R v Tione

[2016] NZHC 2439

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-055-002047 [2016] NZHC 2439

THE QUEEN

v

TIONE TIONE

Hearing:	13 October 2016
Appearances:	Y V Yelavich and M K Regan for the Crown S Cassidy and M Allen for the Defendant
Sentence:	13 October 2016

SENTENCE OF EDWARDS J

Solicitors:           Kayes Fletcher Walker Limited, Auckland

Public Defence Service, Auckland

R v TIONE [2016] NZHC 2439 [13 October 2016]

Introduction

[1]      Mr Tione, I am sentencing you today for the murder of Troy Wright.  A jury found you guilty of that murder charge after a trial in this Court.

[2]      In sentencing you I shall:

(a)       Summarise your offending;

(b)      Explain the impact of your offending on Troy’s family;

(c)       Explain your personal circumstances; and

(d)      Explain how I reached the sentence that I am going to deliver.

[3]      The sentence for murder is life imprisonment unless it would be manifestly unjust.1   There is no suggestion that a sentence of life imprisonment would be unjust in your case and that is the sentence that I intend to impose.  The question I must decide is what minimum period of imprisonment should be imposed.   That is the term you must serve before being eligible for parole.

[4]      Before I go on, I do want to acknowledge the family of Troy Wright who are in Court today.  The sentencing process cannot respond adequately to the loss of a loved one in such senseless circumstances.  I thank you for your courage in attending Court  today,  and  throughout  the  trial.    It  is  clear  that  Troy  had  a  loving  and supportive family.

Summary of offending

[5]      Mr Tione, I now summarise your offending.

[6]      By all accounts Troy Wright was a kind and gentle man.  He was 43 years old at the time of his death.  He lived in a one-bedroom house on his own and was on a

sickness benefit.  That was because he had schizophrenia which he was managing

1      Sentencing Act 2002, s 102(1).

through medication.   He was assisted by a variety of community agencies and dedicated, caring individuals, many of whom gave evidence at the trial.

[7]      You met Troy in 2015.   You formed a friendship.   It was not, however, a friendship of equals.  In the weeks leading up to the murder, you showed an interest in moving from the caravan park where you were living to Troy’s home.  You had already shifted some of your things into his house and had sent text messages to your family telling them that you had secured a new place. But, in the days before the murder you had been told that your application to take over the tenancy of Troy’s house had been declined.

[8]      On the evening of 22 September 2015 you spent the day helping your brother move into his new place.  You then spent the evening drinking with your brother and his partner, sharing four to five boxes of Flame beer over the course of the evening. In the early hours of the morning an argument developed and you left the house angry and drunk.

[9]      You  did  not  go  back  to  the  caravan  park.     Instead  you  walked  to Troy Wright’s place.   What exactly happened when you arrived at Troy Wright’s place is unknown.  You told police that you got into an argument over a cigarette; that Troy threw a punch at you which missed; and you then punched him a number of times. There is no other evidence supporting that account.

[10]     What we do know is that you beat Troy to death in his bedroom in the early hours of that morning.  Troy’s body was found in a pool of blood.  He had multiple head and chest injuries which were consistent with him having been repeatedly punched, kicked and stomped.

[11]     You did not immediately seek help for Troy.  You rang your brother and he told you to ring an ambulance; but you did not follow that advice.  Instead, you tried to clean up the blood; changed your clothes; and packed up belongings, including an electric frypan and food from the fridge, into bags which you took from the house. At some time you returned to the caravan park to pick up your mail.    You then

arranged for your ex-partner’s mother to pick you up.   It was at your ex-partner’s

urging that you finally called an ambulance from a phone box.

[12]     Your ex-partner and her mother took you to your aunt’s place.  She persuaded

you to call the ambulance again, and the police. You were arrested at her house.

[13]     In your police interview, you did not deny hitting Troy that morning.  You told the police that the mental health issues that both you and Troy had caused the fight which led to Troy’s death.  You said that the fight “just happened” and you had no intention to hurt anyone.

Impact of your offending.

[14]     I turn to the impact of your offending.

[15]     The loss of Troy has changed the life of Troy’s family forever.  As we have heard today, Troy’s mother has been in shock since the murder.  She has relived the ordeal over and over again.  The trauma she must have felt seeing Troy’s body in such a bad condition that she could not identify him is unimaginable.  Her health has suffered considerably and she is struggling to deal with the stress and the grief of losing her son.

[16]     Troy’s brother speaks of difficulties with sleep, and the resentment and anger that he harbours towards you.  He is less trusting and less outgoing and struggles to find joy in his day.  There is also the guilt that the family have suffered because they feel they did not protect Troy from you and could not keep him alive.  They are, of course, not to blame.

Your personal circumstances

[17]     I turn to your personal circumstances.

[18]     You are 40 years old.  You were raised by your mother until she passed away in late childhood and then you were brought up by relatives.  You had a troubled

education,  having  been  expelled  from  a  number  of  schools  for  bad  behaviour, fighting and dealing in drugs.

[19]     At the time of the offending you had six children ranging in age from nine to

22 years old.

[20]     You have a past history of abusing alcohol, methamphetamine and cannabis. Alcohol, and possibly cannabis, featured in your offending that morning.

[21]     You have had intermittent contact with mental health services since 2008 and you have previously been prescribed anti-psychotic drugs.  Following Troy’s death, your mental health deteriorated and you were admitted to the Mason Clinic for assessment.  You were diagnosed with either schizo-affective disorder or bipolar affective disorder at that time. A diagnosis of schizophrenia has been confirmed in a

psychiatrist’s report prepared for the purpose of this sentencing.2    In addition you

have been diagnosed with anti-social personality disorder and polysubstance abuse.

[22]     Your mental illness is characterised by delusions and disorder of perception in terms of hearing voices and disorganised thought processes.  Your symptoms can also impact upon your mood, causing you to become irritable, and anxious.   The report I have received records you as having suicidal thoughts.  You have been assessed as having a low to medium risk of deliberate self-harm and a high risk of violence when distressed or under the influence of substances.

[23]     You are currently receiving appropriate and necessary treatment for your mental illness from the forensic prison team.  You are well supported by that team and there is no recommendation for any inpatient treatment at this time.

Sentencing framework

[24]     I now turn to the sentencing framework I must follow in determining your sentence.

2      Dr Karayiannis’ report dated 15 September 2016.

[25]     In sentencing you, I have regard to the purposes and principles in ss 7 and 8 of the Sentencing Act 2002.  In particular, it is important to hold you accountable and responsible for the harm you have done; to provide for the interests of the victim’s family;  to  denounce  your  conduct;  and  to  deter  you  and  others  from  similar offending; and to assist in your rehabilitation.   I must also acknowledge the seriousness of your offending and impose a sentence consistent with other similar offending.  The views of your victims and your personal circumstances are also relevant in setting the sentence.

[26]     As I said at the outset, there is no dispute that a sentence of life imprisonment is appropriate in your case. The sole issue is the minimum period of imprisonment.

[27]     If I find one or more of the aggravating factors specified in s 104 of the

Sentencing Act is present then I must impose a minimum period of imprisonment of

17 years unless that would be manifestly unjust.

[28]     The  Court  of  Appeal  has  set  out  a  two-step  process  in  an  assessment involving s 104:3

(a)       First, I must consider what your degree of culpability is in relation to the range of murders that come before the courts.  This includes all aggravating factors, including those within s 104, and all mitigating factors.   On that basis I must decide what minimum term of imprisonment is justified.

(b)Second, if I conclude that a minimum term of imprisonment would be less than 17 years I must then decide whether to impose a minimum term of 17 years would be manifestly unjust.  If so, the minimum term is reassessed to what I consider justified.

[29]     Finally, in fixing a minimum period of imprisonment I must have regard to the principles and purposes of sentencing, and it must satisfy the following purposes:

3      R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54]; and R v Turner [2016] NZCA 381 at [41]–

[42].

(a)       Holding  you  accountable  for  the  harm  that  you  have  done  to

Troy Wright and the community; (b)    Denouncing your conduct;

(c)       Deterring you or other persons from committing the same or similar offending; and

(d)      Protecting the community.

Culpability and s 104

[30]     I now turn to the first step in the process which is to assess your culpability by looking at the aggravating and mitigating features of your offending.

Aggravating and mitigating features of the offending

[31]     In  your  case  there  are  three  aggravating  features,  at  least  one  of  which engages s 104.

[32]     The first is the brutal and callous nature of the assault.  I know this evidence may be very difficult for Troy’s family to listen to but it is necessary that I describe Troy’s injuries in some detail. Troy had 59 impact injuries to his head, chest and body.  Seventeen of those impact injuries were to the head and chest area.  There was bleeding in and across Troy’s brain, and the beating was so severe that the brain itself suffered an injury.  There was a sub-dural and sub-arachnoid haemorrhage, and fractures to the voice box.

[33]     Troy had a broken sternum and a number of broken ribs in multiple places. There were shoe tread marks left on his body.  He must have been stomped on with severe force to have sustained those injuries and it is difficult to see how they could have been inflicted unless he was lying on the ground at the time.  There was extensive bruising, skin splits, lacerations and bleeding.  Troy’s eye sockets were so blackened, bruised and swollen that his face was unrecognisable.   He was left in

such a bad condition that his own mother was unable to identify him when she viewed the body.

[34]     In  contrast,  you  sustained  no  injuries.    That  suggests  the  attack  was  a completely one sided affair.

[35]     I consider your offending to involve a degree of callousness as is evident from your lack of concern for Troy immediately after your attack.  Your counsel has stressed that the arm across Troy’s body is evidence of an ineffectual attempt to put him in the recovery position.  Even if that is the case, the fact is that you did not immediately ring an ambulance or seek any other help for Troy.  Your primary concern was for yourself.

[36]     I have considered whether the nature of the murder engages s 104.  Murders almost always involve elements of brutality, cruelty, depravity or callousness, but it is only those which involve one or more of the elements to a “high level” that will fall within s 104.

[37]    Your counsel submits that your offending does not reach the high level of brutality and callousness required to bring it within s 104.  He has referred me to a number of cases involving comparable offending.4   I have read all those cases.

[38]      I consider your offending to be more serious than R v Aiono. While that case involved punching and stomping, it also involved provocation and an ensuing fight – features which are not present in your case.  In Churchis v R the Court found that s 104 was triggered by circumstances other than the nature of the offending, and so did not need to consider the brutality of the attack.   I do, however, agree that the gravity of your attack is marginally less serious than in R v Turner, which involved callousness to a much greater degree than yours.   But that does not necessarily mean

that your offending falls outside s 104 (1) (e).

4      R v Aiono [2012] NZHC 1752; R v Churchis [2014] NZHC 2257; R v Pirini HC Whangarei CRI-

2010-027-448, 22 April 2010; R v MacLaughlin HC Auckland CRI-2004-092-4430, 11 October

2005;  R  v  Tiumalu  HC  Wellington  CRI-2005-091-581, 9  November  2006;  R  v  Duff  HC Wellington CRI-2008-091-98, 3 October 2008; and R v Turner, above n 3.

[39]     Taking all these cases into account, I consider the prolonged and serious nature of the attack, the number of impact injuries, including to vulnerable areas of the body, and the callousness you displayed towards Troy, engages s 104(1)(e) of the Sentencing Act.

[40]     The second aggravating feature is Troy’s vulnerability.

[41]    Troy’s mental health condition meant he could not live in the community unsupported.   He was easily influenced and others would take advantage of him. You knew about his mental health condition.  This placed him in a vulnerable position.   Compounding that vulnerability is the fact that when you arrived at his home it was in the early hours of the morning. In all likelihood Troy was asleep. I have  no  doubt  that  Troy  was  vulnerable,  but  whether  he  was  “particularly” vulnerable within the meaning of s 104(1)(g) is more difficult to assess.   As the Crown does not rely on this subsection I do not need to finally determine that point.

[42]     The third aggravating feature is the fact that the attack took place in Troy’s home, and in his bedroom.  This is a place where he should have felt safe and secure particularly from you, his so called friend.  Because there is no suggestion that you were at his home unlawfully, this aggravating feature does not engage s 104.

[43]     I now turn to the mitigating features of your offending.  Your counsel relies on  your  attempts  to  put  Troy  into  the  recovery  position,  and  the  calling  for assistance.  I do not consider either feature mitigates your offending to any great degree, and it certainly does not mitigate the brutality involved in the attack so as to take it outside s 104(1)(e).

[44]     I therefore consider that s 104 is engaged in your case and I am obliged to impose a minimum period of 17 years’ imprisonment unless it would be manifestly unjust to do so.

Uplift?

[45]     The next step in sentencing requires me to determine if a minimum period of greater than 17 years is required. The other aggravating features I have identified are

already reflected in the 17 year minimum period which is reserved for the most serious of murders. Although you have prior convictions, none of them resulted in a sentence of imprisonment.

[46]     The Crown does not seek an uplift and I do not consider an uplift is otherwise warranted in your case.

Personal Mitigating Features

[47]     I now turn to consider mitigating features. Your counsel has raised two such features: your mental health and your remorse.

[48]     I take your mental health first.

[49]    The Court of Appeal has held that a mental disorder may be capable of mitigating a sentence.  That is because it may moderate culpability; or it may make a sentence of imprisonment less appropriate.5    Mental illness may also affect the risk of repeated offending which is relevant to issues of deterrence and public protection.

[50]     In this case, the Crown accepts that your mental illness is a mitigating feature and would give rise to a discount of 20 per cent. Your counsel suggests a discount of

30 per cent.

[51]     The Court of Appeal has surveyed the relevant cases relating to mental health discounts and observed that they ranged between 12 per cent and 30 per cent.6

[52]     Whether you were suffering from a mental illness at the time of the murder was a feature of the trial.  The expert evidence differed on that question, but they agreed you were suffering from a mental illness after the event.

[53]    I consider your mental health probably was a contributing factor to your offending, although it was not a substantial or predominant cause.   You were presenting with mental health issues prior to the murder, and you had previously

been prescribed antipsychotic drugs.   There is no dispute that you were suffering from a mental illness in the period after the murder.  Your mental health condition meant  that  you  were  more  predisposed  to  anger,  aggression  and  poor  impulse control. Those were all evident to some degree in the brutality of the attack.

[54]     Your mental health condition is likely to make prison more difficult for you. The psychiatrist’s report prepared for this sentencing confirms your diagnosis and your ongoing treatment needs which are currently being managed within the prison, but they are dependent on you taking your medication and otherwise complying with treatment expectations which can be more difficult in prison.  I also accept that your mental illness leaves you with a diminished capacity to deal with the stresses of life, and prison may be more punitive in that regard.

[55]     I do take into account the fact that increased levels of aggression and violence as a result of your mental health condition poses a risk to public safety.  That can moderate any discount which might otherwise be available.   Nevertheless, the psychiatrist’s report notes that you are currently being managed adequately and that medication can treat your symptoms.  That neutralises the heightened risk posed to the public in my view.

[56]    In terms of discount, I do not consider your mental health to feature as prominently in your offending, as it did in R v Tu.7    A 30 per cent discount is not justified in your case.  I consider the 20 per cent adopted in R v Gottermeyer and put forward by the Crown is appropriate, but it is the maximum which should be allowed.8

[57]     Your counsel seeks a further modest discount of five per cent for remorse. As I have already noted I consider your actions after the murder were primarily concerned with saving your own skin.   Nevertheless, I accept that you told police that you were the one who had punched Troy, and that you did not mean to harm him.  That demonstrates a small degree of responsibility and accountability. The psychiatrist’s report also notes your remorse and regret for the offending.  A very

small discount of no more than six months (less than the five per cent sought) would be appropriate in the circumstances.

[58]   Taking all these factors into account, I consider a minimum period of imprisonment of around 13 years to be justified.

Manifestly Unjust

[59]     As the minimum term of imprisonment I consider appropriate is less than

17 years, I must now decide whether imposition of 17 years is manifestly unjust.

[60]     In making that determination, I must consider whether, as a matter of overall impression, your case falls outside the legislative policy that certain murders are sufficiently serious to warrant that minimum period.  Powerful mitigating factors are needed to displace the 17 year presumption.9

[61]     The Crown accepts, and I agree, that your mental health condition is a factor which would make the imposition of a 17 year minimum period of imprisonment manifestly  unjust.     That  is  because  your  mental  health  both  mitigates  your culpability, and would make prison harder for you.

[62]     Having regard to the principles of accountability, denouncement, deterrence, and protection of the community, I consider an appropriate minimum period of imprisonment to be 13 years.

[63]     I stress that this is not your sentence.  Your sentence is life imprisonment, but you will not be eligible for parole until you have served the minimum period of

13 years in prison. Whether you are then released is a matter for the Parole Board.

Conclusion

[64]     Mr Tione, please stand.

9      Malik v R [2015] NZCA 597 at [32].

[65]     I sentence you to life imprisonment for the murder of Troy Wright.    The minimum period you must serve in prison is 13 years.

[66]     Please stand down.

Edwards J