Tuau v R
[2012] NZCA 146
•17 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA322/2011 [2012] NZCA 146 |
| BETWEEN TOA RANGATIRA TUAU |
| AND THE QUEEN |
| Hearing: 26 March 2012 |
| Court: Randerson, Keane and Lang JJ |
| Counsel: N P Chisnall and J S Gurnick for Appellant |
| Judgment: 17 April 2012 at 11.30 a.m. |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe sentence of five years, six months imprisonment is quashed and a sentence of four years, six months imprisonment is substituted.
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REASONS OF THE COURT
(Given by Keane J)
On 28 April 2011 Toa Tuau was sentenced in the District Court, Hamilton, to imprisonment for five years, six months, for wounding his father on 21 October 2010 with intent to cause him grievous bodily harm. Mr Tuau appeals that sentence as manifestly excessive.
Mr Tuau does not challenge Judge Spiller's starting point for sentence: imprisonment for eight years, nine months. He does not, and cannot, dispute that he was seriously violent. He first rendered his father unconscious by blows to the head. Then he stabbed his father in the left eye with a 27 cm boning knife. Very fortunately, his father suffered no significant lasting injury. On this appeal Mr Tuau contends rather, the global discount that the Judge allowed him, 37 per cent, was manifestly inadequate.
In fixing that discount, Mr Tuau contends, the Judge recognised principally, if not exclusively, his guilty plea and the fact that he was previously a person of good character. At age 30, he had no previous convictions. But he contends the Judge should also have allowed him discounts on three related bases: that his father provoked him; that his father had assaulted him from an early age; and that on the day of his offence he was especially vulnerable, he suffers chronic paranoid schizophrenia and was then psychotic.
In advancing his appeal, Mr Tuau relies not just on the materials before the Judge but also, unopposed by the Crown, on the opinion of a clinical psychologist, Ms Raethel, obtained for this appeal. Her opinion is that the abuse Mr Tuau suffered at his father's hands from a young age materially contributed to his offence.
Context
On 21 October 2010, the day of his offence, Mr Tuau, then aged 30, was living, it seems temporarily, in the family home in Hamilton with his father, then aged 50, and some of his 11 brothers and sisters. His mother, aged 48, had died not long before and they were still coming to terms with that loss.
On 21 October at 3 pm, when Mr Tuau and his father were the only adults in the house, the father, who had spent the day drinking alcohol in a sleep-out, came into the house to check on a grandchild. As he passed through the kitchen where Mr Tuau was preparing dinner, Mr Tuau says, he accused him of having been a molester; an aggressive accusation that Mr Tuau found very threatening.
Shortly after, Mr Tuau, as he admitted to the police soon afterwards, followed his father into the lounge and almost immediately began to assault him. He first punched his father to the head perhaps 15 times and then, once he had rendered him unconscious, collected the boning knife from the kitchen and stabbed his father in the left eye. He told the police that he wanted to kill his father.
As a result, Mr Tuau's father suffered lacerations in the vicinity of his left eye. More seriously, he suffered a fracture to his left eye socket and an injury to that orbital aspect of his eye. He underwent surgery. Fortuitously, he has since made a complete recovery, as he said in his victim impact statement, though he still suffers a degree of double vision.
On 27 October 2010, when Mr Tuau first appeared in the District Court, he was remanded for a psychiatric report; and in a report, dated 26 November 2010, Dr Van Zeist-Jongman confirmed, having assessed Mr Tuau at the Henry Bennett Centre on 22 November 2010, that he was fit to stand trial and was unlikely to be able to invoke the defence of insanity.
However, Dr Van Zeist-Jongman also confirmed that Mr Tuau was mentally unwell.He had suffered paranoid schizophrenia for at least seven years, and though he had been relatively stable since 2006, he had regressed as a result of his mother's very recent death and mounting tension within the household. He was then psychotic and must have been so at the date of the incident.
On 2 December 2010, when Mr Tuau next appeared, his counsel sought a sentence indication and Mr Tuau was remanded to a hearing on 27 January 2011. On that next date, however, the Crown sought an adjournment and on the fresh date given, 9 March 2011, without seeking a sentence indication, Mr Tuau entered a guilty plea and was remanded for sentence on 28 April 2011.
On sentence the Judge had, as well as a pre-sentence report and the initial psychiatric report, a second psychiatric report dated 1 April 2011 obtained for the purpose of sentence. Unusually, he also had a list of Mr Tuau's father's previous convictions and a statement of facts relating to the most significant of his father's convictions, 11 assaults on five of Mr Tuau's younger brothers and sisters for which he was imprisoned in 1998 for two years.
Issues on appeal
There is no issue on this appeal as to the starting point the Judge took for sentence, eight years, nine months. The Crown contended that Mr Tuau's offence lay within band three, R v Taueki,[1] and Mr Tuau's counsel that it lay within band two. The Judge, though he did not say so, must have seen it as lying at the upper end of band two, which fixes starting points in the range of five to ten years imprisonment.
[1] R v Taueki [2005] 3 NZLR 372.
As the Judge rightly said, speaking on sentence to Mr Tuau, "This attack on your father was extreme, it was prolonged, it involved punches to the head, it involved the use of a knife, and it involved stabbing in his left eye." No less germane, as the Judge also said, Mr Tuau had resorted to the knife once he had rendered his father unconscious.
Mr Tuau also accepts that the Judge correctly identified two of the distinct bases on which he was entitled to a discount, the fact that he had no previous convictions and was to be deemed a person of good character, and that he had pleaded guilty to his offence. The only related issue that does arise, to which we will refer shortly, results from the fact that the Judge did not make explicit the discounts he gave.
Mr Tuau takes issue with the Judge's decision to deny him discounts on the bases that he only assaulted his father after his father provoked him and that he responded as extremely as he did only because he had suffered violence at his father's hands from a young age. The Judge seemingly tied the two together. He described the first as "any words that might have occurred to cause this behaviour" and the second as Mr Tuau's father's "previous conduct". He concluded that neither amounted to "sufficient provocation in the legal sense, although what your father said made you angry".
Mr Tuau also takes issue with the Judge's decision only to "bear ... in mind" his mental illness when fixing his sentence; and the Judge's related conclusions that "from a strictly legal point of view" there was no sufficient "link" between his illness and his offence; that the materials on sentence fell short of establishing that Mr Tuau suffered "diminished intellectual capacity or understanding".
It is here that the Judge's omission to make his discounts explicit causes difficulty. It is not possible to say whether or not he allowed Mr Tuau any discount for his mental illness.
Counsel's submissions
The 37 per cent discount the Judge allowed, Mr Chisnall submits for Mr Tuau, is most likely attributable, or is attributable principally, to the two mitigating factors that the Judge clearly did take into account, Mr Tuau's guilty plea and his previous good character.
The Judge set the bar too high, Mr Chisnall contends, when he failed to allow Mr Tuau any discount for having been provoked by his father, or for having reacted as extremely as he did because his father had abused him physically from a young age, or for the fact that he was then particularly unwell. The Judge, Mr Chisnall submits, ought not to have looked at each of these factors discretely. He should have recognised the interplay between them.
Counsel for the Crown, Ms Jelaś, contends by contrast that the Judge made no error when he examined each of these factors discretely.
Provocation and self defence
It is not clear whether, when Mr Tuau was interviewed by the police soon after assaulting his father, he claimed to have been provoked or to have acted in self defence. What is clear is that he made that claim immediately when he was interviewed by Dr Van Zeist-Jongman on 22 November 2010.
Mr Tuau told Dr Van Zeist-Jongman that his father had coped with his mother's death by drinking excessively and had become increasingly aggressive. On the day of his offence, he said, his father was drunk and aggressively provocative and accused him of being a "homosexual molester". It was then, he said, that he became so angry that he wanted his father dead.
According to his pre-sentence report, dated 20 April 2011, Mr Tuau said that his father had been provoking him for months and on the day of his offence had called him a molester and threatened to kill him. Here too, he said, he lost control and became so angry he wanted to kill his father. He said he could not take any more of his abuse.
Mr Tuau then added that he had done "everything by the book" because his father had threatened to kill him. He saw himself as at risk and, apart from his state of anger, he considered that he had to assault his father sufficiently to prevent his father retaliating "twice as hard". He expressed some remorse and regret for having offended but little towards his father.
Principle
In Taueki this Court held that provocation and self defence are two factors that can reduce the seriousness of grievous bodily harm offending and may call for lower starting points, but emphasised the need for a cogent basis. Speaking of provocation, the Court said: [2]
It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative clause throughout the commission of the offence.
[2] At [32](a).
Then, speaking of excessive self defence, a claim that Mr Tuau also at least implicitly makes in this instance, this Court said:[3]
Similarly, where a party has acted out of self defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.
Conclusion
[3] At [32](b).
We accept the Judge faced a difficulty over these claims for a discount. Taken in isolation they amounted to no more than claims. But they must be considered in the context of the other discounts that he claimed for which there was an objective basis.
Reactive violence
Mr Tuau told Dr Van Zeist-Jongman that his father had physically abused him, his mother and his six brothers and five sisters, and that his father had been denied access to the children by the Children, Young Persons and Their Families Service on several occasions. He said this as well in his pre-sentence report. In his second psychiatric report he said of his father "he did beat on us kids. He was a hard man."
Mr Tuau told Ms Raethel, after sentence was imposed, that his father threatened him with a knife; threw him across the kitchen; held him by the neck against a wall with his feet off the ground, choking him; forced him to do press ups for hours at night; wielded an axe near his head narrowly missing him; hit him about his head and on one occasion rammed his head against a wall hard enough to damage the wall. He described his home as being like a "horror movie".
None of these allegations were before the Judge. Nor were any such assaults ever the subject of prosecution or conviction. But the issue remains whether the Judge did, nevertheless, have enough objective material before him to require Mr Tuau to be given a discount on this basis.
Principle
In R v Whiu[4], and in other cases, this Court has accepted that women for sentence for violent offending, who have suffered violence at the hands of their victim, or others, and suffer "battered women's syndrome", may be entitled to discounts in the vicinity of 25 per cent[5]; and there is no reason in principle why a man who has suffered to the same extent should be denied such a discount.
[4] R v Whiu [2007] NZCA 591.
[5] See for example R v Paton [2009] NZCA 155.
In her report for the purpose of sentence Ms Raethel, a clinical psychologist, summarises the extent of research into the effects of severe child abuse on the ongoing lives of children, both as children and adults:
When children experience severe and prolonged physical abuse from a young age they are likely to be living in a climate of tension and ongoing helplessness. The actions of their abusers are likely to be random and unpredictable. They frequently do not know what actions on their part will precede violence and they become hypervigilant and chronically fearful. They are usually unable to defend themselves against the abuser. Retaliation or resistance is likely to lead to further and more severe violence toward them.
Ms Raethel continues to say "Survivors of physical abuse appear to show more autonomic arousal e.g. tension, jumpiness, flinching and intrusive thoughts of being violent or of suddenly being injured". She concludes her report with this statement from a 1992 text:[6]
Reactions in physical abuse survivors are often triggered by the survivor's own angry or rageful feelings, overt conflict with others, violent events, or being in the presence of someone who is physically frightening.
[6]J. Briere Child Abuse Trauma: Theory and Treatment of the Lasting Effects (Sage Publications, Newbury Park California, 1992)
In her report Ms Raethel makes no distinction between men and women who have suffered such abuse as children. Nor can there be. Rather, what seems to us essential when any such claim is made, as this Court said in Whiu, is that there be an "evidential basis" for concluding beyond a mere likelihood that there has indeed been "prolonged abuse" and that it "materially contributed" to the offending for sentence.[7]
Conclusions
[7] At [32].
Highly pertinent to this issue on sentence, we consider, were the materials the Judge had relating to Mr Tuau's father's 1998 conviction for assaults on his younger brothers and sisters, 11 such offences, six with a weapon, and a number representative in character. That he was sentenced to imprisonment for two years is a measure of their seriousness.
Mr Tuau's father, as it appears from the statement of facts on sentence, did not deny having assaulted his then 14 year old daughter, once by using a stick, hitting her everywhere, including her head; and, during her primary school years, especially when he had been drinking, slapping and kicking her to a number of parts of her body.
Mr Tuau's father admitted as well to assaulting his then 11 year old son from the age of five, perhaps once a week; to dragging his son across the floor and banging his head into a wall; to punching him with a closed fist to his head and body; to slapping him across the lips; to hitting his head with a wooden bread board; to hitting all parts of his body with a metal pipe; and to lifting him off his feet by the throat, choking him. He admitted to further serious assaults on his still younger children, aged eight, seven and four.
This sustained pattern of violence to which Mr Tuau's father admitted has to supply an objective basis for Mr Tuau's claim to have been assaulted in just those ways by his father. That pattern explains how he decided he had no alternative but to attack his father to avoid being attacked; and no alternative but to render his father unconscious and stab him out of fear that, unless he went that distance, his father would retaliate with even greater force.
Mental illness
An offender, who was mentally unwell at the date of the offence, and remains so, may well be entitled to a discount for that reason alone, though not able to rely on the defence of insanity, because he or she is likely to be less "morally culpable" than a well offender, less requiring of a deterrent sentence and perhaps less able to tolerate a usual sentence of imprisonment. Discounts have ranged between 12 to 30 per cent.[8]
[8] See for example E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
Here too everything must depend on the nature and severity of the offender's illness at the time of the offending and the extent to which there may have been a causal nexus between that illness and the offending, as well as the nature and severity of the offender's condition at the time of sentence; and here the evidence that was before the Judge is at its most compelling.
Dr Van Zeist-Jongman records that Mr Tuau had attempted suicide three times before his 20th year, first at 14 when he was very unhappy and very afraid of his father, then at 18 when he was hearing voices and suffering hallucinations, and then at 19. He was diagnosed from an early age, Dr Van Zeist-Jongman records, to suffer from paranoid schizophrenia. This was his 12th psychiatric admission.
Also complicating, Dr Van Zeist-Jongman said, was that by age 17 Mr Tuau was a heavy drinker and used cannabis several times a week; and so, he said, it was "very remarkable" that Mr Tuau had remained within the community in a reasonable mental state since 2006. He explained Mr Tuau's psychotic state, when re‑admitted to hospital on 3 October 2010, in this way:
It seems that the sudden death of his mother, two months ago, caused a new psychotic decompensation. It also caused the family to move back in together, and the alcohol abuse of father but also of Mr Tuau increased. Mr Tuau started to feel increasingly threatened by his psychotic experiences and became increasingly irritated by his father's abusive behaviour, which accumulated in the very serious assault on his father.
Mr Tuau was still obviously suffering from a paranoid psychosis, Dr Van Zeist-Jongman said, when he saw him on 22 November 2010. For the first 15 minutes he was organised, matter of fact and coherent. Then he fluctuated from being positive to irritated. His thinking while coherent was complicated by the paranoid delusion that people had killed his mother out of revenge and were waiting outside the hospital to get him. His insight and judgment remained impaired.
Even when Dr Majeed interviewed Mr Tuau on 30 March 2011, after he had returned to the community, stabilised by anti‑psychotic medication, and though he proved spontaneous, fluent and coherent, he was still to a degree delusional and reported having suffered auditory hallucinations. That cannot be ignored.
Aggregate discount
We agree that each source of discount must be justifiable discretely. Equally, however, we consider, these sources of discount can and often do converge and it can be artificial to ignore that reality.
We conclude the Judge was right to allow Mr Tuau a discount for his good character, for the fact that at age 30 he had no previous convictions, whatever that discount may have been. But the Judge should have gone further. He should have allowed Mr Tuau a significantly greater discount than he did to recognise why it was that he offended and as seriously as he did.
We are satisfied that Mr Tuau only offended as he did because he and his father were thrown together when each was grieving the loss of Mr Tuau's mother. Mr Tuau's father, we accept, was in all likelihood drinking excessively and had become increasingly aggressive. Mr Tuau himself, as a result of the abuse he had suffered at his father's hands from an early age, was hypervigilant and fearful, more especially because he was then in a psychotic state.
We consider that, in attacking his father as seriously as he did, Mr Tuau was less "morally culpable" than he would have been if he had not been provoked by his father and had not suffered these deficits. In our view, he is entitled to a 30 per cent discount on that account. That would reduce his sentence to six years, one month before applying the discount for his guilty plea.
Plea discount
When Mr Tuau first appeared on 27 October 2010 his very capacity to plead was in issue; and though he had been found fit to plead before his next appearance on 2 December 2010, he was then still unwell and his counsel was prudent to seek a sentence indication.
That indication was to be given on 27 January 2011 but, as a result of the Crown's application, could not be given until 9 March 2011, the date on which Mr Tuau did plead without seeking an indication. Even then there remained an issue whether his chronic mental illness ought to govern the sentence imposed and a further psychiatric report was called for.
We are satisfied that Mr Tuau did plead at the first reasonable opportunity and that there is no reason why he should be denied a full 25 per cent discount; a discount that the Judge may already have allowed him.
Result
We allow Mr Tuau's appeal against sentence. His sentence of five years, six months is quashed. He will be sentenced to imprisonment for four years, six months.
Solicitors:
Crown Law Office, Wellington for Respondent
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