R v Tulisi
[2013] NZHC 3342
•12 December 2013
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 hand on the head, face and body. This was followed by a repetition of the on all fours incident but on this occasion you whipped Mr Wilson in the bottom area several times using a belt.
[9] Counts 8 and 9 related to an incident in the back yard at Station Road where you first threw pieces of four by two wood at the deceased’s head a number of which struck him and at least one striking him on the back of the head. After throwing the wood you then advanced on the deceased and began striking him with your clenched fists around the head and face, kicking his legs and stamping on his feet.
[10] Count 10 was the representative charge of common assault in relation to which there was evidence from three witnesses of repetitive assaults by you on the deceased.
[11] In a number of these incidents the evidence was that the deceased cried and asked for help. The jury were plainly moved by the evidence relating to a number of these incidents.
[12] Finally there was the incident which resulted in the death of Mr Wilson. While there were no witnesses to the actual assault, the pathologist, Dr Morrow, gave
lengthy evidence about the injuries which Mr Wilson suffered in the 24 hour period leading up to his death. The primary cause of death identified was bilateral pneumothorax resulting in a form of internal asphyxia. Your explanation for Mr Wilson’s state was that he had left the house and received the fatal injuries in Otahuhu before returning home at approximately 2 am, beaten and battered, but unwilling to go to hospital. You claim that you offered to take him to hospital on a number of occasions and you checked his condition. By its verdict the jury rejected that explanation finding instead that you inflicted the fatal injuries yourself.
Sentencing Act 2002
[13] In determining the sentence to be imposed on you Mr Tulisi it is necessary to have regard to the purposes and principles of sentencing in the Sentencing Act 2002 to which both Mr Edgar and Ms Mills have referred.
[14] Given that you continue to deny the offending despite the jury’s verdicts, the Crown submits, and I agree, that the purposes of holding you accountable and promoting a sense of responsibility for and acknowledgement of the harm caused are particularly relevant in the sentencing exercise. Mr Edgar, your defence counsel, has very responsibly acknowledged that those factors are relevant to offending where serious violence is an issue.
[15] Denouncing the conduct, deterring the offender and others and protecting the community from you must also be relevant for the purposes of sentencing. In terms of the relevant principles of sentencing I have regard to the gravity of the offending, the need for consistency in sentencing levels, the need to impose the least restrictive sentence and relevant factors personal to you. The defence, through Mr Edgar, has acknowledged that the frequency, seriousness, date and relevance of the further offending against Mr Wilson should warrant an uplift in the initial identified sentence.
Approach to sentencing
[16] The orthodox approach to sentencing was established by the Court of Appeal in R v Taueki.1 This approach envisages a starting point being set having regard to the aggravating and mitigating features of the offending with an end sentence being reached by adjusting that starting point on account of the aggravating and mitigating features personal to you.
[17] There is no dispute that the offence of manslaughter should be treated as the lead offence. Furthermore given that the other offences were part of a continuing course of conduct by you against Mr Wilson ultimately culminating in his death, I agree with the Crown’s submission that the earlier violence offences are sufficiently similar in circumstance that in accordance with s 84(2) concurrent sentences should be imposed. However the effect of the 10 other violence counts will be to justify an uplift in the starting point imposed for the lead charge of manslaughter.
Aggravating and mitigating features of the offending
[18] As you have heard Ms Mills refer to, s 9 of the Sentencing Act lists various aggravating and mitigating features which the Court must take into account to the extent they are applicable to the particular case. I consider the following factors are relevant to the lead offence of manslaughter.
[19] First it is apparent from the injuries suffered by Mr Wilson and from the medical evidence that the offence involved a considerable degree of violence. What are described as the “fresh” injuries, being those suffered sometime in the 24 hours prior to Mr Wilson’s death, included fresh bruising, abrasions and a fractured rib which pierced his lung leading to the bilateral pneumothorax.
[20] Having regard among other things to the evidence of Dr Morrow, an instrument was used to create the very fresh “L” shaped wound on the top of Mr Wilson’s head, the Crown submits (on the basis of that) that a weapon was used in
the attack on Mr Wilson. However the Crown fairly acknowledges that one cannot
1 R v Taueki [2012] NZCA 428
be sure that a weapon was used to inflict the specific injury that led to Mr Wilson’s death, that is it cannot be excluded beyond a reasonable doubt that the fractured rib was caused simply by punches and/or kicks. Accordingly the Crown submits, and I agree, that you should be sentenced on the basis that a weapon was used in the course of the far more prolonged assault on Mr Wilson (particularly that which caused the injury to his head to which I have referred) but that it cannot be proved that a weapon was used to inflict the final injury. Certainly however it is clear that the manslaughter occurred in the context of a very significant assault.
[21] Furthermore it is apparent from the evidence of Dr Morrow that a not insignificant degree of the violence was directed at the deceased’s head. Such injuries included the black eye to the left eye (which Dr Morrow described as the “largest injury to the face area”), the two lacerations to the skin surface on the top of the head, the “markedly” swollen “right ear” (which Dr Morrow stated was caused by an injury rather than an internal condition) and various abrasions and lacerations to Mr Wilson’s facial area.
[22] Section 9(1)(d) refers to the extent of any loss, damage or harm resulting from the offence. In that regard we have heard this morning from five members of Mr Wilson’s family who have provided victim impact statements as to the sense of loss suffered by the family and I acknowledge their presence and the statements that they have made.
[23] Section 9(1)(f) and (g) refer respectively to the situation where an offender abuses a position of trust or authority in relation to a victim and where a victim is particularly vulnerable because of health or other factors known to the offender. These factors are relevant in this case although the Crown again fairly acknowledges that there is some overlap. Mr Wilson was your cousin and the wider family assumed, wrongly as it turned out, that he would be safe and cared for at your home. Mr Wilson was treated in a most subservient manner, his life being governed by lists of rules, contraventions of which would result in serious physical consequences. By the time of his death it appears that you exercised complete control over his finances requiring him to withdraw funds and hence controlling his access to food. Numerous witnesses described his looking increasingly thin and unhealthy the
longer he lived at Station Road and there was specific evidence as to his weight loss in the period of the one year prior to his death.
[24] Mr Wilson had a club foot. He was relatively short and small in stature. He was no physical match for you to whom he was particularly vulnerable to abuse.
[25] The final factor in terms of aggravation and mitigation which I note in s 9(j) are the number, seriousness, date, relevance, and nature of any convictions for which you are being sentenced at the same time. Consequently the other 10 offences for which you appear for sentence are relevant. In terms of seriousness they range from the low level common assaults to serious assaults with weapons including the baseball bat and the belt. They were carried out over approximately a one and a half year period prior to Mr Wilson’s death. I agree with the Crown that the offending can fairly be described as prolonged and persistent.
[26] Furthermore these other offences are highly relevant because, particularly with hindsight, they represent an on-going and escalating campaign of violence by you against Mr Wilson that served to subjugate him to your control by means of humiliation and fear.
[27] Defence counsel have suggested that there may be a mitigating feature in the offending in that you had informed the writer of the pre-sentence report that you had previously been under some mental health care but counsel acknowledges that the writer of the report has not been able to verify that information and I do not find that there are any mitigating features in your offending.
Starting point
[28] Counsel are agreed that there is no tariff case for manslaughter. The circumstances in which this offence can be committed and the culpability of those who commit it vary widely as do sentencing levels. In seeking a starting point it is necessary to have regard to similar cases.
[29] Counsel for the Crown have drawn attention to three cases which it submitted assist in arriving at the starting point namely R v Filimoehela,2 R v Proude & Teinakiri3 and R v Hokai.4 These decisions involved vulnerable persons sustaining prolonged physical and mental abuse or significant violence and suffering extensive injuries prior to their death. Counsel for the defence, Mr Edgar, has submitted that the cases show a higher level of violence than in the present case and he suggests
that all of the victims in those cases were totally reliant on their respective caregivers
in contrast to the picture which he paints of Mr Wilson’s position relative to you.
[30] There are points of similarity and difference in all three cases. In Hokai, for example, the failure to get medical treatment lasted for three days and that was aggravating but on the other hand the episode of violence was a one-off incident and not the culmination of a long period of violence as in the present case. The Crown argues for a higher starting point than the nine years six months imprisonment which was the starting point in Hokai.
[31] Filimoehela was, as Mr Edgar points out, described by the sentencing Judge as ranking amongst the worst possible cases of manslaughter in this country and where the whole family had violently abused the victim. The Crown submits that there are significant similarities with the present case in that, although the abuse in Filimoehela appears to be more frequent and the physical condition of the victim was arguably worse at the time of death, balanced against that the violent offending in the present case was more calculated in that it was carried out in an environment and as part of a course of conduct calculated to secure a situation of control over the deceased and over the deceased’s finances. While it is not entirely clear whether in that case the starting point was 13 years or higher the Crown submits that a similar but somewhat lower starting point is appropriate in the present case.
[32] In Proude the starting point adopted was 11 years imprisonment on the lead charge of manslaughter by an unlawful act but in arriving at that starting point the Judge identified that the Crown had been unable to prove which of the two accused
was the principal offender and both were required to be sentenced on the basis that
2 R v Filimoehela CA367/99, 8 December 1999.
3 R v Proude &Teinakiri HC Auckland CRI-2008-092-001926, 25 May 2010.
4 R v Hokai HC Auckland S4/03, 2 May 2003.
point is available for the manslaughter in the present case, namely 11 years imprisonment. The Crown then proposes an uplift of one year for the additional offending resulting in an end starting point for the totality of the offending in the vicinity of 12 years imprisonment.
[33] Mr Edgar has submitted that taking into account the totality of the offending the appropriate starting point should be in the range of seven to eight years imprisonment. In my view, having regard to the aggravating factors to which I have referred, a sentence of that duration would be inadequate. While recognising the points of difference between the present case and the three cases to which I have referred I consider that taking into account the totality of the offending and incorporating an uplift of one year for the 10 other counts on which you have been found guilty that 12 years imprisonment is the appropriate starting point.
Aggravating and mitigating factors personal to Mr Tulisi
[34] I have read the pre-sentence report. You are a 37 year old born in New Zealand. Your co-offender, Ms Pou Ferguson was your partner. You do not believe you are a violent person but you have admitted to having anger issues. You informed the report writer that you usually give people chances but if they do not listen to you, you get angry but you claim that you do not usually use violence. Throughout the interview you have maintained your innocence regarding the charges of assault and manslaughter. Hence you have not shown any remorse for your actions or taken any responsibility for your offending. Consequently I have identified no mitigating factors.
[35] You have previous convictions for violence, for possessing an offensive weapon and for speaking threateningly, most recently in 2010. However the Crown does not press for an uplift in sentence on the basis of those convictions. I do not find that there are any aggravating factors personal to you.
[36] There being no aggravating or mitigating circumstances personal to you the end sentence will be 12 years imprisonment.
[37] Section 86 of the Sentencing Act provides that the Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 (namely one-third) if it is satisfied that that period is insufficient for the purposes stated in s 86.
[38] It is the Crown’s submission that a minimum period of imprisonment of one- third would be insufficient to hold you accountable, denounce your conduct and deter others from similar offending. The Crown submits that a minimum period of at least 50 per cent is appropriate. Your counsel submits that if a minimum period is to be imposed it should be no more than 50 per cent.
[39] I am satisfied that a period of four years would be insufficient for the purposes specified in s 86(2) but in view of the submissions of Mr Edgar I order that you are to serve a minimum period of six years imprisonment.
Conclusion
Please stand
[40] So Mr Tulisi on the count of manslaughter you are sentenced to 12 years imprisonment. I direct you are to serve a minimum period of six years in prison.
[41] On the other offences I impose the following concurrent sentences, that is sentences to be served at the same time as the manslaughter sentence:
(a) On the six charges of common assault you are imprisoned for six months on each charge.
(b)On the three charges of assault with a weapon you are imprisoned for one year on each charge.
(c) On the charge of assault with intent to injure you are imprisoned for two years all to be served concurrently.
Brown J
3