R v Timoti
[2024] NZHC 70
•2 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-092-006579
[2024] NZHC 70
THE KING v
JOSHUA TIMOTI
Appearances: N E Walker for Crown
N J Manning and S Brickell for Prisoner
Sentenced:
2 February 2024
SENTENCING NOTES OF ANDREW J
R v TIMOTI [2024] NZHC 70 [2 February 2024]
Introduction
[1] Tēnā koe Mr Timoti, you may remain seated until I ask you to stand at the conclusion of my remarks.
[2] Mr Timoti, you appear this morning for sentence having pleaded guilty to a charge of manslaughter.1 Your actions resulted in the death of Mr Douglas. That was, of course, a tragic loss of life and nothing I say today in sentencing can bring him back. You are also to be sentenced on a charge of injuring with intent to injure.2 That offence was committed against a very senior police officer.
[3]The charge of manslaughter carries a maximum penalty of life imprisonment.3
[4] The critical issues I must determine today are firstly, the starting point for your sentence, whether there should be discount for personal circumstances and whether a minimum period of imprisonment should be imposed. That is what we lawyers and Judges call the MPI – namely, the minimum period of imprisonment you must serve before becoming eligible for parole.
[5] I am going to begin my comments by addressing the facts of your offending and as set out in the Police summary of facts. I must of course sentence you on that basis.
Relevant facts
Manslaughter
[6] On 18 August 2022, you displayed signs of paranoia and erratic behaviour. You decided to quit your job and to return home to be with your wife and daughter. In the early evening you were drinking beer with your brother-in-law, Mr Tamala.
[7] Following an altercation on Park Avenue, Ōtāhuhu, you returned to your home enraged and agitated. You grabbed two knives from the kitchen, which your wife convinced you to return. You then started to calm down. However, once she left your anger arose again and you had to be calmed down a second time by Mr Tamala.
1 Crimes Act 1961, ss 160(2)(a) and 171.
2 Crimes Act 1961, s 189(2); maximum penalty of five years’ imprisonment.
3 Crimes Act 1961, s 177.
[8] Minutes later, you noticed two men at a nearby unit. When Mr Tamala was in the bathroom, you retrieved the two knives (one 34 cm and one 23 cm) and went outside to confront Mr Douglas and Mr Lalogafau with a knife in each hand.
[9] You approached Mr Douglas yelling “where’s the kids, where’s my kids?”. You then punched him in the face, causing him to fall backwards and onto the ground. Then you stood over Mr Douglas and repeatedly stabbed him with both knives in a “jackhammer” motion. Mr Douglas lay on the ground trying unsuccessfully to get away.
[10] Mr Lalogafau kicked you off Mr Douglas, causing you to fall over. Mr Douglas managed to stand up and slowly started walking away. However, you quickly stood up and ran after him, punching and stabbing him again repeatedly – this time to the head and body, using the same “jackhammer” motion.
[11] Mr Lalogafau was eventually able to pull you off Mr Douglas, causing him to fall to the ground lying face down. Mr Douglas managed to stand and stumbled back towards Mr Lalogafau’s house, before collapsing on the ground and ultimately succumbing to his stab wounds.
[12] The post-mortem examination revealed that Mr Douglas suffered three stab wounds to his torso, four wounds to his head, and four wounds to his left upper limb one of which was a stab wound.
[13] When spoken to by the Police at the scene you referred to having heard voices in your head. You also referred to the “killing of kids”.
Injuring with intent to injure
[14] At 11.50 pm that same evening and following your apprehension by the Police, Detective McMahon unlocked and opened the door to the holding cell to speak with you. You punched him to the left side of the head with your right fist. An officer who had been sitting outside the holding cell stood up and tried to restrain you. However, you managed to punch the left of Detective McMahon's head at least two more times with your right fist, while swinging wildly with your left arm in between each hit. It
was only after another four officers arrived that day that they were able to restrain you. You also lashed out at and punched the officers, and this incident was captured on several CCTV cameras.
Victim Impact Statements
[15] I have received a victim impact statement from Ms Douglas on behalf of the deceased’s whānau and of course you have heard that statement read out in court today. I have also received and considered a victim impact statement from Detective Nicholas McMahon.
[16] The victim impact statement of Ms Douglas is a heartfelt expression of grief and real anguish at the loss of a wonderful brother and friend. He was a kind man who lived a full and meaningful life which you so unfairly took from him. Ms Douglas has spoken of how hard this death has been for their whānau. I acknowledge the real anguish and heartache they have experienced and continue to experience. I also thank her for the very measured way that she presented her statement this morning.
[17] I acknowledge also, of course, the trauma and severe consequences of the attack on Detective McMahon.
Personal circumstances
[18] In considering what sentence is appropriate, I have had reference to various court documents, including two provision of advice to courts reports (PAC reports). I have also read and had regard to the cultural report which has been discussed in the submissions this morning.
[19] Furthermore, I have also had regard to and read the various psychiatric reports. Those were, of course, attached to the submissions of Ms Manning.
[20] I note that you are 36 years old and have no previous convictions. You are married with a young child.
Purposes and principles of sentencing
[21]The purposes of sentencing that are particularly relevant to this case are:
(a)Holding you, as the offender, accountable and promoting in you a sense of responsibility for the harm done to the victims and their whānau;4
(b)Denouncing your conduct, as the offender, and deterring others from committing the same or similar offending;5 and
(c)Protecting the community from you, as the offender.6
[22]The relevant principles of sentencing that apply here are:
(a)Taking into account the gravity of the offending and your culpability;7
(b)Taking into account the seriousness of the offences;8
(c)Taking into account the effect of your offending on the victims and their whānau;9 and
(d)Taking into account the outcome of the restorative justice processes that have occurred in this case.10
What is the appropriate starting point?
[23] The first stage in the sentencing process is to set the starting point. This is done by reference to the aggravating and mitigating factors of your offending and to other cases similar to yours. After that I shall consider what adjustments need to be made to the starting point to account for your personal circumstances.11
[24] There is no guideline judgment for manslaughter. That is because manslaughter is recognised as being a crime which may be committed in wide-ranging
4 Sentencing Act 2002, s 7(1)(a) and (b).
5 Sentencing Act 2002, s 7(1)(e) and (f).
6 Sentencing Act 2002, s 7(1)(g).
7 Sentencing Act 2002, s 8(a).
8 Sentencing Act 2002, s 8(b).
9 Sentencing Act 2002, s 8(f).
10 Sentencing Act 2002, s 8(j).
11 Moses v R [2020] 3 NZLR 583, which refers to a two-step methodology. See also R v Edwards
[2022] NZHC 2209 at [16].
circumstances.12 The proper sentencing approach in manslaughter cases where serious violence is involved, is to cross-reference the starting point, determined by the application of the guideline judgment for wounding with intent to cause grievous bodily harm, against comparable manslaughter settings.13 Adopting that approach provides a degree of cross-checking. Either approach should end up at about the same.
[25] The guideline judgment for wounding with intent to cause grievous bodily harm is R v Taueki.14 There the Court of Appeal sets out three bands for setting starting points. Under band three, starting points range between nine and 14 years’ imprisonment.15
Crown Submissions
[26] I now address the various submissions made by the parties this morning, and of course they filed submissions in writing and I have read all of those.
[27] Ms Walker, on behalf of the Crown, submitted that a starting point of nine-and- half-years’ imprisonment should be adopted for the manslaughter conviction. She submitted that six of the aggravating factors as set out in R v Taueki are present in your offending: premeditation,16 use of weapons,17 attacking the head,18 extreme violence,19 vulnerability,20 and serious injuries resulting in death.21
[28] The Crown submitted that there are no mitigating factors in your offending. It submitted that your “voluntary substance use” – to quote the Crown – is not a mitigating feature.22
[29] Ms Walker submitted that, as there are no mitigating factors, but several, serious aggravating factors, your offending falls into band three of the Taueki
12 Everett v R [2019] NZCA 68 at [24].
13 R v Taueki [2005] 3 NZLR 372 (CA).
14 At [27], citing Ioata v R [2013] NZCA 235 at [25] and [28]; R v Edwards, above n 11, at [17].
15 At [34](c).
16 Sentencing Act 2002, s 9(1)(i); R v Taueki, at [31](b).
17 Sentencing Act 2002, s 9(1)(a); R v Taueki, at [31](d).
18 R v Taueki, at [31](e).
19 Sentencing Act 2002, s 9(1)(a) & (e); R v Taueki, at [31](a).
20 Sentencing Act 2002, s 9(1)(g); R v Taueki, at [31](i).
21 Sentencing Act 2002, s 9(1)(d); R v Taueki, at [31](c).
22 Sentencing Act 2002, s 9(3); R v Matara [2017] NZHC 2198 at [15].
categories which I have just noted sets a range between nine and 14 years imprisonment.23
[30] For the injuring with intent to injure conviction, Ms Walker submitted that, following the Nuku v R decision, a starting point of up to three years’ imprisonment would be appropriate. That is based on two aggravating factors: attacks to the head,24 and offending against a public official.25
[31] The Crown then submitted that, considering the totality of your offending, an uplift of six months to the starting point of the manslaughter sentence would be appropriate, bringing the total starting point to 10 years’ imprisonment.
[32] The Crown also submitted that an MPI of 40 – 50 per cent should be imposed to satisfy the statutory purposes.26
Defence Submissions
[33] Ms Manning, on your behalf, submitted that your offending falls within band two of the Taueki categories. That provides a starting point of between five to 10 years’ imprisonment. This category is appropriate for GBH offending which features two of the three aggravating features.27 Ms Manning’s submissions drew on several cases involving “overlapping” factors to support a submission that your offending exhibited only two aggravating features.28
[34] Ms Manning also drew on the Court of Appeal’s judgment in Orchard v R to submit that counting the use of a weapon and the attack to the head as separate aggravating factors would constitute “doublecounting”. She submitted that your offending only presented the aggravating factors of serious injury and extreme violence.
23 The Crown referred to what it said were three comparable cases in reaching a starting point of nine-and-a-half years’ imprisonment; R v Day [2014] NZHC 3412; R v Olley [2012] BCL 128; R v Edwards, above n 11.
24 Nuku v R [2013] 2 NZLR 39 at [38].
25 Sentencing Act 2002, s 9(1)(fa).
26 Section 86(2).
27 R v Taueki, above n 13, at [38].
28 Orchard v R [2019] NZCA 529; Flavell v R [2011] NZCA 361; Goulton v R [2014] NZCA 488.
[35] Ms Manning contended for a starting point of six years’ imprisonment, taking into account the aggravating factors in Taueki. She further submitted that there should be an uplift of three months only on a totality basis for the second charge of injuring with intent.
[36] Ms Manning strongly rejected the Crown argument that the aggravating factor of premeditation was present. She emphasised your spontaneous response to your psychosis induced by the erroneous belief that you were acting in defence of children who you thought were being attacked by the deceased. Ms Manning submitted that you were clearly suffering from a mental illness at the time of this offending, and she said the evidence demonstrates that this was not directly related to methamphetamine. She noted that all three psychiatrists agreed that you were having a psychotic episode at the time of the offending.
Analysis
[37] I agree with the submission of Ms Manning that it is wrong, on the facts here, to conclude that there was any real element of premeditation. The only real and plausible explanation for your offending, horrific crimes, would appear to be your impaired mental state, including symptoms of persecutorial beliefs.
[38] I do, nevertheless, find that in assessing the starting point, your offending falls within band three of R v Taueki, that is the most serious category (a range of nine to 14 years’ imprisonment). I find that the following aggravating factors were present:29
(a)The use of weapons. You attacked Mr Douglas with two kitchen knives, using one in each hand. The use of such lethal weapons is a “serious aggravating factor”.30
(b)Attacking the head. In the second attack, you targeted Mr Douglas’ head with the knives, inflicting several wounds to his scalp, cheek, lip and jaw. I reject Ms Manning’s submission of “double counting”. The
29 Sentencing Act 2002, s 91.
30 R v Taueki, above n 13, at [31](d).
Crown submission rightly focuses on the second attack in submitting that an attack on the head was an aggravating factor.
(c)Extreme violence. You stabbed Mr Douglas repeatedly with both knives using a “jackhammer” motion. The attack was also prolonged
– after being pushed away by Mr Lalogafau, you ran back to Mr Douglas and stabbed him again multiple times with a “jackhammer” motion before finally being subdued by Mr Lalogafau.
(d)Vulnerability. You punched Mr Douglas and caused him to fall to the ground. Mr Douglas was vulnerable in that position when you stabbed him multiple times; he was unable to escape.
(e)Serious injuries resulting in death. The Crown responsibly acknowledges that this is a factor inherent in the offending. However, this is a gravely aggravating factor.
[39] I have already noted your psychotic state at the time of the offending. The facts suggest that you were delusional and you made express reference to the killing of children. I intend to address your mental health issues when I discuss your personal circumstances. This is an important factor and I need to give it careful consideration.
[40] In reviewing all of the cases and having regard to the aggravating factors, I find that there should be a starting point on the manslaughter charge of a term of imprisonment of nine-and-a-half years. I also find there should be an uplift of six months’ imprisonment for the separate charge of injuring with intent to injure. It is important, as the Crown properly notes, to have regard to the principle of totality.
[41]The starting point I reach, therefore, is one of ten years’ imprisonment.
[42] I now turn to address the issue of whether, in light of your personal circumstances, there should be an adjustment to that starting point. That will, of course, result in the end sentence of imprisonment that I impose on you.
Adjustment for personal circumstances
[43] The Crown acknowledges that there are no aggravating factors personal to you which I should take into account. I agree with that submission.
[44] As to mitigating personal factors, the appropriate discounts for such factors must be proportionate to the overall sentence.31
Mental health – psychosis
[45] The Court of Appeal in Shailer v R32 held that mental health disorders falling short of a defence of insanity may be taken into account in the sentencing process.33 The Court noted that it may be taken into account as a mitigating circumstance relevant to the offender (rather than the offending)34 and the Court there expressly referred to s 9(2)(e) of the Sentencing Act 2002:
That the offender has or had at the time when the offence was committed, diminished intellectual capacity or understanding.
[46] In R v Simon,35 her Honour Katz J granted a discount for a likely mental health disorder that had contributed to the offending. Her Honour held that although methamphetamine use may have contributed there to the development of the defendant’s mental health issues, there was no evidence that he was under the influence of methamphetamine at the time of the offending itself. She held that was relevant because the Court cannot take into account by way of mitigation the fact that an offender was affected by the voluntary consumption or use of methamphetamine at the time of the offending.36
[47] I note – and this is important – that Dr Deane, the expert psychiatrist instructed by the Crown, concluded in his addendum report of 3 September 2023 as follows:
I note that we [all the expert psychiatrists instructed] have all received a consistent history from Mr Timoti. His account, which appears consistent
31 R v Poono [2022] NZHC 3416 at [50].
32 Shailer v R [2017] NZCA 38.
33 Shailer v R, above n 32, at [44].
34 Shailer v R, above n 32, at [45].
35 R v Simon [2017] NZHC 235; see also R v Poono [2017] NZHC 566.
36 Sentencing Act 2002, s 9(3).
with the other evidence, describes a distorted mental state with symptoms of persecutory beliefs, held with delusional intensity, and emotional arousal. These symptoms cannot be attributed to intoxication alone, as both his history and drug testing suggest he did not have high levels of methamphetamine in his system at the material time. These symptoms appear to have driven Mr Timoti’s offending, and his actions would otherwise be inexplicable.
[48]The report further noted as follows:
Despite just relying on this self-report, we all appear to agree that, because of his symptoms and abnormality of this mental state, regardless of whether this meets criteria for a disease of the mind, his moral reasoning was impaired.
[49] In the circumstances, I find that a modest discount should be allowed for the psychosis that you were experiencing at the time of the offending. It may be, as in the R v Simon case, that methamphetamine use may have exacerbated or contributed to the development of any mental health issues. However, there is no evidence here that you were under the influence of it at the time of the offending itself, and I accept Ms Manning’s submission that there was an underlying vulnerability independent of methamphetamine.
[50] There is, however, some force in the Crown’s submission that your impaired state is, at least to some extent, already reflected in the lesser charge of manslaughter.
[51] Having regard to all of these factors, I conclude that there should be a ten per cent discount for impaired mental health.
Guilty plea
[52] The Court of Appeal in Moses v R37 held that any discount for a guilty plea is to be applied at the second stage of the sentencing process – that is, when determining the aggravating and mitigating factors personal to you, the offender. A guilty plea discount, as with all percentage uplifts to discount, should be quantified as a percentage of the starting point and should not exceed 25 per cent.38
[53] The Crown accepts here that a guilty plea discount of 25 per cent is available. I agree.
37 Moses v R, above n 11.
38 Moses v R, above n 11, at [47].
[54] I note that you pleaded guilty on 6 September 2023, following receipt of psychological reports that resulted in the charge of murder being amended to manslaughter.
Previous good character
[55] Previous good character will usually amount to a mitigating factor even for serious offences.39 In R v Findlay, the Court of Appeal explained that a discount for previous good character exists to recognise:
(a)That a fall from grace is punishment in itself; and
(b)The greater rehabilitation potential where community involvement and good character bears witness to a reduced probability of re-offending.40
[56] As I have already noted, you have no previous convictions and I have also had regard also to the letters of support filed by members of your community.
[57] I find that a discount of five per cent should be applied for your previous good character.
Remorse, restorative justice and prospects for rehabilitation
[58] I note that on 2 November 2023, you attended a restorative justice conference. Ms Douglas, who I have heard from today, attended as a victim. You apologised and expressed remorse for your actions. I accept that these were genuine.
[59] I also acknowledge that as a first-time offender, you are likely to have reasonable prospects for rehabilitation. The PAC report notes that your risk of re- offending are assessed as low.
[60] I find that a discount of five per cent is appropriate to recognise your remorse, engagement with restorative justice and prospects for rehabilitation.
39 R v Howe [1982] 1 NZLR 618 (CA) at 629.
40 R v Findlay [2007] NZCA 553 at [91], subsequently cited with approval in Davidson v R [2011] NZCA 356 at [16].
Cultural factors
[61] I have read and given consideration to the comprehensive cultural report of 2 October 2023. That report reinforces your troubled mental health history. The report is obviously, in my view, of relevance and value, but I find that there should be no further discounts made for personal factors. As already noted, discounts for personal factors must be proportionate to the overall sentence.
Total adjustment
[62] I conclude that there should be a total discount of 45 per cent from the starting point for personal mitigating factors (i.e. 10 per cent for mental health, 25 per cent for guilty plea, five per cent for previous good character and five per cent for remorse and restorative justice).
[63] That results in an end sentence for the manslaughter conviction of five-and-a- half years’ imprisonment.
Minimum Period of Imprisonment (MPI)
[64] The Crown submits that I should impose a minimum period of imprisonment of 40 – 50 per cent. Ms Manning submits that no MPI should be imposed.
[65]The relevant principles for the imposition of an MPI are:41
(a)Holding you, as the offender, accountable for the harm done to the victim and to the community by the offending;
(b)Denouncing the conduct in which the offender was involved; and
(c)Deterring the offender or other persons from committing the same or a similar offence.
41 Sentencing Act 2002, s 86(2).
[66] I find here than a MPI should be imposed, namely a MPI of 40 per cent. That, in my view, would be consistent with the purposes of accountability, denunciation, deterrence and protection of the community. In my view, this is consistent with the approach adopted by this Court in the R v Olley42 and R v Edwards decisions.43 Furthermore, in the R v Matara decision,44 which concerned an attempted murder, ostensibly driven by methamphetamine-induced psychosis, Courtney J considered a MPI of 40 per cent was appropriate notwithstanding Mr Matara’s reduced culpability by dint of that psychosis.45
Conclusion and sentence
[67]Mr Timoti, would you now please stand.
[68] Mr Timoti, for the manslaughter of Mr Douglas, I sentence you to a term of imprisonment of five-and-a-half years with a minimum period of imprisonment of 40 per cent of that term, namely two years two months and 12 days’ imprisonment.
[69] On the charge of injuring with intent to injure, you are sentenced to three months and nine days’ imprisonment and that is to be served concurrently.
[70]Please stand down.
Andrew J
42 R v Ollie, above n 23.
43 R v Edwards, above n 11.
44 R v Matara [2017] NZHC 2198 at [15].
45 R v Matara, above n 44, at [21].
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