R v Wilson-Tipa

[2024] NZHC 626

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-043-1562

[2024] NZHC 626

THE KING

v

TAMATI TEARIKI MATENE WILSON-TIPA

Hearing:

20 March 2024

Appearances:

J M Woodcock for the Crown

P Keegan and P J Mooney for the Defendant

Date:

21 March 2024

SENTENCING OF COOKE J

[1]                 Mr Wilson-Tipa it is now my function to sentence you on the charge of murdering Mr Lionel Peat as a consequence of your guilty plea following an earlier sentencing indication that I provided. The guilty plea relates to murder,1 three representative charges of injuring with intent to injure,2 wounding with intent to cause grievous bodily harm,3 and assault with intent to injure.4 All those charges relate to Mr Peat apart from the charge of  assault  with  intent  to  injure  which  relates  to Ms Caroline Johnson.

[2]In explaining the sentence that I will impose upon you I will:

1      Crimes Act 1961, ss 160(2)(a), 167(1)(a)–(b) and 172; maximum penalty life imprisonment.

2      Crimes Act, s 189(2); maximum penalty five years’ imprisonment.

3      Crimes Act, s 188(1); maximum penalty 14 years’ imprisonment.

4      Crimes Act, s 193; maximum penalty three years’ imprisonment.

R v WILSON-TIPA [2024] NZHC 626 [21 March 2024]

(a)First outline the facts of the offending to which your guilty pleas relate;

(b)Then outline the general approach to sentencing for murder, including the presumption of life imprisonment that is involved and why it applies in your case;

(c)I will then address what is called the minimum period of imprisonment

— that is the period that you must serve in prison before being eligible to be considered for parole — and the requirements for that minimum that apply in your case;

(d)And then finally I will outline what the minimum period of imprisonment should be in light of the circumstances of this case, including your personal circumstances which have been described in reports to the Court.

The offending

[3]                 The offending is described in the agreed summary of facts to which your guilty pleas relate. Sentencing is a public process, and I must describe what happened in some detail. I acknowledge that some may well find this distressing.

[4]                 You and Mr Peat resided together for two years at Mr Peat’s address at Fairfield Road in Hawera. You met when you were struggling to find a place to live. Mr Peat invited you to live at his home.

[5]                 Mr Peat suffered from chronic mental health issues for which he was medicated, and he suffered physical ailments. Ms Johnson also had an intellectual disability. You met Ms Johnson through a dating website. You were friends after a short while dating.

[6]                 The three of you would regularly socialise together at  either Mr Peat’s  or  Ms Johnson’s home. You became controlling towards both of them over the course of your relationship. You would get them to run you errands, such as purchasing food

and alcohol. If they did not do what you wanted, you would become angry and violent towards them, particularly when you had been drinking.

[7]                 The first charge is assault with intent to injure relating to Ms Johnson. Between 1 May and 1 October 2021 Ms Johnson was visiting you, hanging out in your room. You became increasingly intoxicated, so Ms Johnson decided to leave. As she was leaving you accused her of wearing somebody else’s clothes, and told her to take them off. Ms Johnson refused. You then grabbed her, forced her onto the bed and started punching her. She tried to protect her face, and you punched her around her ribs approximately 10 times. She left the address shaking and crying, and struggling to breathe for the days following. She didn’t seek medical attention as she did not know how to explain the causes of her injuries.

[8]                 The other charges involve Mr Peat. Ms Johnson observed many instances of violence by you against Mr Peat at her address and Mr Peat’s  address.   Between     1 October 2021 and 2022, you and Mr Peat went to Ms Johnson’s house to socialise. The address is a small two-bedroom unit. On one occasion Ms Johnson went for a lie down, when she heard punching. She went to the kitchen area where she saw you punching Mr Peat on his face, rib area, and slapping his ears.  You  were accusing  Mr Peat of letting him down, and Mr Peat was repeatedly apologising. Ms Johnson asked you to stop, and Mr Peat unsuccessfully tried to push back. You then took a knife and held it to Mr Peat’s throat.

[9]                 This assault occurred over the course of an hour. When you eventually stopped, you walked away and continued drinking. You sent Ms Johnson to clean up Mr Peat. Mr Peat had been left on the floor in pain, and he crawled onto a chair shaking. He had blood on his face, chest and arms.

[10]              Between 1 June and 2 December 2022, you and Mr Peat, again went  to     Ms Johnson’s address. You were drinking, and got into an argument with Mr Peat. Ms Johnson was cooking tea, when she heard a punch and fighting. She went closer to the kitchen table and saw you striking Mr Peat causing him to fall on the floor.

[11]              While Mr Peat was on the floor, you punched him about the face, and kicked his ribs. You grabbed Mr Peat from his shirt, dragging him across the floor. Mr Peat told you he was sorry and attempted to get off the floor, however, you continued to push him back down. Mr Peat got up and you pushed him into a china cabinet, breaking the cabinet. You stopped for a time as he had some glass lodged in his back. You told Ms Johnson to clean him up. He was bleeding from his nose, and there was blood on the floor. After she cleaned him up, you began to manhandle Mr Peat around the room, causing him to again fall to the floor. She heard gurgling noises coming from Mr Peat, who crawled away and got on to a chair. Mr Peat later woke up after he had slept with bruising to his face and neck and he was very sore.

[12]              On one further occasion between 1 May 2021 and 2 December 2022, you became very agitated and annoyed with Mr Peat,  telling him to  go away.  When  Mr Peat stayed in the room, you punched and kicked him to the floor, and continued punching and kicking him around the rib cage. This assault lasted an hour, after which Mr Peat went to his room, and Ms Johnson left the address.

[13]              In October 2021, a new flatmate had moved in with you and Mr Peat. The new flatmate heard you yelling loudly at Mr Peat the morning after he moved in. The following morning, the flatmate heard you hitting Mr Peat. Mr Peat called, “stop hitting me”, and you replied: “you sound as if I’m killing you and all I have done is hit you”. You later told the flatmate that you hit Mr Peat because Mr Peat didn’t do what you wanted him to. During the three-month period in which the flatmate resided at the address, the flatmate says that not a day went by that you did not  yell or hit  Mr Peat. He observed you hitting Mr Peat on several occasions, by punches to the top half of Mr Peat’s body, and sometimes to his head. On these occasions Mr Peat would be cowering on the ground, scared.

[14]              On 20 July 2022, Mr Peat underwent an emergency surgery for a ruptured spleen. When recovering at home, for an unknown reason you became angry at him, and punched and kicked him in the area of his stitches. This caused bruising and blood to come out from the wound area.

[15]              The murder occurred on 2 December 2022. At 8.00 pm, you and Mr Peat went to Ms Johnson’s address. You were putting up Christmas decorations and drinking as you watched TV. For an unknown reason, you became angry and accused Mr Peat of certain things. You then attacked Mr Peat by punching him around the head, face, neck and chest. Mr Peat left the address and went for a walk, returning to the address at about 10.00 pm.

[16]              When he returned, you continued to accuse and attack him. You were angry that Mr Peat had left and stayed away so long. You continued to accuse him in the same manner you had previously. You then struck Mr Peat around the head, face, neck, and chest with your hands causing him to fall to the ground. You stood over  Mr Peat, and continued to kick and stomp him. On several occasions during the assault you picked him up, rag dolling him before knocking him back to the ground.

[17]              The attack was prolonged and occurred throughout the unit. Mr Peat was begging you to stop hitting him, and not to kill him. He had blood coming from his nose and mouth, and Ms Johnson heard cracking sounds.

[18]              At some point, Ms Johnson attempted to clean up blood throughout the scene, by wiping the walls down the hallway. But as the assault continued she went to her bedroom to escape the violence.

[19]              Mr Peat was rendered unconscious, and you then called out to Ms Johnson to help you as Mr Peat was not waking up. Ms Johnson too was unsuccessful in waking him up. You went to another room, and then returned to continue to punch and kick Mr Peat. Ms Johnson describes hearing a final loud cracking sound. Ms Johnson, overwhelmed, left the address to get away. You called her on her cell phone and asked her to come back. Ms Johnson returned to the address, and attempted to  wake up  Mr Peat, pouring water on him. Ms Johnson called 111 and received instructions on how to do CPR. You told her to get off the phone and to help you. Ms Johnson ignored you and continued with CPR.

[20]              At 2.33 am, the St Johns Ambulance was called to the scene, and they subsequently alerted the police.

[21]Mr Peat died of multiple blunt force injuries as a result of the offending.

[22]              Your offending not only had the effect of taking Mr Peat’s life, but has significant effects on Mr Peat’s family and others. I particularly want to acknowledge Mr Peat’s family, both those who are present and those who are viewing remotely. I acknowledge the statements made by Mr Robert Peat, and Ms Johnson. The harm created by offending of this kind is long lasting for those who have to deal with its aftermath. Those who have lost a family member, or a good friend have to deal with the trauma caused by your actions.

Approach to sentencing for murder

[23]              A person who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.5 It is not suggested that it would be manifestly unjust in this case, so you will be sentenced to life imprisonment.

[24]              If the sentence is life imprisonment, the offender must serve a minimum period of imprisonment or MPI — that is a period of imprisonment the defendant must serve before they can be considered for parole by the Parole Board. The purpose of a minimum period of imprisonment or MPI is to hold the offender accountable, to denounce their conduct, to deter others and to protect the community.6

[25]              With murder the Court must order the offender to serve a MPI of not less than ten years — there is no discretion to sentence below that figure.7 In certain cases, however, an MPI that is longer than ten years is necessary in order to satisfy all or any of the purposes of MPIs. Under s 104 of the Sentencing Act the Court must impose a MPI of at least 17 years in cases which involve one or more of the aggravating factors listed in s 104 unless it would be manifestly unjust to do so.

[26]              In terms of the mandatory 17 year MPI under s 104 both ss 104(1)(e) and (1)(g) apply in this case. When considering the application of s 104(1)(e) the focus is on the

5      Sentencing Act 2002, s 102(1).

6      Sentencing Act, s 103(1) and (2).

7      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

manner in which the murder was actually committed. The high thresholds of “depravity” and “callousness” might not be engaged here,8 but “brutality” and “cruelty” are. The Court of Appeal has held the brutality must be at a “high level” as many murders would involve elements of such.9

[27]              I consider that R v Oti where s 104 was held to apply is a comparable case.10 There are clear similarities between the nature of the offending in Oti and that here. In particular:

(a)First, the prolonged period of time over which the attack occurred. The initial beating occurred somewhere after 8.00 pm. After the initial beating, Mr Peat went for a walk, returning at about 10.00 pm. The attack resumed and escalated from there to his ultimate death.

(b)Second, the progressive and escalating nature of the attack. It occurred in roughly three phases. You first attacked Mr Peat with punches to the head, face, neck and chest. After Mr Peat was able to leave the address he then returned an hour later, you attacked him for a second time. You did so by striking him, again about the head, face and neck. Mr Peat fell to the ground. The violence escalated from there, with you stomping on him, kicking him, picking him up, rag dolling him, and knocking him to the ground. After Mr Peat had been rendered unconscious, you returned to a different room for a short while, only to return and continue the attack while Mr Peat was defenceless.

(c)Thirdly, the cruelty of the attack. Ms Johnson described Mr Peat begging you to stop, and not to kill him. The fact that after that you rendered him unconscious, instead of seeking help, you took a break and then returned to continue the attack, by kicking and punching him.

(d)Finally, the fact that you  repeatedly  targeted  vulnerable  areas  of  Mr Peat’s body –– his head and chest.

8      R v Gottermeyer [2014] NZCA 205 at [79(a)].

9      At [79(d)].

10     R v Oti [2021] NZHC 1800.

[28]              I am also satisfied that s 104(1)(g) applies. Mr Peat was particularly vulnerable because of his mental and physical health and other factors. The serial abuse and control which characterised your relationship with Mr Peat in the years you resided together impacted Mr Peat’s ability to defend or stand up for himself. This context is compounded by Mr Peat’s pre-existing vulnerabilities. The vulnerability of Mr Peat during the prolonged attack which continued after Mr Peat was rendered unconscious and completely defenceless clearly engages this sub-section.11

Notional MPI

[29]              Having concluded that two of the s 104 aggravating factors are present, I also now consider the appropriate MPI in accordance with ordinary sentencing principles. In doing so, I need to consider the culpability of the offending in relation to what is described as “the standard range of murders” by assessing the aggravating or mitigating factors of the offending.

[30]              The offending involved actual violence.12 Mr Peat was the victim of a prolonged attack over the course of the evening, and throughout the unit. Elements of the attack were brutal, as I have already said. The outcome was the loss of Mr Peat’s life.13 The harm to Mr Peat involved extremely serious injuries –– he died of blunt force trauma and suffered from bruising and abrasions to his face and body, nasal fractures, a brain injury and rib fractures. You attacked Mr Peat despite him begging you to stop.14 You did not stop even after you rendered him unconscious.

[31]              There were also elements of premeditation.15 Mr Peat left the house for about an hour after the first assault of the evening, and upon his return, you recommenced the attack. You also took a break for several minutes after Mr Peat was unconscious, before continuing. The beating was deliberate and prolonged. This increases the culpability of the offending.

11     See similarly R v Tai [2018] NZHC 1602 where the Court found that a 22 year old victim could be regarded as particularly vulnerable by virtue of long term serial abuse.

12     Section 9(1)(a).

13     Section 9(1)(d).

14     Section 9(1)(e).

15     Section 9(1)(i).

[32]              Mr Peat was particularly vulnerable for reasons I have already explained.16 Mr Peat opened his home to you when you had nowhere to live. You subjected him to abuse throughout the years you lived together, and it was no doubt appreciated by you that Mr Peat was unable to defend himself to such an attack.

[33]              Cases of repeated violence within the household which ultimately lead to murder are recognised as attracting higher minimum periods of imprisonment. An example is the Court of Appeal’s decision in Hohua v R where a 17 year minimum period was upheld.17 Given the particular aggravating features already outlined, and the lack of mitigating factors, I am satisfied that a starting point of 18 years would be appropriate for the minimum period of imprisonment.

Your personal circumstances

[34]              The remaining question is whether there could be a reduction from the 18 year minimum period of imprisonment because of personal circumstances.

[35]              I have the benefit of a pre-sentence report prepared by the Department of Corrections, a cultural report from Ms Susan Anderson, and a psychological report from Dr Barry-Walsh.

[36]              You had a difficult early childhood. Both your parents were killed in a car accident when you were six months old, and you were brought up by your aunt and your cousin. You suffered physical abuse during your upbringing. But you were raised on a marae emersed with the culture and Te Reo and consequently have strong connections with your iwi and hapū. You completed your NCEA levels, and were a school prefect and you completed a qualification in Te Reo at Massey University. You had a successful start to your working life teaching Te Reo to health and social workers at Ngāti Ruanui. You were nevertheless connected as a party to an aggravated robbery committed by your friend you met through work, and you went to prison for two years. You still had a positive working life teaching tikanga and other elements of Māori

16     Section 9(1)(g).

17     Hohua v R [2019] NZCA 533.

culture at local schools linked to the marae, however, and you had responsibilities for the hapū and iwi, and engaged in some cultural consultancy work.

[37]              You then suffered a series of setbacks in your life between 2017 and 2020, as you lost four close family members. You turned to alcohol and other substances and developed depression. You have a seven year old daughter who is very important to you, and you struggle with being separated from her. Other children which you had sadly died. You have indicated to the report writers that you feel deep sorrow for taking Mr Peat’s life.

[38]              Your background reveals you have a tendency to manage relationships through power and control when conflict emerges. Dr Barry-Walsh indicates that some of your difficulties are understandable in the context of your upbringing. But I do not consider that that upbringing mitigates your moral culpability in a way that it suggests an alteration to the minimum period of imprisonment is appropriate. You developed a very strong connection with your culture and were living a positive life. Yet you have committed what can only be described as a brutal murder which was a consequence of a highly abusive relationship with Mr Peat. At a certain point you have made choices in your life that have led you to where you are now. What your history suggests is that it is not beyond you to be a good person, but you have chosen not to be. I do not accept that the minimum period of imprisonment should be reduced because of your personal circumstances. You must now serve your time for what you have done. I see your case as similar to that of R v Hohua where the Court of Appeal similarly upheld a 17 year MPI notwithstanding mitigating circumstances revealed in a cultural report.18

[39]              I do consider, however, your background and circumstances, including your expression of remorse is relevant to the discount that is available to the minimum period of imprisonment because of your guilty plea. Guilty pleas are significant because they avoid the need for those affected by your offending to go through a trial, and your plea recognises your acceptance of responsibility for what you have done. Your plea here was not at the first opportunity however. Discounts for guilty pleas in

18     R v Hohua, above n 17, at [44]–[45].

s 104 cases are discretionary and generally in the vicinity of one to two years no matter what the MPI starting point.19 I agree with the submission of the Crown that the appropriate approach in the present case is for the minimum period of imprisonment to be reduced by one year. The recent decision of the Court of Appeal in Purutanga v R similarly involved a case where the Court considered a notional minimum period of 18 years was available, but a discount of one year was considered appropriate given the timing and strength of the Crown’s case and the relevant background of the person in that case.20 I consider your circumstances are broadly comparable to the circumstances of that case.

[40]              In relation to the other offences to which you have entered your guilty pleas I will formally enter sentences that will be served concurrently with your sentence for murder. On the representative charge of injuring with intent to injure the sentence will be two years’ imprisonment, the wounding with intent to injure three years’ imprisonment, and the charge of assault with intent to injure of Ms Johnson 12 months’ imprisonment.

[41]              Mr Wilson-Tipa will you please stand. On the charge of murder of Lionel Peat you are sentenced to life imprisonment and to a minimum period of imprisonment of 17 years. On the other charges you are sentenced to concurrent terms as I have just indicated.

[42]Please stand down.

Cooke J

Solicitors:

Crown Solicitor, New Plymouth

Marsland Chambers, New Plymouth for defendant

19     R v Gottermeyer [2014] NZCA 205 at [85] citing R v McSweeney [2007] NZCA 147; R v Frost

[2023] NZCA 294 at [78].

20     Purutanga v R [2023] NZCA 442.