Appellant. THE QUEEN Respondent. Randerson, Heath and Asher JJ JUDGMENT OF THE COURT REASONS OF THE COURT. (Given by Heath J)

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA281/2013 [2013] NZCA 623 BETWEEN AND IORITANA TUAU Appellant THE QUEEN Respondent Hearing: 18 November 2013 Court: Counsel: Judgment: Randerson, Heath and Asher JJ E A Hall for Appellant J E Mildenhall for Respondent 6 December 2013 at 2.00 pm JUDGMENT OF THE COURT The appeal against sentence is dismissed. REASONS OF THE COURT (Given by Heath J) The appeal [1] Mr Ioritana Tuau was charged with one count of wounding with intent to cause grievous bodily harm, arising out of an incident that occurred in the early hours of 15 September On 26 February 2013, about two weeks before the scheduled trial, he pleaded guilty to that charge and was remanded for sentence, in the High Court at Wellington, on 8 April On that day, Miller J imposed a term TUAU v R CA281/2013 [2013] NZCA 623 [6 December 2013]

2 of imprisonment of nine years, with a minimum non-parole period of four years and six months, 1 representing one-half of the finite sentence. [2] Mr Tuau appeals against the finite sentence imposed, on the grounds of manifest excess. He also challenges the minimum sentence of imprisonment, on the grounds that it was unnecessary. Facts [3] Mr Robert Bryden and two friends had been drinking alcohol throughout the afternoon on 14 September That evening, they decided to travel by train from the Kapiti Coast into Wellington. They spent the rest of the night, and the early hours of the next day, at various bars along Courtenay Place and its environs. Much alcohol was consumed. [4] Just after 3.30 am, on 15 September 2011, the three men began to walk back towards the Wellington Railway Station. As they did so, they came across Mr Tuau. He was arguing with a woman in front of Café Baba. Mr Bryden and his friends stopped. Mr Bryden asked whether Mr Tuau and the woman needed any help. Mr Tuau replied that we New Zealanders can take care of ourselves. Seemingly in response to that comment, Mr Bryden hit Mr Tuau. Evidence from by-standers suggests that there might have been a flurry of blows. Whatever happened, the force of the attack stunned Mr Tuau and caused him to stumble across the footpath and fall onto the road. Mr Bryden and his associates continued on, turning into Tory Street. [5] Mr Tuau was helped to his feet by two males, neither of whom was known to him. With some encouragement from them, all three gave chase to Mr Bryden and his friends. Realising what was happening, Mr Bryden saw an entranceway on the left-hand side of Tory Street. It was the driveway access to the Tory Street entrance of the Tournament Parking car park. At that time of the morning, the doors to the car park were locked. While his friends managed to run off, Mr Bryden was cornered at the entrance to the closed car park. He was confronted by Mr Tuau, and the other two men. 1 R v Tuau [2013] NZHC 681 at [36] and [38].

3 [6] Initially, all three men appear to have had some involvement in the attack on Mr Bryden. Mr Tuau began punching Mr Bryden, knocking him to the ground. While in that prone position, Mr Tuau kicked him in the head. In doing so, Mr Tuau held onto a nearby handrail with his left hand, in order to gain greater leverage. Mr Tuau s associates kicked Mr Bryden s legs and feet. On each occasion when Mr Bryden s head was kicked, it hit a concrete barrier behind him, making (what must have been) a sickening thudding noise. Eventually, Mr Bryden lost consciousness. After intervention from a member of the public, Mr Tuau and his associates left the scene. [7] Mr Bryden was taken to hospital, unconscious and in a critical state. After CT scans had been taken, he was admitted into the intensive care unit. The scans revealed swelling to his head and a fractured right eye socket. Mr Bryden was kept on a ventilator, and was sedated for a number of days, while the swelling on his brain reduced. He was admitted to a brain injury unit for rehabilitation on 18 October Currently, he is unable to move purposefully and cannot speak. His prospects of ever being able to do much more are slim. [8] On 20 September 2011, after seeing a CCTV image of himself on a website, Mr Tuau voluntarily went to the Lower Hutt Police Station, accepted involvement and provided the clothes and shoes that he had been wearing that night to the police. Mr Tuau told police officers that, as a result of his state of intoxication, he could not remember the detail of what occurred. In particular, he had no recollection of any kicking or stomping. Pre-sentence report [9] At the time of the offending, Mr Tuau was 20 years old. He was described by the pre-sentence report writer as a Cook Island Maori [who was] well supported by a large family who exhibit a pro-social attitude. [10] The probation officer determined that factors relating to the risk of reoffending were violence, relationships and alcohol. Mr Tuau was assessed as genuinely deeply regretful for the vicious and unrelenting attack on the victim and seeks atonement for his violent actions which have irrevocably altered the course of

4 the victim s life and indeed his own. He was said to be clearly deeply ashamed for what he has done. [11] Mr Tuau was assessed as highly motivated to address his offending needs and was (at the time he met with the pre-sentence report writer) undertaking rehabilitative programmes, including attendance at a drug treatment unit. His risk of reoffending was assessed as low, due to lack of previous conviction history, acceptance of guilt, remorse, and positive attitude and the pro-social changes he has already made in his life. Submissions on appeal [12] For Mr Tuau, Ms Hall submitted that the end sentence was manifestly excessive and a minimum non-parole period unnecessary. [13] In challenging the end sentence, Ms Hall submitted: (a) The starting point taken for sentence (12 years imprisonment) was too high. (b) A full credit of 25 per cent for the guilty plea should have been provided, as if entered at the pre-committal stage. (c) Allowances for other mitigating factors were insufficient. [14] On the minimum non-parole period, Ms Hall submitted that one was not required for protection of the community or for deterrence. She submitted that the sentencing goals of denunciation and accountability alone did not justify the imposition of a minimum term. [15] Ms Mildenhall, for the Crown, submitted that the end sentence, while stern, was within range. She contended that the Judge had not erred in constructing his sentence on any of the bases advanced by Ms Hall.

5 [16] Ms Mildenhall submitted that a minimum period of imprisonment was necessary in this particular case to denounce the offending and to hold Mr Tuau accountable for it. Sentencing in the High Court [17] Miller J took a dim view of the offending. After recounting what had happened, and explaining the severity of Mr Bryden s injuries in some detail, the Judge characterised the offending as an exceptionally serious crime which must earn... a very long prison sentence. The Judge added that he was under no illusion that the sentence [would] deter anyone from offending in similar circumstances but that it would denounce Mr Tuau s conduct and hold him accountable for the terrible harm that he had done. Miller J did not regard Mr Tuau as a dangerous person from whom the community required protection for a long period of time. 2 [18] In considering what sentence ought to be imposed, Miller J applied the methodology directed, and the guidance given, by this Court in R v Taueki. 3 By reference to the features of grievous bodily harm offending, Miller J identified relevant aggravating factors as the attack to the head; the extreme violence used (including the use of the handrail for leverage); the devastating injury suffered by Mr Bryden; the group nature of the attack that disabled him; and his progressive vulnerability, once in a prone position. The Judge regarded the kicking or stomping to the head as a very serious aggravating factor because it both risks traumatic brain injury and invites the inference that the offender intends just such an injury. 4 [19] One of the aggravating factors to which Taueki refers is vigilante action. 5 That factor arises when serious violence results from one or more persons taking the law into their own hands, and (in the circumstances of this case) acting out of revenge. The weight to be given to that factor may be tempered if there [were] serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the At [22]. R v Taueki [2005] 3 NZLR 372 (CA) at [8] and [31]. At [23]. R v Taueki, above n 3, at [31(m)].

6 offence. 6 The Judge identified vigilante action as an aggravating factor but considered that it was offset by the degree of provocation involved. 7 [20] In determining a starting point, the Judge indicated that but for one factor a starting point of 14 years imprisonment would have been required for a crime that he regarded as among the most brutal, most harmful, most serious of its kind. 8 That one factor was the element of provocation. A period of two years was deducted from the maximum to allow for this factor, giving a starting point for sentence of 12 years imprisonment. 9 [21] Turning to mitigating factors, the Judge identified Mr Tuau s guilty plea, his remorse, his age, prior good character, co-operation with the police and family circumstances. The Judge gave a credit of 10 per cent for previous good character, but was not prepared to allow anything further for youth. Nor was any credit given for co-operation with the police or family circumstances. The Judge was sceptical about Mr Tuau s claims of rehabilitation. He based that view on two of four incidents during which Mr Tuau had breached terms of bail. 10 [22] In considering the credit that should be given for the guilty plea, Miller J looked at the circumstances in which the late plea had been entered. 11 He took the view that those circumstances did not justify what would be an abnormally large discount for a very late plea. The total credit allowed for the guilty plea and remorse, together, was 15 per cent. 12 The Judge also had concerns about representations made to Andrews J, when Mr Tuau was arraigned before her and pleaded guilty to the charge. Unusually, for such a serious crime, Mr Tuau was released on bail pending sentence. Andrews J had been informed that Mr Tuau s partner was about to give birth. The true nature of the relationship, as disclosed by the probation officer, was no more than a brief liaison. 13 The Judge assessed the At [32(a)]. R v Tuau, above n 1, at [23] and [27]. At [26], applying s 8(d) of the Sentencing Act At [27]. The background is explained in more detail in Rodney Hansen J s judgment of 14 August 2012, on a bail application: Tuau v Police [2012] NZHC 2052 at [2] [6]. See [35] [43] below. At [29] [33]. At [14] [15].

7 total credit as being one of 25 per cent, resulting in an end sentence of nine years imprisonment. 14 [23] Miller J then considered the Crown s submission that a minimum period of imprisonment should be imposed. That submission was opposed by counsel for Mr Tuau on the grounds that his previous good character and prospects of rehabilitation did not justify its imposition. While not unsympathetic to the submission, the Judge decided to impose a minimum term representing 50 per cent of the finite sentence. He said: Analysis [38]... The sentence I have just passed is stern, and minimum periods are not imposed lightly, especially for a first offender from whom the community does not need protection: that is a fair description of you. The Parole Board will take the seriousness of your crime into account when considering early release. But a minimum period is justified where the normal non-parole period is inadequate to meet the need for accountability and denunciation. Notwithstanding the mitigating factors, that need is exceptionally strong in your case. I think it compels a minimum period. And the shortest that I think I can impose is 50 per cent of the sentence I have just passed. (a) Starting point [24] In our view, Miller J s starting point of 12 years imprisonment was justified having regard to all the aggravating factors relating to the offence, when assessed against the maximum penalty of 14 years imprisonment. [25] This was a case involving extreme violence. 15 Mr Bryden, having been cornered near a locked public car park door was beaten, knocked down and kicked (or stomped upon) until he became unconscious. [26] By the time that Mr Bryden had been rendered unconscious and in a prone position he was undoubtedly vulnerable to further attack. That is a further aggravating factor. With respect, we disagree with Ms Hall s submission that vulnerability is only relevant in cases where the victim is a child, or there is a disparity in size or strength between the attacker and the victim. Taueki makes it At [33] [36]. R v Taueki, above n 3, at [31(a)].

8 clear that a person will be regarded as vulnerable for this purpose if disabled in some way, or otherwise rendered defenceless. 16 [27] Attacking the head of a victim is a further aggravating factor. 17 That is, as Miller J observed, for the obvious reason that traumatic brain injury can result from such actions. Further, the nature of the attack in this case was such as to make an inference that serious harm was intended irresistible. 18 [28] The effect of the crime on the victim is another aggravating factor. 19 Mr Bryden is unable to function on a daily basis without assistance from others. He cannot move purposefully and cannot speak. Life will be a misery for himself, and family and friends who support him. The seriousness of the injuries suffered cannot be overstated. [29] The element of vigilante action 20 can be seen from the way in which Mr Tuau, egged on by those who assisted him, chased Mr Bryden for the purpose of inflicting violence upon him as an act of retribution. However, we agree with the Judge that this aspect of the Taueki aggravating factors is tempered and offset by the provocation. [30] We regard the Judge s reduction of the starting point for provocation as generous. While the assault by Mr Bryden no doubt incensed Mr Tuau, his actions in exacting retribution were the likely result of encouragement that he received from the strangers who tended to him at Courtenay Place, and who also chased after Mr Bryden. By the time Mr Tuau began to assault Mr Bryden, the causal nexus between the provocative act and the assault on Mr Bryden had diminished. [31] When provocation is taken into account at sentencing, it is not enough simply to claim to have been incensed by the actions of the victim. Rather, as Taueki makes clear, the sentencing Judge [must] be satisfied that there was serious At [31(i)]. At [31(e)]. See [18] above. R v Taueki, above n 3, at [31(c)]. At [31(m)].

9 provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence. 21 [32] Leaving to one side the vigilante action, there are four aggravating factors of the type identified in Taueki that were available for the Judge to bring to account: extreme violence, attacking the head, the vulnerability of the victim and the serious injuries inflicted. In a case in which there are four aggravating factors of this type, the starting range is in band 3 of Taueki, between nine and 14 years imprisonment. 22 We consider that a starting point for sentence of 12 years imprisonment was well within range. (b) Mitigating factors (i) Mitigating factors other than guilty plea [33] Miller J allowed a credit of 10 per cent to reflect prior good character, but did not deduct anything further to reflect co-operation with the police, Mr Tuau s family circumstances, or his attempts at rehabilitation. Those findings were open to the Judge on the material before him. [34] While another sentencing Judge might have been more generous in fixing an appropriate credit for mitigating factors other than the guilty plea, it cannot be said that the Judge s assessment is insupportable. (ii) Guilty plea [35] When Mr Tuau attended at the Lower Hutt Police Station on 20 September 2011, he gave a full statement, by recorded interview. While uncertain about what had happened, he indicated a genuine desire to co-operate fully with the investigation. However, he did not plead guilty until 26 February 2013, about two weeks before the scheduled trial. The timing of the plea has relevance to the credit provided by the sentencing Judge for that component of the sentence At [32(a)]. At [34(c)] and [40].

10 [36] Having initially been the subject of a holding charge on or about 25 October 2011 Mr Tuau was charged with wounding Mr Bryden with intent to cause grievous bodily harm. Substantial disclosure followed. Disclosure of ESR reports was finalised on 23 February That analysis revealed that blood located on the shoes of Mr Tuau was likely to be that of Mr Bryden. [37] Counsel for Mr Tuau reviewed the evidence to be given by eyewitnesses. That did not clearly establish the identity of the person who was responsible for kicking Mr Bryden s head. At its highest, the evidence described a light brown skinned male who was wearing dark jeans, dark shoes and had a tattoo on his upper arm. The shoes that Mr Tuau had been wearing, which were found to have Mr Bryden s blood on them, were the strongest evidence against him. [38] On 1 March 2012, counsel for Mr Tuau requested a pre-committal sentencing indication. 23 An indication was given on 23 April 2012, in the District Court at Wellington. It was for an end sentence of imprisonment of five years and three months. Mr Tuau was given until 10 May 2012 to consider his position. [39] Before 10 May 2012 a further opinion was disclosed from ESR which indicated that the imprint on Mr Bryden s ear/face could not have come from Mr Tuau s shoes. That left an area of contention about whether Mr Tuau had been involved in kicking or stomping on Mr Bryden s head. At that stage the defence engaged its own expert, Dr Cropp, and indicated to the prosecution and Court that an independent review of the shoes needed to occur. [40] The need for such a review was mentioned to Judge Susan Thomas, in the District Court, at a hearing on 10 May Ms Hall, for Mr Tuau, attempted to persuade the Judge not to continue the committal process until the independent analysis had been obtained. The Judge was not prepared to delay the committal process but did record a Crown acknowledgement that if a plea of guilty were entered after that analysis, Mr Tuau would be entitled to a pre-committal credit for a 23 This was done in an attempt to secure the maximum credit for entry of a guilty plea: see Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

11 guilty plea, one of 25 per cent in terms of Hessell v R. 24 information: Judge Thomas minuted the [Sentencing indication] on basis [accused] stomper. ESR now apparently say stomping shoe is not [accused s]. [Accused] has no memory. Independent analysis of shoes sought by defence. No-one else charged re this incident. [Accused s] attendance excused today. Crown acknowledge that it has requested this matter proceed to committal but with record that [Accused] entitled to credit at this stage of process should matters be resolved after scientific analysis (ie pre committal credit). [41] After that hearing, Mr Tuau was committed to the High Court for trial. The trial was retained in the High Court, under the middlebanding procedures then in force. [42] Regrettably, there were considerable delays in obtaining the analysis. When submissions were made to Judge Thomas about the committal process, both the Crown and Ms Hall had anticipated that a report would be obtained promptly to enable Mr Tuau to assess his position. The delay that eventuated cannot be attributed to fault on the part of Mr Tuau, but it meant that Mr Tuau did not have all relevant information until 14 January [43] On 7 or 8 February 2013, during a pre-trial telephone conference with Ronald Young J, Ms Hall indicated Mr Tuau s desire to plead guilty. At that stage, Mr Tuau was on bail in Tokoroa. He was brought before the Court in Rotorua on 26 February 2013 for a plea to be entered. Following arraignment, Mr Tuau was convicted and remanded on bail for sentence in the High Court at Wellington on 8 April He was also given a first warning under the Three Strikes regime. [44] The circumstances, and amount, of credit that may be given for a guilty plea was discussed by the Supreme Court in Hessell v R. Relevantly, for present purposes: 24 At [75].

12 (a) The credit must reflect all circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea, and the strength of the prosecution case. Marshalling those factors will identify the extent of the true mitigatory effect of the plea. 25 (b) The reduction for a guilty plea component should not exceed 25 per cent. That limit reflects the fact that remorse is addressed separately. While the timing of the plea of guilty is always relevant, when the first opportunity to plead arises is something for particular inquiry, as opposed to formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea. 26 (c) There may be cases in which there are significant benefits from a plea that warrant a sentence reduction, even though the plea is made in close proximity to, or even during, a trial. 27 [45] We consider that the background against which the plea was entered demonstrates that this could be seen as one entered when Mr Tuau was fully informed of the case against him, rather than as one that was close in proximity to the trial. The outcome of the report undertaken by Dr Cropp could have been a reconsideration of the type of charge that Mr Tuau would face. While it was always reasonably clear that a guilty plea would be entered, 28 there was some question mark hanging over the nature of the charge to which that plea would relate. We also take account of the fact that while Miller J was informed of the circumstances in which Mr Tuau was committed for trial, he does not appear to have had the advantage of considering the clear notation made by Judge Thomas, at the time of committal At [74]. At [75]. At [76]. For example, his counsel never suggested that Mr Tuau would change his plea if the sentencing Judge were not to adopt the sentencing indication given in the District Court. See [40] above.

13 [46] In those circumstances, a more generous discount for the guilty plea and remorse could have been justified. The issue is whether any increase from the 15 per cent credit actually given is likely to affect the end sentence. In our view, it does not. The effect of the modest discount is largely offset by the generous discount given for provocation. 30 [47] For those reasons, we consider that the end sentence of nine years imprisonment chosen by Miller J should stand. (c) Minimum non-parole period [48] Miller J imposed a minimum period of imprisonment to reflect the need to denounce the offending, and to hold Mr Tuau accountable for it. He expressly disclaimed reliance on the need for such a sentence to act as a deterrent or to protect the community from Mr Tuau on his release from prison. That being so, the question arises whether a minimum non-parole period was necessary. Why was this not a case where release on parole should be left for the Parole Board to determine after one-third of the finite sentence had been served? [49] The answer to the question lies in the approach taken by this Court to minimum periods of imprisonment in R v Brown. 31 In that case, a young man, aged 21 years with no criminal history, had pleaded guilty to charges of attempted murder and arson. While suffering from a depressive episode, he struck his mother about the head with a hammer, lit a fire in the kitchen, and left the house. The victim s injuries were severe. She was left blind in one eye and rendered unable to walk independently or to speak. [50] The ability to impose a minimum term of imprisonment springs from s 86 of the Sentencing Act In its current form, s 86(1) and (2) provides: See [31] above. R v Brown [2002] 3 NZLR 670 (CA) at [28] [32]. See also R v Taueki [2005] 3 NZLR 372 (CA) at [134].

14 86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment (1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence. (2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes: (a) (b) (c) (d) holding the offender accountable for the harm done to the victim and the community by the offending: denouncing the conduct in which the offender was involved: deterring the offender or other persons from committing the same or a similar offence: protecting the community from the offender. [51] When Brown was decided, there was no reference to protection of the community from the offender. A minimum period could be imposed if the circumstances of the offence [were] sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002, a period of one-third of the finite sentence. 32 Notwithstanding the subsequent amendment to s 86, a minimum term may still be imposed (in an appropriate case) if directed only at denunciation, accountability and deterrence. 33 [52] Brown makes it clear that s 86 should not be regarded merely as a reserve measure to safeguard against possible misjudgements that the Parole Board may make. Rather, it is authority for the following propositions: (a) Section 86 can be used when the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient Sentencing Act 2002, s 86(2), in the form in which it stood prior to 7 July 2004 when the Sentencing Amendment Act 2004, s 7, came into force. Sentencing Act 2002, s 86(2)(a), (b) and (c), set out at [50] above. See also, as a recent illustration of this approach Ikamanu v R [2013] NZCA 510 at [72] and [75].

15 response in the eyes of the community, even though there may be no ongoing safety risk. 34 (b) It is a matter for judicial judgment whether a minimum non-parole period is required to meet any or all of the relevant sentencing goals set out in s 86(2) of the Sentencing Act. It is for the sentencing Judge to review the circumstances as a whole and to apply the statutory test. In particular, the central consideration must be culpability which necessarily is increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences. 35 (c) A minimum term is more likely to have application in cases of serious offending. Such crimes attract longer prison terms with the consequent wider gap between the appropriate nominal sentence and one-third in each case. 36 [53] We see no basis on which to disturb Miller J s conclusion that a minimum term of one-half of the finite sentence should be imposed. Ms Mildenhall was correct, in her oral submissions, when she said that there was a need to denounce Mr Tuau s offending by imposing a minimum period because the crime itself, aggravated by the factors to which we have already referred, was one that horrified the community and could not be marked adequately by imposing a sentence for which the offender would be eligible for release on parole after serving one-third. 37 Result [54] For those reasons, the appeal is dismissed. Solicitors: Crown Law Office, Wellington for Respondent R v Brown, above n 32, at [28]. At [32]. At [33]. Compare with [52] above.