R v Tu

[2016] NZHC 1780

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. But you are unwell. You have been diagnosed with serious mental health disorders, including schizo-affective disorder and Autism Spectrum Disorder (ASD). Over a decade or so the symptoms of your mental health disorders have displayed themselves through highly abnormal behaviour, self delusion/ideation (including perceiving yourself as God), grandiose and entitled attitudes, anxiety, hallucinations, lack of empathy and obsessions with young pretty women, including most significantly (and tragically), Crystal.

[8]      You have been receiving treatment for your mental health disorders for some time, involving, among other things, periods of hospitalisation, ongoing medication and counselling.  In the period leading up to Shane’s murder, the notes of your treatment indicate an escalation in erratic and entitled behaviour, coinciding with a number of destabilising factors, including the breakdown in your relationship with your parents, your removal from the family home and substance abuse. It appears the full cause of this behaviour was not diagnosed, there being no recognition at the time of your ASD-like symptoms.

[9]      There is expert dispute as to the extent of the effect of your mental health disorders on your actions at the time you struck Shane. But the clinical consensus is

that you were affected by them.1  In short, your ability to act with any form of

1      Report of Dr Nina Joseph, dated 14 July 2015; Report of Dr Nina Joseph dated 4 November

genuine empathy was significantly affected by your distorted perception of Shane’s behaviour, self delusion, lack of insight, your obsession with Crystal and inflexible or concrete thinking about the relative reasonableness of the options available to you (for example, running away vs. killing Shane). While you knew what you were doing was wrong, these mental health factors plainly contributed to your fatal and subsequent actions, including, perversely, joining Shane and Crystal in bed following the murder and a lack of insight into the gravity of your actions.

Risk

[10]     I now examine the ongoing risk presented by you. Your most recent mental health assessment provides an unclear picture.2 Since the offending, and following a sustained period of relative stability while institutionalised, your mental health condition has improved considerably. You are reported to have responded quite well to the externally structured and predictable environments of both the hospital and prison. It is also said that you do not display typical aggravating factors such as a

history of conduct disorder, rule breaking, anti-authoritarian attitudes or a significant forensic history in association with your autism and mental health disorders. But the assessor expresses concerns that all of this will mean that you will likely remain within the prison environment, rather than receive much needed treatment and that you will not otherwise benefit from standard rehabilitation or other services for intellectual disability (i.e. because you do not have cognitive deficit).

[11]     The assessor recommends a short finite sentence as this would likely enable early  intervention  by  forensic  mental  health  services.  She  does  not  support  a “hybrid” sentence combining a compulsory order with a long-term finite sentence. She says that these types of sentences are suitable for persons with acute mental illness and, in your case, the treatment of the acute conditions has already been

achieved.

2015; Report of Dr Ian Goodwin dated 16 November 2016; Report of Dr Russell Wyness dated 2

May 2016; Report of Dr Peter Dean dated 24 May 2016. See also R v Tu [2016] NZHC 1334,

2      Report of Dr Mhari Duff dated 2 August 2016.

Victim impact

[12]     Mr Tu, it is now appropriate that I talk about the victims of your actions. Shane was a much loved son, brother, moko, nephew and friend. We have heard today the victim impact statement of Shane’s mother. She is naturally devastated by the murder of her son. The emotional impact is ongoing – she is highly anxious and fearful and worries about her other children given the terrifying way that Shane was killed. She also speaks of her unbearable loss.

Framework for sentencing

[13]     Turning then to the framework for sentencing that I must follow.

[14]     First,  I must  impose a  life sentence with  a 10  year minimum  period  of imprisonment unless it would be manifestly unjust to do so.3

[15]     Second, if I impose a life sentence and I find one or more of the aggravating factors  specified  at  s  104  of  the  Sentencing Act  are  present,  I  must  impose  a minimum  period  of imprisonment  of 17  years,  unless  that  would  be manifestly unjust.4

[16]     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:5

(a)       Holding you accountable for the harm that you have done to Shane and to the community;

(b)      Denouncing your conduct;

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

3      Sentencing Act 2002, s 102(1).

4      Section 104(1).

5      Sections 7, 8 and 103.

(d)      Protecting the community.

Life imprisonment, but not a 17 year minimum non-parole period

[17]     I  have  come  to  the  view  that  a  sentence  of  life  imprisonment  must  be imposed, but a minimum sentence of 17 years would be manifestly unjust in your case, Mr Tu, for the following reasons.

[18]     Your offending includes several aggravating features which compel a life sentence, including:

(a)      The  killing  was  premeditated  –  the  evidence  shows  that  you considered when and how you should murder Shane (though, as I will explain, the full significance of this must be coloured by your mental health disorders);

(b)      You struck Shane while he was asleep and defenceless;

(c)      You struck Shane to the head knowing you would cause his death and with the clear intention of killing him;

(d)The harm done is significant – while all murders cause great harm, the circumstances of this murder were chilling, and continue to terrify members of Shane’s whanau.

[19]     I accept that your mental health disorders are significant mitigating factors in terms of the offending, as I will explain shortly when dealing with s 104 and the minimum period of sentence. This is a complex case where the bright line drawn in the legislation between sanity and insanity for the purposes of culpability and sentencing is both antiquated and inapposite. As your Counsel submits, it may be that your mental health disorders and associated risk factors will not be properly addressed while in prison with the consequence that you may be incarcerated for an inordinate period or, alternatively, released to the public still very unwell.  But I must balance these factors and risks against the clear policy of the Sentencing Act that life imprisonment must be imposed unless manifestly unjust to do so. This reflects a

strong legislative direction to among other things denounce and deter acts of murder. Now, I should be clear about this; your mental health disorders do not absolve you of culpability under our law. The evidence is tolerably clear that you were aware that killing was wrong, but that you had wrongly reasoned that you were justified in your actions. In short, while your ability to make decisions was plainly affected by your condition,  you  chose  to  kill  Shane. A very  clear  message  of  denunciation  and

deterrence is therefore still warranted, as it was in a number of similar cases.6

[20]     I am also not persuaded that the complexities of your mental health will not be taken into account by those responsible for your care in prison or when you come up for parole. Notably, your mental health has improved considerably in a stable prison environment and this suggests to me that some care has been taken to accommodate your special needs. While the latest assessor expresses concern about how your treatment might unfold in prison, there is an element of speculation about all of this. Recent publicity about a proposed mental health package for offending is also a reason for hope.

[21]     For completeness, I record that Mr Tomlinson relies on the approach taken by Brewer J in R v Reid7  where a sentence for life imprisonment was not imposed for the murder of an elderly woman.  But I am unable to adopt Brewer J’s approach in that case, in the present case. I see that there are some similarities with your offending. Mr Reid suffered from major psychiatric illness. At trial, the jury rejected his insanity defence and found him guilty of murder. But there are also significant differences between your culpability and Mr Reid’s culpability. Brewer J found that Mr Reid did not visit the victim with the intention to kill her. It was the victim’s

denials of his delusions that triggered the murderous act. By contrast, your actions were, in fact, the opposite. You returned to the flat intending to kill Mr Hawe- Wilson.

[22]     Accordingly, while there remains a legitimate concern that your mental health disorders may not receive the treatment you need while in prison with potentially

6      R v O’Brien (2003) 20 CRNZ 572 (CA) R v Mayes (2003) 20 CRNZ 690 (CA); R v Gottemeyer

[2014] NZCA 205..

7      R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.

disproportionate consequences for you, I am not satisfied that this risk is such that it would be manifestly unjust to sentence you to life imprisonment.

Aggravating factors – s104

[23]     In terms of s 104(g), a particularly vulnerable victim is an aggravating factor for the purposes of sentencing. As I have said, Shane was sleeping at the time of the murder and defenceless. Vulnerability is literally about susceptibility to attack8 and a sleeping  person  in  their  home  (whatever  their  age  or  health)  is  particularly susceptible to attack from a flatmate. The cases cited by Mr Tomlinson said to favour a more restrictive meaning of “vulnerable”, for the most part, involved a conscious victim.9  The Court of Appeal also observed in a footnote (without having heard argument, it appears) in Hamidzadeh v R that attacking a person while sleeping would qualify as a s 104 aggravating factor.10  While the Crown submits that it is more likely that s 104 is not engaged in this case, given a general reluctance in the authorities to rely on vulnerability,11 the vulnerability factor is, in my view, triggered by the circumstances of your offending.

Mitigating factors

[24]     However, Mr Tu, your mental health disorders are a decisive factor militating against the full application of s 104 to you. Your actions were not the product of callous design or disregard. You were not acting with the usual even-handed understanding and foresight of a mentally well person. You were disproportionately anxious about Shane’s threat to you and simply did not empathise with your victim because of your mental illness, particularly your ASD. Against this background, it

would be wrong to describe your actions as a cold and calculated murder of a

8      Vulnerable  is  defined  as:  “Able  to  be  wounded;  (of  a  person)  able  to  be  physically  or emotionally hurt; liable to damage or harm, esp. from aggression or attack, assailable.”   See Lesley Brown (ed) The Shorter Oxford Dictionary (4th ed, Clarendon Press, Oxford, 1993) at

3605.

9      R v Nelson [2012] NZHC 3570; R v Meads HC Hamilton CRI-2009-019-8828, 31 March 2011.

By contrast, in R v McIsaac [2016] NZHC 1544 the victim was asleep, but the focus of the

vulnerability analysis was on the victim’s young age.

10     Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [82] fn 46. See also Skilling v R

[2011] NZCA 462 at [5].

11     R v Nelson, above n 9, at [28]; R v Tait HC Tauranga CRI-2010-070-5571, 16 September 2011 at

[30].

vulnerable victim. Subjectively assessed, therefore, your culpability is at the lower end of the spectrum. In those circumstances, I consider that it would be manifestly unjust to impose a 17 year minimum non-parole period.

Minimum sentence

[25]   The residual issue is now what should be the minimum sentence of imprisonment?

[26]     The Crown contends that a minimum period of 14 years should be imposed if s 104 is engaged, applying a discount for mental health issues against a start point of

17 years.  This discount broadly accords with  authority, including R v Gottermeyer12

– where a 20% discount for mental health was adopted – and an end minimum non- parole period of 12 years was imposed (with discounts also for guilty plea and remorse).

[27]     Your counsel submits that if s 104 is engaged, an end sentence of 12 years or less is available referring to two sentences handed down by Brewer J.  For present purposes, I wish to refer to R v Waititi.13  In that case Brewer J allowed a 30% discount due to the defendant’s Asperger’s syndrome and provocation (in the context of an assault).

[28]     For my part, the evaluation must be fact-specific in the light of the four purposes specified at s 103, namely: accountability, denunciation, deterrence and protecting the community. Your mental illness bears on each of these factors. In short, while you do not meet the threshold for insanity, the cause of your offending is closely linked to your mental illness, your ASD and your inability at the time to properly weigh the risks to you, evaluate your options and empathise with your victim.

[29]     It is also relevant that your actions occurred at a time where you were cut adrift  from  your  normal  support  structures  and  particularly  susceptible  to  your

underlying  mental  frailties.  Significantly,  all  of  the  mental  health  assessments

12     R v Gottermeyer [2014] NZCA 205.

consider that you should be subject to ongoing medical treatment (though, as I have said, treatment of your most acute conditions appears to have been achieved). They also say that, with the right support structures, the risks you present to society should be able to be managed. Conversely, the risk factors associated with long-term imprisonment that I have already mentioned, must be taken into account. All of this supports a shorter minimum period of imprisonment.

[30]     There is one further factor that I am bound to consider. The Court of Appeal in E(CA689/10) v R14 observed that discounts for mental health between 12 per cent and 30 per cent have been approved. While this is not a tariff, discounts exceeding

30 per cent for mental health issues alone would need to be exceptional.

[31]     Overall, when I take into account both the public interest (including the risks you present), the effects on the family, the facts of the offending and your personal circumstances (including the significant mental health disorders affecting your conduct and the potential for a disproportionate effect on you), I consider that a 30 per cent discount is warranted. This results in an end sentence of life imprisonment with a minimum non-parole period of 12 years. For completeness, I have considered a  number  of  sentences  where  a  lesser  minimum  sentence  has  been  imposed  in

arguably similar  circumstances.15   But  those  cases  invariably involved  additional

discounts for guilty pleas and expressions of remorse.

[32]     On this last aspect you have been assessed as lacking insight still into your actions.  I accept that this is another manifestation of your illness.  But, nevertheless, the absence of remorse means that it cannot be taken into account as an additional mitigating factor.

Sentence

[33]     Mr Tu, please stand.  For the murder of Mr Shane Hawe-Wilson, I sentence you to life imprisonment with a minimum non-parole period of 12 years.

14     E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [71].

First strike warning

[34]     Mr Tu, I am now also required to give you a first strike warning.  A copy of what I am about to say will be made available to you later.  Your conviction today constitutes a Stage 1 Offence for the purposes of s 86B of the Sentencing Act 2002. From this point if you commit another serious violence offence except murder, you will receive a final warning.  Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole.  If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless that would be manifestly unjust.  If serving that sentence would be manifestly unjust, the Judge must specify what minimum period of imprisonment you would serve.  I reiterate that this warning will be provided to you later in writing.  If you have any questions, you should approach your counsel. Mr Tu, please stand down.