R v Tulisi - [2013] NZHC 3342

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-013960 [2013] NZHC 3342

THE QUEEN

v

PEAU TULISI

Hearing: 7 October - 1 November 2013

Appearances: W Cathcart and K Mills for the Crown
M Edgar for prisoner Tulisi

Sentencing: 12 December 2013

SENTENCING NOTES OF BROWN J

Solicitors: Crown Solicitors, Auckland
Counsel: M Edgar, Auckland

R v TULISI [2013] NZHC 3342 [12 December 2013]

[1] Mr Tulisi you appear for sentence following a jury trial which commenced on

7 October 2013.

[2] On 1 November a jury found you guilty of 11 charges:

One of manslaughter for which the maximum penalty is life

imprisonment;

Three charges of assault with a weapon for which the maximum penalty

is five years imprisonment;

One charge of assault with intent to injure for which the maximum

penalty is three years imprisonment; and

Six charges of common assault, including one representative charge for

which the maximum penalty is one year’s imprisonment.

Background facts

[3] Numerous witnesses have described the deceased as a gentle, passive and submissive man who never stood up for himself and who never fought back. However over a period of between 18 months and two years you subjected the deceased to a series of assaults of apparent increasing severity. Slaps, kicks and punches escalated into prolonged assaults including the use of weapons. That pattern of maltreatment provided an environment for your gaining and exercising increasing control over the deceased, his wellbeing and his financial affairs. Indeed a number of witnesses have described the deceased as being like a slave to you and to Ms Pou Ferguson.

[4] I briefly review the details of the 11 counts on which the jury have found you guilty.

[5] Count 1 concerned the incident where, without apparent fault of Mr Wilson, an oxygen bottle fell over. Once that bottle was secured both you and Ms Pou Ferguson verbally abused Mr Wilson and then you hit Mr Wilson.

[6] Counts 2 and 3 related to events when Mr Wilson was working on tyres in the back yard at Station Road. You first slapped Mr Wilson on the side of the face but a short time later you picked up a metal baseball bat and hit him on the right hand side of the head.

[7] Counts 4 and 5 relate to the first of what is called the locked bedroom incidents, the bedroom which was able to be locked, where you slapped Mr Wilson a number of times prior to moving to the locked bedroom where you punched him, it appears at least six to eight times on his body and head. You then told him to get on the ground on all fours like a dog and you kicked him in the bottom area several times wearing what were described as white steel capped boots.

[8] Counts 6 and 7 relate to the second of the locked bedroom incidents. Again the initial assault involved your hitting Mr Wilson with both an open and a closed…

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 Tulisi

Details

AGLC: R v Tulisi [2013] NZHC 3342
Case: [2013] NZHC 3342
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Tulisi concerned sentencing for a series of violent offences against the deceased, culminating in his death. The defendant, Tulisi, was found guilty of manslaughter, three counts of assault with a weapon, one count of assault with intent to injure, and six counts of common assault. The court heard extensive evidence of a prolonged pattern of abuse, where the deceased, described as gentle and submissive, was subjected to escalating violence over a period of 18 months to two years. The jury was particularly affected by evidence of the deceased crying and asking for help during some of the assaults.

The court had to determine an appropriate sentence under the Sentencing Act 2002, taking into account the purposes of holding the offender accountable and promoting a sense of responsibility, as well as denouncing the conduct and protecting the community. The court considered the gravity of the offences, the need for consistency in sentencing, and the personal factors of the offender. The lead offence was identified as manslaughter, with concurrent sentences to be imposed on the other charges due to their similarity and connection to the lead offence.

The court found several aggravating factors relevant, including the considerable degree of violence, the use of a weapon, the targeting of the deceased's head, and the extent of loss and harm suffered by the deceased's family. The court also noted the abuse of a position of trust, the vulnerability of the victim due to his physical condition, and the prolonged and persistent nature of the offending. Defence counsel suggested some mitigating factors, but the court found none applicable.

The court determined a starting point for the sentence by comparing the case to similar cases involving vulnerable victims and prolonged abuse. After considering the submissions of both the Crown and defence counsel, the court set a starting point of 12 years imprisonment for the manslaughter charge, with an uplift for the other offences, resulting in a total starting point of around 12 years. Given the defendant's lack of remorse and previous convictions for violence, the court found no mitigating factors personal to the offender.

The court imposed a minimum period of six years imprisonment, acknowledging the need for accountability, denunciation, and deterrence. The court sentenced the defendant to 12 years imprisonment for manslaughter, with a minimum of six years to be served, and concurrent sentences for the other offences, including six months for each count of common assault, one year for each count of assault with a weapon, and two years for assault with intent to injure.

Orders