NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE
ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA240/2013
[2013] NZCA 624
BETWEEN
BEN TULI
Appellant
AND
THE QUEEN
Respondent
Hearing:
21 November 2013
Court:
Harrison, Simon France and Dobson JJ
Counsel:
S N B Wimsett for Appellant
J M Jelas and G H Vear for Respondent
Judgment:
10 December 2013 at 11.30 am
JUDGMENT OF THE COURT
A
The appeal against the sentence of nine years’ imprisonment is dismissed.
B
Pursuant to s 34(1)(a)(ii) of the Criminal Procedure (Mentally Impaired
Persons) Act 2003, we order that Mr Tuli be detained in a secure facility as
a special care recipient.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
TULI V R CA240/2013 [2013] NZCA 624 [10 December 2013]
Introduction
[1]
Mr Tuli appeals a sentence of nine years’ imprisonment imposed by
Judge Paul in the District Court at Auckland for a very serious assault and rape
committed three days before Mr Tuli’s 17th birthday.1 The appeal challenges both
the length of sentence, and the decision of the Judge to not order that Mr Tuli be
detained in a secure facility as a special care recipient under s 34(1)(a)(ii) of the
Criminal Procedure (Mentally Impaired Persons) Act 2003.
Description of offending
[2]
On the day in question Mr Tuli lingered in a park which was used as a
pedestrian walkway by members of the public. Shortly after 5.00 pm he approached
a woman walking home from work. He engaged her in conversation. She became
nervous and walked off. Mr Tuli followed. He closed the gap and appeared about to
hit her. She spoke to him, he again walked off and then again he followed her.
Eventually the woman started running and escaped.
[3]
Sadly the next woman pedestrian to come along shortly after was not as
fortunate. Put briefly Mr Tuli approached her swiftly, told her that he was going to
rape her and then kill her, and after brief resistance, rendered her unconscious with a
single punch. He then raped the woman and left her.
[4]
The consequences for the 25 year old victim have been devastating. The
immediate physical damage was a damaged jaw which left her on pureed food for
six weeks and unable to eat properly for three months.
The victim suffered
headaches for months and sensitivity to light and noise.
She has now been
diagnosed with brain damage and has had to undergo intensive rehabilitation to
relearn many basic functions. The effect on her work situation has been significant
since she has been unable for some time to work for any sustained period and unable
to do the tasks her job involved.
1
R v Tuli DC Auckland CRI-2012-204-155, 28 March 2013. On the charges of sexual violation
by rape and sexual violation by unlawful sexual connection Judge Paul imposed concurrent
sentences of nine years’ imprisonment, on the aggravated wounding charge the Judge imposed a
concurrent sentence of four years’ imprisonment.
[5]
Emotionally the situation is just as bad, with the victim having lost
confidence, and living in fear. She no longer feels comfortable in groups or around
strangers and feels she has lost her freedom and independence. It is to be hoped that
some of these effects may ameliorate over time, but there can be no doubt some will
be long lasting and perhaps permanent.
Description of Mr Tuli
[6]
Mr Tuli is now 18 years of age. He has been subject to interventions and
assessments since the age of 11. He suffers from a mild intellectual disability which
seems to flow in part from a brain trauma injury suffered when riding a scooter at
age 10 and hitting another vehicle. However, it is apparent that prior to this incident
there were developmental and behavioural issues. It appears there may have been
earlier occasions of brain injury.
[7]
From a young age, and growing up with violence, Mr Tuli has been regarded
as a bully prone to excessive anger. He has frequently engaged in fights, can be
quite violent and has been often removed temporarily or permanently from schools.
He has injured fellow pupils and has been noted to act inappropriately towards girls.
There have been many offences and incidents, with what seems an inexorable
progression to the current offending.
[8]
The Court has before it a large number of assessments dating back to
January 2010. That report itself recorded a neurological assessment undertaken in
2006 when Mr Tuli was 11. Some other sources relied upon predate that. It has been
a consistent conclusion that Mr Tuli meets the criteria for mild intellectual disability.
IQ testing over the years has uniformly produced a score around 67–68, with below
70 being the level at which a degree of intellectual disability is recognised.
[9]
A recent Mason Clinic assessment notes that Mr Tuli has poorer verbal
comprehension skills than non verbal perceptual reasoning skills. He has some
capacity in both the Samoan and English languages but struggles with both, and his
literacy is poor. This, as can be imagined, leads to issues whereby he may not
understand directions but hides that fact, and the other party does not appreciate his
limits. All reports have identified various particular needs and plans to try and
address these issues.
[10]
It is stating the obvious to observe that without successful intervention
Mr Tuli will continue to pose a high risk of re-offending. The seriousness of that risk
is demonstrated by the present offending.
Length of sentence
[11]
Judge Paul took a 14 year starting point for all the offending, and there is no
challenge to that. Given the end sentence of nine years’ imprisonment it is apparent
that starting point was reduced by five years. This was made up of two years for
youth, one year to reflect Mr Tuli’s reduced mental capacity and two years for the
guilty plea. Concerning the one year figure for mental impairment, his Honour noted
that it was difficult to assess what level of causal link there was between it and the
offending.2
[12]
Mr Wimsett submits each factor was given insufficient recognition.
He
calculates the percentages to be 14 per cent, seven per cent and 14 per cent
respectively. Drawing on all the information available to the Judge, it is submitted
more would be appropriate.
[13]
The capacity to reduce a sentence to recognise the offender’s youth or mental
disability is not in dispute.
Young offenders are often immature, and more
susceptible to pressures and influences.
There are often greater prospects for
rehabilitation and it is well recognised that lengthy jail terms can be crushing. 3 All
these factors have led to discounts which on occasions have been very significant.
Similarly, as regards mental impairment in whatever form it takes, it was noted in
E (CA 689/10) v R that discounts between 12 and 30 per cent have been given.4 The
degree of impairment and the strength of its link to the offending will be relevant
factors, as is the fact the disability may make imprisonment harder.
2
3
4
At [27].
The issues raised by an offender’s youth were recently explored by this Court in Churchward v R
[2011] NZCA 531, (2011) 25 CRNZ 446.
E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
[14]
Inevitably the amount of credit given for these matters will reflect a
balancing of all the various factors, including the nature of the offending and the
risks posed by the offender.
Here, Mr Tuli is an 18 year old with previous
appearances before the Youth Court and a comparatively mild level of disability that
does not seem to have been directly linked to the offending on this day. In saying
that we are not minimising Mr Tuli’s situation which makes troubling reading, to say
the least. But this is an appeal alleging that the three year discount given for these
factors is inadequate, so assessment and comparison is necessary. In Edri v R the
Court considered, on a less serious case of sexual violation by rape, that 33 per cent
was appropriate for similar factors to those present here.5 However, each case is to
be determined on its own facts and Mr Edri was a first offender who it appears did
not present the same high risk of re-offending that Mr Tuli does.
[15]
We do not consider Judge Paul erred.
Mr Tuli’s mental disability poses
challenges but is not of a nature that justified, in the relatively unrelated
circumstances of this offending, a greater reduction. The appropriate discount for
youth is inevitably limited by both his record and the risk he poses. In our view a
combined three year reduction for both factors was not inadequate.
[16]
The other matter raised by Mr Tuli was the adequacy of what we calculate to
be an 18 per cent discount for a guilty plea, not 14 per cent as Mr Wimsett submitted.
In terms of the timing of the plea, there was first to be resolved a very real issue as to
whether Mr Tuli was fit to plead. Once that was resolved, a guilty plea followed
immediately and in these circumstances should be regarded as being at the first
opportunity.
[17]
No reasons were given for a discount less than the available 25 per cent in an
area of offending where the benefits to victims of early pleas are well known, and
significant. The Crown submits, and we agree, that the explanation for a reduced
discount must lie in the strength of the Crown case. Mr Tuli’s DNA had been located
inside the victim and there would also be the evidence of the woman he had accosted
a few minutes earlier. The circumstances of the offending could not possibly give
rise to any issue of consent or belief in consent, and realistically Mr Tuli had no
5
Edri v R [2013] NZCA 264 at [24].
defence. Although we consider a greater discount was possible, we do not consider
the Judge erred in reducing it by nine months.
[18]
Finally, we acknowledge the final sentence of nine years’ imprisonment is a
long sentence for an 18 year old who offended when not quite 17 years of age. It is
always a concern when young people act in such a way as to bring sentences of this
length into play. The Judge was conscious of that, and took such matters into
account when deciding not to impose a minimum non-parole period. We observe
that was a real recognition of these matters because for an adult offender a period of
at least 50 per cent would be almost inevitable given the nature of the offending and
its consequences.
[19]
The final outcome of the sentence is a statutory minimum period in jail of
three years, and the potential to remain in jail for nine years if Mr Tuli’s risk factors
cannot be addressed. We are unable to disagree with either of these figures, and
accordingly the sentence will be confirmed at nine years’ imprisonment.
Disposition under the Criminal Procedure (Mentally Impaired Persons) Act
[20]
Section 34(1)(a)(ii) of the Act allows a court to both sentence a convicted
person to a sentence of imprisonment, and at the same time order that the prisoner be
detained in a secure facility as a special care recipient.
There are various
pre-conditions that must be satisfied (such as obtaining reports, an appropriate
diagnosis, and an appropriate care plan) before such an order can be made. It is
common ground these pre-conditions were met.
[21]
That being so, the test as to whether to make an order is satisfaction on the
part of the court that compulsory treatment or care is required either in the offender’s
interest or for the safety of the public. On this Judge Paul concluded:
[33]
... Determining the appropriate sentence requires balancing a number
of factors since it is seldom that one factor alone will predominate and be the
only factor to consider. There is a need to consider the overall factors in
context objectively.
[34]
Despite interventions such as SAFE there has been escalation and
violence and sexual offending which has brought us to this point to date.
Deterrence and denunciation must be significant factors in this sentencing
today.
[35]
It seems to me when standing back and looking at Mr Tuli’s history
and the risk he presents, the potential for rehabilitation and ultimately the
protection of the public and the community, that is not best served by
imposing a special care order today and I decline to do so.
Mr Tuli appeals against this conclusion.
[22]
It will be helpful first to identify exactly what a disposition under
s 34(1)(a)(ii) would mean. First, Mr Tuli would remain subject to the nine year
sentence. Release prior to sentence end would remain at the discretion of the Parole
Board. When and if the caregivers conclude he is ready to leave the facility, if his
sentence has not ended, he will be returned to prison.6
[23]
Second, if at the end of the sentence Mr Tuli were still in care, the s 34 order
would become an order made under s 45 of the Intellectual Disability (Compulsory
Care and Rehabilitation) Act 2003.7 That order will last for six months and may be
renewed.
[24]
Third, whilst a special care recipient, Mr Tuli would be in a secure facility
and subject to a care plan specifically designed to his needs. However, there would
be authority for Mr Tuli’s care co-ordinator to authorise leave from the facility for
periods of up to seven days.8
One would obviously expect such power to be
exercised with care, but it is available and designed to assist with rehabilitation and
reintegration. Theoretically, if made subject to an order immediately, and if good
progress were made, instances of such leave could occur prior to the expiry of the
three year period Mr Tuli is required to serve as a minimum.
[25]
It was these considerations that led the latest of the report writers,
Dr Mhairi Duff, to recommend Mr Tuli serve the initial part of his sentence in prison
before authorities considered a transfer to a secure facility. It is plain from the
sentencing remarks that the Judge gave considerable weight to this report.
6
7
8
Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 71.
Intellectual Disability (Compulsory Care and Rehabilitation) Act, s 69.
Intellectual Disability (Compulsory Care and Rehabilitation) Act, s 67.
[26]
Dr Duff set out for the Court the implications of a sentence of imprisonment
only on the one hand, or a sentence of imprisonment combined with a s 34
disposition order on the other. Dr Duff’s concern was that “optimal rehabilitation
cannot be meaningfully undertaken until Mr Tuli is within reach of community
reintegration”. It can be demoralising and counter-therapeutic to live in a secure care
environment for many years without realistic prospects of release. Dr Duff also
fairly notes that secure beds, such as Mr Tuli would be assigned, are scarce resources
and understandably the desire is to see them employed to their best advantage.
[27]
In terms of the “sentence of imprisonment only” option, it is not to be thought
it is an empty alternative. Corrections have an array of courses and facilities that can
target some of Mr Tuli’s needs, particularly in the area of education and trade
training. Information we have received subsequently reveals that in prison Mr Tuli
is attending a one-on-one literacy and numeracy course.
And as noted, at an
appropriate time application can be made to transfer Mr Tuli to a secure facility.
[28]
Subsequent to Dr Duff’s initial report and in keeping with the requirements of
the Act, an Individual Care and Rehabilitation Plan was prepared, and Dr Duff
updated her report in response. Her conclusion was expressed in these terms:
The primary conclusions offered in the full report remain unchanged.
Mr Tuli presents with a number of factors that are seen within a group of
offenders who are at high risk of future violent offending and he has
identified security and rehabilitative needs. From a clinical perspective the
focus is upon addressing rehabilitation and not addressing any punishment
elements of sentencing. The issue of where sentence may be delivered and
the extent to which the courts will seek an element of punishment and a
guarantee that Mr Tuli will not be at large in the community continues to be
the primary issue for the court to adjudicate. The identified barriers to
rehabilitation particularly related to Mr Tuli’s low intelligence and education
and employment deficits will warrant intellectual disability adapted
rehabilitative input at some point in his journey to safe reintegration into
society and this is optimally offered during the 2–3 years leading up to
re-integration into society and including gradually increasing self
management and community access to consolidate rehabilitative gains in a
non-institutional setting.
[29]
Mr Wimsett has ably represented Mr Tuli and put forward all that can be said
on his behalf. In addition he has presented the Court with updated information from
the prison. We have noted that Mr Tuli is doing a literacy and numeracy course, on a
one-on-one basis as the reports recommend. The negative information that emerges,
however, is that Mr Tuli is acting up, being disruptive and seems to have been drawn
into a gang environment. The obvious concern is that a prolonged time in such an
environment may serve to further diminish his rehabilitative prospects.
[30]
It is apparent from the reports that the timing of Mr Tuli’s placement into the
intensive care programme will be critical. As Dr Duff observes, the programme will
work best as a prelude to Mr Tuli’s release, assuming the programme is successful.
She recommends transfer be considered two to three years prior to integration, but
the dilemma for a Court is when that might be. It can be known for certain that
Mr Tuli must serve three years, eight months of which has been served since
sentencing.9 So there is at least around two years to go, but how much beyond that
will be determined by safety issues, and cannot be ascertained at this point.
[31]
Eight months on from sentencing, a disposition under s 34 would now occur
more comfortably within Dr Duff’s two to three year timeframe. Also now armed
with updated information from the prison, we have come to the view that an order
under s 34 is appropriate. We are influenced by these factors:
(a)
As noted, it is now clearly within the period recommended by
Dr Duff.
(b)
Mr Tuli is only 18 years old and the path he appears to be heading
down in prison is troubling. If transfer is delayed until three years has
been served in prison, rehabilitation options may be permanently lost.
(c)
From society’s viewpoint, Mr Tuli poses a real risk for the future, and
is a high risk of serious offending. Taking whatever steps can be
taken to give the best opportunity to ameliorate this situation is where
the interests of the public lie.
(d)
The underlying sentence remains in place. The report writers all note
that there is no certainty as to whether the proposed intensive steps
will work. If they do, in three years time Mr Tuli will have more than
9
There may also be remand time to be added.
served the punishment part of his sentence, and society will be much
better protected. If they do not work, then the nine year sentence
remains in place.
[32]
This was always a finely balanced decision and now, given the new factors
we have identified, in terms of s 34(2) of the Criminal Procedure (Mentally Impaired
Persons) Act, the Court is satisfied that an order under s 34(1)(a)(ii) of the Act is
required in the interest of public safety. Such an order will also be in Mr Tuli’s
interest, but it is the public safety aspect that has driven the outcome.
Result
[33]
The appeal against sentence is allowed in part. The appeal against the end
sentence of nine years’ imprisonment is dismissed. However, we make an order
under s 34(1)(a)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act that
Mr Tuli be detained in a secure facility as a special care recipient under the
Intellectual Disability (Compulsory Care and Rehabilitation) Act.
Solicitors:
Graham & Co, Auckland for Appellant
Crown Law Office, Wellington for Respondent