Timutimu v The King
[2023] NZHC 329
•28 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000350
[2023] NZHC 329
BETWEEN TE AWANUI TIMUTIMU
Appellant
AND
THE KING
Respondent
Hearing: 27 February 2023 (by VMR) Appearances:
Appellant in Person
A Al-Janabi for Crown
Judgment:
28 February 2023
JUDGMENT OF VENNING J
Appeal against sentence
This judgment was delivered by me on 28 February 2023 at 2.15 pm.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Manukau Copy to: Appellant
TIMUTIMU v R [2023] NZHC 329 [28 February 2023]
[1] On 2 August 2022 Judge K Grau sentenced Te Awanui Timutimu to 10 years, 10 months’ imprisonment on a charge of wounding Martin Murray with intent to cause him grievous bodily harm.1 The sentence was imposed following Mr Timutimu’s guilty plea, which he had entered during the course of his trial. Mr Timutimu represented himself at trial but the trial Judge had appointed counsel to assist.
[2] Mr Timutimu now appeals against the sentence as being manifestly excessive. Again Mr Timutimu represents himself.
Background
[3]I take the summary of facts from Judge Grau’s sentencing notes:
[3] Mr Murray was your landlord and you two lived together at his property in Botany Downs, a property that Mr Murray bought a few years ago. It seemed to me that, while you were not close friends, you got along all right, and I remember hearing evidence that sometimes you would keep to yourself, other times you might both have your dinner in front of the TV and watch a bit of TV together, but there were no issues between you. In one of the victim impact statements that I have read, from Martin’s son, Joseph, he said that he had counted you as a kind person. But all of that changed when you went into the lounge and asked Mr Murray why he was tracking you. He did not know what on earth you were talking about. You tried to get him to fight you. You are a much bigger man than he is.
[4] You insulted him for not fighting you. You started slapping him. You knocked him around. You grabbed him by the throat and you threw him onto the sofa so that he was lying face down. You got on top of him and squeezed his throat. Mr Murray was trying to protect himself. You put your fingers into his left eye and destroyed his vision in that eye. That must have been so painful and terrifying.
[5] You then dragged him off the couch and onto the floor and you said something like that you were coming for his other eye. You did that. You put your fingers into his right eye and you removed his sight in that eye as well, when at that stage he was completely defenceless.
[6] I remember Mr Murray saying at the trial that after you had blinded him in one eye, he looked at the wall and thought “This is the last thing I will ever see.” It was.
[7] You called 111 and the call disconnected. The police rang you back and you told them there had been an assault. They asked you if the offender was still there and you said: “Yeah it’s me.” You also said something to Mr Murray, expressing surprise that he was still alive and said: “No one is coming for you.”
1 R v Timutimu [2022] NZDC 14641.
[8] Mr Murray managed to get outside despite what were horrific injuries. The police found him outside covered in blood and stumbling around. You were covered in blood as well.
[9] These are the injuries that Mr Murray suffered. Permanent blindness in both eyes, a fracture to his right zygomatic arch - that is the cheekbone, a large left orbital blowout fracture, tears and cuts to his face, chipped and broken teeth, and broken bones in his throat.
District Court sentence
[4] Judge Grau took a starting point of 12 years’ imprisonment. She allowed a discount of five per cent for Mr Timutimu’s guilty plea, even though it was only entered after Mr Murray, the victim, had given evidence, and allowed a further five per cent for references in a s 27 report which suggested Mr Timutimu was suffering from mental health issues, particularly paranoia. The resultant 10 per cent or 14 month discount led to the end sentence of 10 years, 10 months’ imprisonment.
Section 38 report
[5] In the course of preparation for the appeal hearing the Court directed the preparation of a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). Dr Rishi Duggal, consultant psychiatrist, has interviewed Mr Timutimu and provided a report to the Court. In that report Dr Duggal concludes that Mr Timutimu’s presentation was most consistent with a delusional disorder. A possible differential diagnosis includes schizophrenia. Dr Duggal considers Mr Timutimu has an abnormal state of mind of a continuous nature characterised by delusions and meets the statutory definition of mental disorder under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[6] Shortly before the hearing Dr Bevin also saw Mr Timutimu. She met with him to discuss and consider medication for a paranoid illness. When the issue of his condition was raised Mr Timutimu is reported as saying that he would not have taken an insanity defence as he “did do it”. He confirmed he was representing himself and did not want to engage a lawyer.
[7] As noted, Mr Timutimu presented the appeal on his own behalf. He was polite and articulate. During the hearing the Court discussed the reports with Mr Timutimu. The upshot of that discussion is noted at the conclusion of this judgment.
[8] The Court is left in this position. It has a sentence appeal before it. The Court must deal with the sentence appeal on the merits and on the information it has before it now.
Approach to the appeal
[9] As a sentence appeal this Court must allow the appeal if satisfied that if, for any reason, there was an error in the sentence imposed and a different sentence should be imposed. In Tutakangahau v R2 the Court of Appeal confirmed that the previous approach taken to sentence appeals still applied. It is for the appellant to identify an error, and the appeal court must be satisfied a different sentence should be imposed. While the Criminal Procedure Act 2011 (CPA) makes no express reference to the concept of manifestly excessive or inadequate sentences the concepts are longstanding, consistent with the statutory language in the CPA and should continue to be applied.
Appeal points
[10] In support of the appeal in the present case Mr Timutimu raised the following points:
(a)the late delivery of initial disclosure. Mr Timutimu submitted the proceedings were commenced on 7 October 2021 but he did not receive initial disclosure until 5 November 2021, outside the time provided by s 12 of the Criminal Disclosure Act 2008;
(b)the sentence imposed breached his right under s 25(g) of the New Zealand Bill of Rights Act 1990 (NZBORA), namely the right if convicted of an offence in respect of which the penalty has been varied
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 2014 NZCA 279.
between the commission of the offence and sentencing, to the benefit of the lesser penalty;
(c)Mr Timutimu raised an issue about rent paid to the victim after arrest, noting that Corrections had not allowed him to recover his bank accounts;
(d)the five per cent allowed for his guilty plea was inadequate. Twenty per cent should have been allowed;
(e)the first strike warning should be removed from his record;
(f)Mr Timutimu noted the recent psychological report obtained under s 38 of the CPMIP.
Analysis
[11] A number of the matters raised by Mr Timutimu can be dealt with in short order. The Criminal Disclosure Act has no relevance to the sentencing exercise or the sentence imposed. Next, s 25(g) of the NZBORA (which is directed at statutory amendments) has no application in this case. Mr Timutimu was concerned that at an earlier date he had received a sentence indication from Judge C J Field with a starting point of nine years and the possibility of a 25 per cent discount for a guilty plea.3 However, that indication was in April 2022, before the trial which commenced in June 2022. Mr Timutimu did not accept the sentence indication. Judge Grau was not bound by it. The issue of rent and Mr Timutimu’s bank accounts were not a consideration in Judge Grau’s sentence. That issue has no relevance.
[12] The “three strike legislation” was repealed on 16 August 2022. Any first warning given prior to its repeal can have no impact on the sentence Mr Timutimu is serving.
3 R v Timutimu DC Papakura CRI-2021-092-007757, 26 April 2022.
[13] That leaves consideration of the guilty plea discount and the allowance for the matters disclosed by the recent psychological report obtained under s 38 of the CPMIP.
[14] Although Mr Timutimu did not expressly address the starting point other than to refer to the previous sentence indication, the starting point taken by Judge Grau of 12 years was available to her. This offending was serious offending. It was clearly within band 3 of the R v Taueki4 and towards the top of that band. It was an attack to the head in the victim’s home. It has had a terrible and lifelong impact on the victim. It is near to the most serious of cases for which the penalty is prescribed for wounding with intent to cause grievous bodily harm. However, given that starting point, like the Judge, I would not uplift it for Mr Timutimu’s previous offending.
[15] That leaves consideration of the allowances for mitigating factors. While Ms Al-Janabi accepted that matters raised in the s 38 report as to Mr Timutimu’s mental condition and his paranoia may have been relevant to his culpability, she noted that the issues had been hinted at in the s 27 report and that the Judge had taken account of them in applying a further five per cent reduction. She further submitted that the five per cent reduction in sentence for the guilty plea was generous, bearing in mind it was only entered after the victim had concluded his evidence. She suggested a further uplift could have been applied for Mr Timutimu’s previous convictions.
[16] I agree with the Judge’s assessment that the s 27 report disclosed Mr Timutimu had strong connections to cultural values and a sense of belonging. No allowance was necessary for any disconnection from his culture. I also agree with Ms Al-Janabi that the five per cent discount for a guilty plea was in the circumstances somewhat generous. Mr Timutimu’s suggestion that it should have been 20 per cent is misconceived. The plea was very late in the piece. The victim was retraumatised by having to give evidence. Further, Mr Timutimu had no apparent defence to the charge (subject to the issue addressed below).
[17] The issue of the further information in the medical report does however provide a medical basis to confirm the matters referred to in the s 27 report which may have impacted on Mr Timutimu’s culpability.
4 R v Taueki [2005] 3 NZLR 372 (CA).
[18] Standing back and assessing all mitigating factors in Mr Timutimu’s favour, including the guilty plea but particularly the further medical information disclosed in the medical report before the Court, would permit an overall reduction in sentence for all mitigating factors of 16 per cent.
[19] That would lead to an end sentence of 10 years’ imprisonment. Such a sentence imposed without a minimum period of imprisonment is the appropriate sentence in this case.
Result
[20] The appeal is allowed. The sentence of 10 years, 10 months is quashed. It is replaced with a sentence of 10 years’ imprisonment.
Venning J
Addendum
[21] As discussed with Mr Timutimu the matters in the s 38 report might possibly raise issues of whether a defence of insanity could have been available to him. I do not express any view on that or put it any higher than that possibility. I advised Mr Timutimu that he would be well advised to take legal advice to consider that matter further. He acknowledged that point.
[22] In the meantime, if in dealing with Mr Timutimu Corrections are concerned about him or his mental state then s 45 of the Mental Health (Compulsory Assessment and Treatment Act) 1992 could be invoked if necessary.
Venning J
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