Timutimu v R [2024] NZCA 296 (4 July 2024)

Last Updated: 8 July 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA61/2024 [2024] NZCA 296

	BETWEEN	TE AWANUI TIMUTIMU Applicant
	AND	THE KING Respondent

Court:	Katz, Brewer and Downs JJ
Counsel:	J E L Carruthers for Applicant I A A Mara for Crown
Judgment: (On the papers)	4 July 2024 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave for a second appeal is declined.

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REASONS OF THE COURT

(Given by Downs J)

The proposed appeal

• [1] Te Awanui Timutimu pleaded guilty during trial to one charge of wounding with intent to cause grievous bodily harm.^[1] The offending permanently blinded the victim. Judge K Grau sentenced Mr Timutimu to a term of 10 years and 10 months’ imprisonment.^[2] On appeal to the High Court, Venning J reduced the sentence to 10 years’ imprisonment.^[3] Mr Timutimu seeks leave to bring a second sentence appeal to this Court.

Background

• [2] Judge Grau’s sentencing remarks conveniently summarise the facts:

[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.”

[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.

• [3] The Judge adopted a starting point of 12 years’ imprisonment. She deducted five percent for Mr Timutimu’s guilty plea (entered after the victim’s testimony) and a further five percent for the likelihood Mr Timutimu was suffering paranoia at the time of the offending.
• [4] Mr Timutimu appealed his sentence to the High Court, primarily on the basis further recognition was required of his ill mental health. That Court called for a report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
• [5] Dr Rishi Duggal, a consultant psychiatrist, concluded Mr Timutimu’s presentation was consistent with a delusional disorder or a possible “differential diagnosis” of schizophrenia. Dr Duggal believed there was linkage between Mr Timutimu’s mental state and the offending.
• [6] Venning J accepted that conclusion. He allowed the appeal, deducted a further 10 months, and substituted a term of 10 years’ imprisonment.

A précis of the case for a second (sentence) appeal

• [7] On behalf of Mr Timutimu, Mr Carruthers contends the sentence “is still manifestly excessive”. Mr Carruthers’ essential contention is that greater recognition should be afforded Mr Timutimu’s ill mental health. Mr Carruthers emphasises “the total reduction for the late guilty plea and Mr Timutimu’s disorder come to “a shade under 17 percent” of the starting point. Mr Carruthers observes causative mental disorders can attract a significant sentencing discount. He argues Mr Timutimu’s offending should attract this approach.

Analysis

• [8] Leave for a second sentence appeal may not be given unless the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred.^[4]
• [9] We are not persuaded this case meets the requirements for a second appeal.
• [10] First, the proposed appeal involves no matter of general or public importance, as underlying principle is settled.^[5] In fairness to Mr Carruthers, we did not understand him to argue otherwise.
• [11] Second, we are not persuaded a miscarriage of justice may have occurred. We acknowledge, as did Venning J, Mr Timutimu’s mental state likely contributed to the offending. Similarly, as with Venning J, we accept this feature diminishes Mr Timutimu’s culpability. However, this case involves a striking instance of a competing sentencing consideration — public protection — because of the danger posed by Mr Timutimu to others.^[6]
• [12] We begin this topic with this statement of principle from this Court’s Full Court decision in R v Taueki, which, of course, remains the guideline sentencing decision for offending of this nature:^[7]

[45] While mental illness or disorder of an offender may be a mitigating factor, this will not always be so: as this Court noted in R v Clarke (CA225/98, 3 September 1998), it is proper to treat any suggestion of diminished responsibility by reason of psychiatric or behavioural disorder with caution. Obsessiveness on the part of a former spouse or partner who assaults and badly injures his or her former spouse or partner may in some cases be attributable to a mental illness or disorder. Whether that is the case will be a matter for expert evidence. If it is not, it cannot be a mitigating factor. Even if it is, it should not necessarily be seen as a mitigating factor. Indeed, an obsessive disorder manifesting in violence may require a deterrent and protective, rather than a mitigated, response.

• [13] Similar sentiment is apparent in Berkland v R, a more recent (sentencing) decision of the Supreme Court:^[8]

[94] The relevance of an offender's background does not in any way reduce the importance of acknowledging, through sentences, the harm caused by an offender, and particularly the harm to victims. Indeed, provision is also made for the court to hear the perspectives of victims through victim impact statements. There are other sentencing purposes and principles such as deterrence, denunciation and community protection. Where offending is particularly serious these principles will usually be more powerfully engaged. Logically, there will come a point where background, even if it has contributed to the offending, can have no impact. But that will be a matter for careful consideration on the facts of the offence and the offender.

• [14] Or, as expressed by the authors of Adams on Criminal Law – Sentencing:^[9]

Likewise, where the offender’s mental or intellectual capacity is such as to pose a threat to public safety, the need to protect the public may be a prevailing consideration even though the offender’s condition may have operated to reduce culpability ...

• [15] We return to the facts. Mr Timutimu has a history of violence. The offending in question was gravely serious, having left the victim blind. In assessing Mr Timutimu as mentally disordered,^[10] Dr Duggal considers Mr Timutimu poses a serious danger to others. This conclusion is supported by tests Dr Duggal administered to assess Mr Timutimu’s risk of recidivism. Furthermore, Mr Timutimu lacks empathy and remorse. His insight in relation to his condition, which is untreated, is “very poor”. We acknowledge these aspects may be affected by Mr Timutimu’s condition, but this serves to emphasise our point. It follows we do not consider it seriously arguable that greater discount should have been afforded than that given by Venning J, or relatedly, that the 10-year term is manifestly excessive.

Result

• [16] The application for leave for a second appeal is declined.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] Crimes Act 1961, s 188(1). The maximum penalty is 14 years’ imprisonment.

^[2] R v Timutimu [2022] NZDC 14641.

^[3] Timutimu v R [2023] NZHC 329.

^[4] Criminal Procedure Act 2011, s 253(3).

^[5] See, for example, E (CA698/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]–[71].

^[6] Sentencing Act 2002, s 7(1)(g). See also R v Leitch [1998] 1 NZLR 420 (CA); and Bell v R [2017] NZCA 90 at [80].

^[7] R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [45].

^[8] Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 (footnotes omitted).

^[9] Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA7.06], citing R v Arama [1993] NZCA 638; (1993) 10 CRNZ 592 (CA) at 594.

^[10] Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2 definition of “mentally disordered”.