R v Tuia

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 312/02

THE QUEEN

LEWIS JACK TUIA

Hearing:	18 November 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	P M Hardie for Appellant F Guy for Respondent
Judgment:	27 November 2002

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

Mr Tuia appeals the sentence of five years imprisonment imposed in the High Court at Rotorua on 29 August 2002 on a count of aggravated robbery of a bank. He was convicted and discharged on two related counts of car conversion.
On 7 December 2001 just before 11 am he went into the National Bank at Tokoroa wearing a bulky jacket and wrap-around sunglasses. He went up to the teller and pulled out of his pocket what was described by witnesses as a kitchen knife about eight inches long like a bread and butter knife, and a plastic bag. There were present at least one other teller and also two members of the public. He passed the bag to the teller and demanded "Give me your money, fill it and give me hers too" referring to the cash drawer of a fellow teller. As he said that he thrust the knife to within six inches of the teller's chest. The teller was forced to empty both cash drawers but activated a bank alarm. The appellant ran from the bank with $4,280 of the bank's money. Later that day he stole a Mazda motorcar from a service station. It broke down and the appellant hid the jacket under the bonnet of the car. The appellant then broke into a house, stole the keys of a Nissan car parked in the driveway and drove to Taupo where he booked into a motorcamp. The camp owner was suspicious and telephoned the police. When they arrived the appellant had shaved his head in an attempt at disguise. The police recovered all except $895 of the money. When spoken to he admitted the foregoing facts but later withdrew his admission.
The grounds of appeal are that the sentencing Judge failed properly to apply R v Mako [2000] 2 NZLR 170 and so imposed a seven year starting point which was too high; and that insufficient weight was given to the appellant's circumstances, particularly his psychiatric illness of schizophrenia.
The Judge identified as aggravating features:
[a] The degree of preparation, little though it may have been;
[b] The use of the knife as a weapon;
[c]The fact this incident took place in a bank where there were other members of the public present; and
[d]What the Judge described as associated offending, namely the conversion of a motor car.
We reproduce the following passages from the sentencing remarks which bring out the Mako issue:
[3]     Now you have heard me discussing various matters with your counsel and counsel for the Crown and I want you to understand so far as I am concerned and indeed I expect all of the courts of this country are concerned, going into a bank, holding a knife at a bank teller in the way that you did, cannot be tolerated.
[4]     There has been some discussion as to the nature of the knife. It certainly was not of the dagger class but nevertheless it was a weapon and it was used towards the teller in an aggressive fashion. The victim impact report shows he has suffered a good deal of upset from the incident as one would properly expect.
…
[7]     Your counsel has suggested that the combination of the factors, particularly your psychiatric condition, the amateur nature of the offending and the fact that there was no true violence used, the fact you pleaded guilty and the low level of risk to employees are matters which I should take into account. He has also pointed out the previous convictions which you have had, but I am going to treat you for the purposes of the aggravated robbery as a first offender. It seems to me the earlier convictions really should not bear any great part in the sentence I pass today.
[8]     He has asked for a starting point of the sentence which I impose should be between three and four years and from that he has asked me to give you a reduction for the plea of guilty.
[9]     The Crown has suggested that a proper starting point is between four and six years although it also submits that a starting point of six years in view of the Mako decision would be too high for this type of offending.
[10]   Well Mr Tuia, paragraph [54] of the Mako decision, after a defended trial a starting point of six or perhaps more years should be the norm. Where there is a danger of harm to persons or if actual violence is used, the starting point would be a possible eight years. I repeat what I said at the beginning of these remarks. The holding up of banks, the use of a knife in the circumstances I have described cannot be tolerated.
In Mako it was stated:
[54]…The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of 6 or perhaps more years.
…
[45] Associated offending such as vehicle conversion… will add to the overall criminality.
(emphasis added)
In his thoughtful submissions Mr Hardie submitted that the Judge over‑emphasised both the fact that the offending was directed at a bank and the use of the knife. He argued that paragraph [31] of Mako signalled a shift away from narrow categorisation of target premises to a broader approach giving a proper assessment of all relevant factors. And he submitted that that, coupled with the evidence of use only of a domestic knife, which lacked the "even minor physical force" of paragraph [43] of Mako, and should have led the Judge to select a lower starting point than 7 years before mitigation.
We are however satisfied that the Judge's assessment of that starting point is within the Mako guidance. The elements mentioned by the Judge, coupled with the conversion of two getaway cars, warranted a starting point somewhat above the minimum 6 year sentence; the decision to use 7 years was within a proper range. In terms of Mako the point is not that a bank possesses particular status for sentencing purposes, but that the offending entailed conduct that required a sentence that in terms of s7(1)(d)(e) of the Sentencing Act 2002, which confirms existing principle, will sufficiently denounce and deter such conduct. And while the knife was a domestic one and did not in fact lacerate the teller, it had the potential for at least serious injury.
The more difficult aspect of this case is to determine how to approach the fact of the appellant's psychiatric condition. Dr David Chaplow's psychiatric report recorded that the appellant, now 31 years of age, sustained classical psycho-social deterioration from the age of 17 and since his early 20s has exhibited symptoms of mental illness subsequently diagnosed as schizophrenia. He has had two admissions to hospital in 1996 and 2002. The offending was committed at a time when he was not complying with his medication regime and was exhibiting symptoms of illness relapse and was functioning maladaptively. Schizophrenia is a serious mental illness associated with deterioration of personality and adaptive functioning and characterised by disordered mood, delusions, hallucinations and lack of insight as to one's behaviour.
Dr Chaplow considered that at the time of the robbery the appellant was mentally unwell, functioning without total insight into his behaviour and hallucinating. There was evidence that he heard a voice prompting him to rob the bank and that this was an hallucination. Other evidence suggested that he knew that taking money was wrong but at the time he was angry at his parents and his aunt and was desperate for money as he had been evicted from his aunt's home prior to pension day which was the motivation for the offending. Dr Chaplow concluded that his taking the money was not related to delusion but rather to his need for money. He sought corroboration of that opinion in his conduct of taking cars to get away and by counting the money 40 minutes after robbing the bank, neither of which he considered consistent with psychotic motivation.
The pre-sentence report assesses the risk of reoffending as high given the appellant's psychiatric disorder. It recounts that having been bailed to live with his parents in May 2002, he became mentally ill and was placed in the Tiaho Mai mental health unit for a month and then discharged to a sub-acute unit at Pathways for a fortnight. The probation officer confirms Dr Chaplow's description of the appellant as of good family. They have tried to support and put in place appropriate mental health services for him. The appellant's mother advised that he had periodically stopped taking his medication with the result of his "hearing voices and acting strangely". For a short period before the offending the appellant had not complied with his medication regime and disappeared from home, leaving his family to report his disappearance to the police. The probation officer recorded that the appellant is not prepared to address the factors identified as contributing to his offending and therefore he is assessed as having a low level of motivation to change. But since he ceased using marijuana six years ago, the only relevant "factor" appears to be the failure to take medication, which may be a consequence of his illness rather than conduct entailing moral fault.
The difficulty of fixing an appropriate sentence in terms of the purposes of sentencing recorded in s7 is that, viewed objectively, the psychiatric condition will put the community more at risk on the appellant's ultimate release than if he did not suffer from it and subclause (g) of subs (1) "to protect the community from the offender" could be said to point towards a longer term. But among the principles of sentencing expressed in s8 is that the Court:
(h)Must take into account in particular circumstances of the offender that mean that a sentence… that would otherwise be appropriate would, in the particular instance, be disproportionately severe;…

It would in our view be unprincipled to lengthen a sentence because of the appellant's mental condition; need for detention for such reasons is a matter for mental health legislation, not for criminal sentencing.

As recognised in R v Brown (CA 238/02, 25 September 2002) paragraph [36], among the factors underlying sentencing policy are:
The requirements of punishment, deterrence and denunciation.

albeit the first of the three does not receive explicit mention in the Sentencing Act. But the individual's position is always a factor requiring consideration; and in the case of one who is mentally ill most careful consideration.

In R v Wright [2001] 2 NZLR 22, a case of infanticide by a mother suffering from Munchausen's Syndrome by Proxy, this Court referred to the relevance of mental disorder in sentencing:
It is a factor which will inform a just sentence having regard to the character of the disorder and the weight it ought to carry when balancing sentencing objectives. Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty. It may suggest a more or a less risk of a repetition of offending, so as to direct particular attention to issues of personal deterrence or public protection. And these considerations must be synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.
The "lesser degree of moral culpability" follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. The less the moral capacity for constraint the lower the moral culpability in terms of the spectrum ending with the verdict of not guilty on the grounds of insanity.
Here Dr Chaplow does not in terms ascribe the offending to the appellant's mental illness. Because of its importance we reproduce the salient passage of his report: although the appellant had been hallucinating:
…his taking money was not related to a delusion but more to his need for money at the time. This is corroborated by [his] wanting to leave the town as quickly as possible in order to 'get away' and also by his counting the money forty minutes after robbing the bank. Neither of these motivations appears to be in keeping with psychotic motivation.
But while that evidence does not support a conclusion that his medical condition was the dominant cause of the offence, it is undeniable that the appellant was predisposed by his condition to commit the offence. The hallucinations are plain evidence of that; he was indeed "functioning without total insight into his behaviour". The appellant is not to be sentenced as a well man but as one whose offending has been contributed to by the medical condition for which he bears no responsibility.
While the position of the offender is an important factor so too is that of the community, including both the victim of the particular case and potential future victims. The victim impact report records the teller's experience of flashbacks about the incident resulting in disturbed sleep, constant shaking and loss of appetite with nausea over a period of nearly three months, and it seems a decision to move from his position.
As was observed by this Court in R v Batt (CA 309/86, 27 February 1987):
The sentencing of offenders with a mental disorder for serious crimes can be a difficult exercise. On the one side there is the public interest which calls for a sentence which reflects the community's abhorrence of crimes of that nature and acts as a deterrent to an extent which no other sentence can achieve. On the other side is the concern which would move any civilised society to ensure that mentally disordered persons are kept in a place where their disturbed psychiatric state can be treated in a humane way. In this exercise a Judge must keep the competing factors in their proper proportions. He must weigh the gravity of the offence against the need for treatment and see how each can best be achieved…
In that case it was held disproportionate for the sentencing Judge to have made an order under s118 Criminal Justice Act 1985 that the offender be detained as a committed patient rather than subjected to the six year term of imprisonment substituted by the Court of Appeal recognising the availability under ss 42 and 43 of the Mental Health Act 1969 of procedures for securing psychiatric treatment. On the other side is R v Elliott [1981] 1 NZLR 295 where this Court at 301 emphasised that:
The principle of proportionality must be given proper weight

and substituted an order for conviction and discharge of an appellant who had been ordered to be detained under the predecessor of s118 for conduct constituting relatively minor common assault.

In R v Nilsson (CA 552/99, 27 July 2000) paragraph [16] this Court, considering a sentencing for grievous bodily harm with intent to cause such harm by an appellant suffering from bi-polar affective disorder, held that it must strike a just balance among:
…several factors which are difficult to synthesise:-
·     Denunciation of violence.
·     Acknowledgement of the grievous effects on the victim...
·     Recognition of the reduced culpability of [the appellant].
·     The public interest, in terms of safety, of [the appellant's] being helped, by supervision and deterrence, to keep on his medication.
In this case while reducing the starting point by 2 years to acknowledge the plea of guilty the sentencing decision did not make allowance for the appellant's lack of total insight into his offending, save to the extent of declining to order a minimum non-parole period. We are of the view that the reduced culpability of the appellant is a factor that ought to receive specific acknowledgement; the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires to be recognised. We consider that a 12 month reduction of the sentence imposed is appropriate.
We accordingly allow the appeal and substitute a term of 4 years imprisonment.

Solicitors
Jones Howden, Matamata

Crown Law Office, Wellington

[2002] NZCA 404

27 November 2002