R v Tu

Case [2016] NZHC 1780 2 August 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-006670 [2016] NZHC 1780

THE QUEEN

v

JIAXIN TU

Hearing: 30-31 May, 1-3, 7-10 and 13-16 June 2016

Counsel:

K A Lummis and R Thompson for Crown
P H H Tomlinson and P Gruar for Defendant

Judgment:

2 August 2016

SENTENCING NOTES OF WHATA J

Solicitors: Meredith Connell, Auckland

R v TU [2016] NZHC 1780 [2 August 2016]

[1] Mr Tu, you have been found guilty of murder. I convict you of that crime and now sentence you.

[2] Before I go further, I wish to acknowledge the family and friends of Shane

Hawe-Wilson.

E te whānau e hui nei ki roto i tēnei kōti, tēnā koutou.

Ka nui te aroha ki a koutou katoa kua pāngia ki tēnei aituā kino. Nā reira, haere ngā mate.
Nau mai e te hunga ora.

To the family gathered in this court, greetings.

I have great aroha for all who have been touched by this terrible tragedy. And so farewell to the dead;
Welcome to the living.

The facts

[3] Mr Tu, on the evening of 30 June 2015, you were flatting with Shane, his girlfriend, Crystal, and their friend, C. During the course of that day, there were tensions between you and Shane and, at times, there were acts of aggression by him towards you. You say that he threatened to take your life, but this was not supported by either C or Crystal’s accounts of what occurred that day. I prefer their evidence on this but, for reasons that I will explain later, I am satisfied that you perceived Shane as a threat to you.

[4] Late in the evening, having shared a meal with the others and having had sexual intercourse with C, you left the address, seeking to talk to the police about your troubles with Shane. It transpired that you found two police officers nearby who were in the process of investigating a traffic incident. They advised you to raise your concerns about Shane at the police station in the morning. You then returned to the flat and found a hammer in a kitchen cupboard. You went into Shane and Crystal’s bedroom and observed them sleeping. You took this opportunity to strike Shane at least twice to the head and until, in your words, his skull felt soft.

[5] You returned the hammer to the kitchen and waited for a period in the lounge. You then went back into the bedroom in the morning and lay down between Shane and Crystal. You began touching her and tried to remove her pants. At this touching, Crystal woke and forced you from the bedroom. She noticed Shane was injured and the alarm was raised. Emergency services were called and you were arrested.

[6] In an interview shortly after your arrest, you admitted killing Shane, claiming that it was him or you.

Personal circumstances

[7] Mr Tu, you are a 36 year old male, well educated and from a stable family environment.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tu

Details

AGLC: R v Tu [2016] NZHC 1780
Case: [2016] NZHC 1780
Decision Date: 2 August 2016

CaseChat Overview and Summary

The case involved the defendant, Jiaxin Tu, who was convicted of the murder of Shane Hawe-Wilson. The defendant had a history of mental health disorders, including schizo-affective disorder and Autism Spectrum Disorder (ASD). On the night of the murder, the defendant had returned to the flat where he was staying with the victim and others, and had struck the victim in the head with a hammer while he was sleeping. The defendant then returned to the flat and lay down between the victim and another woman, Crystal, before being forced out by Crystal. The case raised issues concerning the defendant's mental health and its impact on his culpability and sentencing. The court was required to decide whether a life sentence with a minimum non-parole period of 17 years was appropriate, or whether a shorter sentence was warranted due to the defendant's mental health issues.

The court held that while the defendant's mental health disorders were significant mitigating factors, they did not absolve him of culpability for the murder. The court found that the defendant's actions were premeditated, and that the victim was particularly vulnerable due to being asleep and defenceless at the time of the attack. However, the court also found that the defendant's mental health disorders had significantly affected his ability to make decisions and empathise with his victim. As such, the court imposed a sentence of life imprisonment with a minimum non-parole period of 12 years, reflecting both the seriousness of the offence and the mitigating factors present in the case.

The court's reasoning was based on the principles and purposes of sentencing outlined in the Sentencing Act 2002, including holding the defendant accountable for his actions, denouncing the conduct, deterring the defendant and others from committing similar offences, and protecting the community. The court also considered the potential risks and benefits of a longer or shorter sentence for the defendant's mental health and rehabilitation needs. The court ultimately determined that a 30% discount for mental health issues was appropriate, resulting in a sentence of life imprisonment with a minimum non-parole period of 12 years.

In addition to the sentence, the court issued a first strike warning to the defendant, informing him that any future serious violence offences would result in a final warning and potential life imprisonment without parole. The court also acknowledged the impact of the murder on the victim's family and friends, expressing sympathy and condolences to them. The final orders of the court included the sentence of life imprisonment with a minimum non-parole period of 12 years, as well as the first strike warning to the defendant.

Orders