factor.19
Mr Bryden is unable to function on a daily basis without assistance from others. He
cannot move purposefully and cannot speak. Life will be a misery for himself, and
family and friends who support him. The seriousness of the injuries suffered cannot
be overstated.
[29]
The element of vigilante action20 can be seen from the way in which
Mr Tuau, egged on by those who assisted him, chased Mr Bryden for the purpose of
inflicting violence upon him as an act of retribution. However, we agree with the
Judge that this aspect of the Taueki aggravating factors is tempered and offset by the
provocation.
[30]
We regard the Judge’s reduction of the starting point for provocation as
generous. While the assault by Mr Bryden no doubt incensed Mr Tuau, his actions
in exacting retribution were the likely result of encouragement that he received from
the strangers who tended to him at Courtenay Place, and who also chased after
Mr Bryden. By the time Mr Tuau began to assault Mr Bryden, the causal nexus
between the provocative act and the assault on Mr Bryden had diminished.
[31]
When provocation is taken into account at sentencing, it “is not enough
simply to claim to have been incensed by the actions of the victim”. Rather, as
Taueki makes clear, “the sentencing Judge [must] be satisfied that there was serious
16
17
18
19
20
At [31(i)].
At [31(e)].
See [18] above.
R v Taueki, above n 3, at [31(c)].
At [31(m)].
provocation which was an operative cause of the violence inflicted by the offender,
and which remained an operative cause throughout the commission of the offence”.21
[32]
Leaving to one side the vigilante action, there are four aggravating factors of
the type identified in Taueki that were available for the Judge to bring to account:
extreme violence, attacking the head, the vulnerability of the victim and the serious
injuries inflicted. In a case in which there are four aggravating factors of this type,
the starting range is in band 3 of Taueki, between nine and 14 years imprisonment.22
We consider that a starting point for sentence of 12 years imprisonment was well
within range.
(b)
Mitigating factors
(i)
[33]
Mitigating factors other than guilty plea
Miller J allowed a credit of 10 per cent to reflect prior good character, but did
not deduct anything further to reflect co-operation with the police, Mr Tuau’s family
circumstances, or his attempts at rehabilitation. Those findings were open to the
Judge on the material before him.
[34]
While another sentencing Judge might have been more generous in fixing an
appropriate credit for mitigating factors other than the guilty plea, it cannot be said
that the Judge’s assessment is insupportable.
(ii)
[35]
Guilty plea
When Mr Tuau attended at the Lower Hutt Police Station on 20 September
2011, he gave a full statement, by recorded interview. While uncertain about what
had happened, he indicated a genuine desire to co-operate fully with the
investigation. However, he did not plead guilty until 26 February 2013, about two
weeks before the scheduled trial. The timing of the plea has relevance to the credit
provided by the sentencing Judge for that component of the sentence.
21
22
At [32(a)].
At [34(c)] and [40].
[36]
Having initially been the subject of a holding charge on or about 25 October
2011 Mr Tuau was charged with wounding Mr Bryden with intent to cause grievous
bodily harm.
Substantial disclosure followed.
Disclosure of ESR reports was
finalised on 23 February 2012. That analysis revealed that blood located on the
shoes of Mr Tuau was likely to be that of Mr Bryden.
[37]
Counsel for Mr Tuau reviewed the evidence to be given by eyewitnesses.
That did not clearly establish the identity of the person who was responsible for
kicking Mr Bryden’s head. At its highest, the evidence described a light brown
skinned male who was wearing dark jeans, dark shoes and had a tattoo on his upper
arm.
The shoes that Mr Tuau had been wearing, which were found to have
Mr Bryden’s blood on them, were the strongest evidence against him.
[38]
On 1 March 2012, counsel for Mr Tuau requested a pre-committal sentencing
indication.23 An indication was given on 23 April 2012, in the District Court at
Wellington. It was for an end sentence of imprisonment of five years and three
months. Mr Tuau was given until 10 May 2012 to consider his position.
[39]
Before 10 May 2012 a further opinion was disclosed from ESR which
indicated that the imprint on Mr Bryden’s ear/face could not have come from
Mr Tuau’s shoes. That left an area of contention about whether Mr Tuau had been
involved in kicking or stomping on Mr Bryden’s head. At that stage the defence
engaged its own expert, Dr Cropp, and indicated to the prosecution and Court that an
independent review of the shoes needed to occur.
[40]
The need for such a review was mentioned to Judge Susan Thomas, in the
District Court, at a hearing on 10 May 2012. Ms Hall, for Mr Tuau, attempted to
persuade the Judge not to continue the committal process until the independent
analysis had been obtained. The Judge was not prepared to delay the committal
process but did record a Crown acknowledgement that if a plea of guilty were
entered after that analysis, Mr Tuau would be entitled to a pre-committal credit for a
23
This was done in an attempt to secure the maximum credit for entry of a guilty plea: see
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
guilty plea, one of 25 per cent in terms of Hessell v R.24 Judge Thomas minuted the
information:
[Sentencing indication] on basis [accused] stomper. ESR now apparently
say stomping shoe is not [accused’s]. [Accused] has no memory.
Independent analysis of shoes sought by defence. No-one else charged re
this incident.
[Accused’s] attendance excused today.
Crown acknowledge that it has requested this matter proceed to committal
but with record “that [Accused] entitled to credit at this stage of process
should matters be resolved after scientific analysis (ie pre committal credit).
[41]
After that hearing, Mr Tuau was committed to the High Court for trial. The
trial was retained in the High Court, under the middlebanding procedures then in
force.
[42]
Regrettably, there were considerable delays in obtaining the analysis. When
submissions were made to Judge Thomas about the committal process, both the
Crown and Ms Hall had anticipated that a report would be obtained promptly to
enable Mr Tuau to assess his position.
The delay that eventuated cannot be
attributed to fault on the part of Mr Tuau, but it meant that Mr Tuau did not have all
relevant information until 14 January 2013.
[43]
On 7 or 8 February 2013, during a pre-trial telephone conference with Ronald
Young J, Ms Hall indicated Mr Tuau’s desire to plead guilty. At that stage, Mr Tuau
was on bail in Tokoroa. He was brought before the Court in Rotorua on 26 February
2013 for a plea to be entered. Following arraignment, Mr Tuau was convicted and
remanded on bail for sentence in the High Court at Wellington on 8 April 2013. He
was also given a first warning under the “Three Strikes” regime.
[44]
The circumstances, and amount, of credit that may be given for a guilty plea
was discussed by the Supreme Court in Hessell v R.
purposes:
24
At [75].
Relevantly, for present
(a)
The credit must reflect all circumstances in which the plea is entered,
including whether it is truly to be regarded as an early or late plea,
and the strength of the prosecution case. Marshalling those factors
will identify the extent of the true mitigatory effect of the plea.25
(b)
The reduction for a guilty plea component should not exceed
25 per cent. That limit reflects the fact that remorse is addressed
separately. While the timing of the plea of guilty is always relevant,
when the first opportunity to plead arises is something for particular
inquiry, as opposed to “formalistic quantification”.
“A plea can
reasonably be seen as early when an accused pleads as soon as he or
she has had the opportunity to be informed of all implications of the
plea”.26
(c)
There may be cases in which there are significant benefits from a plea
that warrant a sentence reduction, even though the plea is made in
close proximity to, or even during, a trial.27
[45]
We consider that the background against which the plea was entered
demonstrates that this could be seen as one entered when Mr Tuau was fully
informed of the case against him, rather than as one that was close in proximity to
the trial. The outcome of the report undertaken by Dr Cropp could have been a
reconsideration of the type of charge that Mr Tuau would face. While it was always
reasonably clear that a guilty plea would be entered,28 there was some question mark
hanging over the nature of the charge to which that plea would relate. We also take
account of the fact that while Miller J was informed of the circumstances in which
Mr Tuau was committed for trial, he does not appear to have had the advantage of
considering the clear notation made by Judge Thomas, at the time of committal.29
25
26
27
28
29
At [74].
At [75].
At [76].
For example, his counsel never suggested that Mr Tuau would change his plea if the sentencing
Judge were not to adopt the sentencing indication given in the District Court.
See [40] above.
[46]
In those circumstances, a more generous discount for the guilty plea and
remorse could have been justified. The issue is whether any increase from the 15 per
cent credit actually given is likely to affect the end sentence. In our view, it does not.
The effect of the modest discount is largely offset by the generous discount given for
provocation.30
[47]
For those reasons, we consider that the end sentence of nine years
imprisonment chosen by Miller J should stand.
(c)
Minimum non-parole period
[48]
Miller J imposed a minimum period of imprisonment to reflect the need to
denounce the offending, and to hold Mr Tuau accountable for it. He expressly
disclaimed reliance on the need for such a sentence to act as a deterrent or to protect
the community from Mr Tuau on his release from prison. That being so, the question
arises whether a minimum non-parole period was necessary. Why was this not a
case where release on parole should be left for the Parole Board to determine after
one-third of the finite sentence had been served?
[49]
The answer to the question lies in the approach taken by this Court to
minimum periods of imprisonment in R v Brown.31 In that case, a young man, aged
21 years with no criminal history, had pleaded guilty to charges of attempted murder
and arson. While suffering from a depressive episode, he struck his mother about the
head with a hammer, lit a fire in the kitchen, and left the house. The victim’s injuries
were severe.
She was left blind in one eye and rendered unable to walk
independently or to speak.
[50]
The ability to impose a minimum term of imprisonment springs from s 86 of
the Sentencing Act 2002. In its current form, s 86(1) and (2) provides:
30
31
See [31] above.
R v Brown [2002] 3 NZLR 670 (CA) at [28]–[32]. See also R v Taueki [2005] 3 NZLR 372
(CA) at [134].
[51]
86
Imposition of minimum period of imprisonment in relation to
determinate sentence of imprisonment
(1)
If a court sentences an offender to a determinate sentence of
imprisonment of more than 2 years for a particular offence, it may, at
the same time as it sentences the offender, order that the offender
serve a minimum period of imprisonment in relation to that
particular sentence.
(2)
The court may impose a minimum period of imprisonment that is
longer than the period otherwise applicable under section 84(1) of
the Parole Act 2002 if it is satisfied that that period is insufficient for
all or any of the following purposes:
(a)
holding the offender accountable for the harm done to the
victim and the community by the offending:
(b)
denouncing the conduct in which the offender was involved:
(c)
deterring the offender or other persons from committing the
same or a similar offence:
(d)
protecting the community from the offender.
When Brown was decided, there was no reference to protection of the
community from the offender.
A minimum period could be imposed if “the
circumstances of the offence [were] sufficiently serious to justify a minimum period
of imprisonment that is longer than the period otherwise applicable” under s 84(1) of
the Parole Act 2002, a period of one-third of the finite sentence.32 Notwithstanding
the subsequent amendment to s 86, a minimum term may still be imposed (in an
appropriate case) if directed only at denunciation, accountability and deterrence. 33
[52]
Brown makes it clear that s 86 should not be regarded merely as a “reserve
measure to safeguard against” possible misjudgements that the Parole Board may
make. Rather, it is authority for the following propositions:
(a)
Section 86 can be used when “the offending is so serious that release
after one-third of the sentence would plainly constitute an insufficient
32
33
Sentencing Act 2002, s 86(2), in the form in which it stood prior to 7 July 2004 when the
Sentencing Amendment Act 2004, s 7, came into force.
Sentencing Act 2002, s 86(2)(a), (b) and (c), set out at [50] above. See also, as a recent
illustration of this approach Ikamanu v R [2013] NZCA 510 at [72] and [75].
response in the eyes of the community, even though there may be no
ongoing safety risk”.34
(b)
It is a matter for judicial judgment whether a minimum non-parole
period is required to meet any or all of the relevant sentencing goals
set out in s 86(2) of the Sentencing Act. It is for the sentencing Judge
to review the circumstances as a whole and to apply the statutory test.
In particular, the “central consideration must be culpability which
necessarily is increased by matters such as unusual callousness,
extreme violence, vulnerable or multiple victims and serious actual or
intended consequences”.35
(c)
A minimum term is more likely to have application in cases of serious
offending.
Such crimes “attract longer prison terms with the
consequent wider gap between the appropriate nominal sentence and
one-third in each case”.36
[53]
We see no basis on which to disturb Miller J’s conclusion that a minimum
term of one-half of the finite sentence should be imposed. Ms Mildenhall was
correct, in her oral submissions, when she said that there was a need to denounce
Mr Tuau’s offending by imposing a minimum period because the crime itself,
aggravated by the factors to which we have already referred, was one that “horrified
the community” and could not be marked adequately by imposing a sentence for
which the offender would be eligible for release on parole after serving one-third.37
Result
[54]
For those reasons, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
34
35
36
37
R v Brown, above n 32, at [28].
At [32].
At [33].
Compare with [52] above.