R v Tully [2016] NZHC 1133 (27 May 2016)

Last Updated: 27 May 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-009-008232 [2016] NZHC 1133

THE QUEEN

v

_{RUSSELL JOHN TULLY}

Hearing:	27 May 2016
Appearances:	Mr A McRae for the Crown Defendant appears in Person Mr P Shamy and Mr J Rapley as Counsel to Assist
Date:	27 May 2016

_{SENTENCING REMARKS OF MANDER J}

[1] Mr Tully you are for sentence this morning for the murders of Peggy Noble and Ms Susan Cleveland. Your are also for sentence for your attempt to take the life of Ms Kim Adams. There are two firearms charges relating to your unlawful possession of shotguns.

The facts

[2] On the morning of 1 September 2014 you entered the offices of Work and Income New Zealand (WINZ) in Ashburton. Your face was disguised by a balaclava and you were armed with a pump action shotgun.

[3] You moved deliberately and swiftly to the side of the reception counter in the public area. There you discharged the shotgun at point blank range at Mrs Noble

_{who sat behind the desk in her normal daily position, attending to customers.}

R v TULLY [2016] NZHC 1133 [27 May 2016]

[4] Ignoring members of the public in the reception area you made your way into the body of the open plan office. You discharged the weapon at Miss Adams who you saw across the room near an opposite wall. The lethal solid lead projectile barely missed her. Fortunately, Ms Adams was able to escape out a nearby door. Proceeding further into the office you shot another WINZ employee, Mrs Lindy Curtis who was attempting to hide under her desk. You ignored the young man whom she had been dealing with who was also under the desk.

[5] You proceeded to the rear area of the office and approached Ms Cleveland who was effectively trapped beside her desk in the far corner. Ms Cleveland pleaded for her life. You discharged the shotgun at her from short range. The pathologist’s evidence was that she was not mortally wounded. The CCTV footage shows you moving away from the area of Ms Cleveland’s desk after this first shot. However, you then returned, firing the shotgun twice to despatch your victim.

[6] You rapidly but calmly exited the office. Notwithstanding being bravely confronted outside by Mr Cooze who had witnessed your shooting of Mrs Noble, and the efforts of members of the public to follow you in their vehicles, you escaped as you had planned, on your bike to the Ashburton River bank.

[7] Later that evening you were found by police in the countryside hiding in a large hedge. You had disposed of the murder weapon but were in possession of another shotgun in a disassembled but operational state and many rounds of ammunition. The clothing and equipment found with you made it apparent you were determined to escape and to avoid apprehension.

[8] There was nothing random in your actions that morning. You had developed a sense of grievance over the way you perceived you had been unfairly treated by WINZ staff over the course of the preceding months. Concern about the nature of your interaction with staff culminated in you being trespassed from the Ashburton premises.

[9] You set upon a plan to deliberately target WINZ employees who had dealt with you and with whom you had developed some form of grudge. You entered the

WINZ office that morning with the intention of killing these people. You made the necessary preparations to carry out this plan, including arming yourself with a shotgun, disguising yourself and assembling your kit for the purpose of evading capture.

[10] You clearly shot Mrs Curtis. I interpret your acquittal on the charge of attempting to murder Mrs Curtis as resulting from the jury concluding that, in the absence of any prior material contact with her and because there was some evidence the shot was deliberately directed at the leg area, the jury could not be sure as to your intent at the time you fired the gun.

[11] However, I have no doubt had other WINZ staff not been able to immediately flee the building by accessing side exits, and had other staff been present who had previously been involved with you, but were fortunately absent that morning, there would likely have been more fatalities.

Victim impact statements

[12] I have read the victim impact statements from Ms Adams and the family of Mrs Noble and Ms Cleveland, in addition to statements from their friends and work colleagues. They and other people present that morning have understandably been profoundly affected. The views expressed in responsible and eloquent terms provide considerable insight into the impact of your offending.

[13] You have heard this morning statements read by colleagues and family of Mrs Noble and Ms Cleveland. It is to be hoped that you might have gained some appreciation of their grief and pain as a result of your actions, although regrettably from my observation it is not apparent that you much care.

[14] There is nothing I can add to their personal statements of grief to emphasise the destruction and loss they have experienced and the damage and dislocation you have caused except to acknowledge that grief and personal loss. The difficulties that must be faced and managed as a consequence of the trauma caused by your offending are stark.

[15] There is no sentence that I can impose which can mitigate that grief and harm. Certainly the sentence I am required to impose cannot in any way begin to compensate the victims, their families and colleagues for what you did. I am required in sentencing you to respond as the law requires on behalf of the community.

[16] Your offending has also had a wider impact not just on the victims’ colleagues and WINZ staff, but on thousands of people who as part of their daily working lives are required to deal with members of the public, frequently in situations which can be stressful and difficult.

Personal circumstances

[17] Mr Tully, you are 50 years of age. You had a normal upbringing in Ashburton. After completing your schooling you undertook a trade apprenticeship. You were married for a period, and admitted to the pre-sentence report writer to reacting badly when the relationship ended, abusing drugs and alcohol for a number of years. You had a number of jobs both here and in Australia as a diesel mechanic. It was reported that you never settled and would sometimes leave jobs after getting into altercations with employers or workmates.

[Interjection by Mr Tully]

[18] You became estranged from your family for many years.

[19] You have previous convictions for threatening to kill and presenting a firearm, although your relevant criminal history is limited to those offences which date back some 12 years prior to the present offending.

[20] After your last return from Australia in 2012 it appears that you went into something of a downward spiral. You developed a preoccupation with your skin and made some type of self-diagnosis of a terminal illness. You have admitted that during this period you were a regular user of methamphetamine, cannabis and synthetic cannabinoids and at times a heavy user of alcohol.

[21] Relevant to the present offending is an apparent inability to obtain accommodation. You were unwilling or unable to live with others and lobbied local private and government agencies to find a sole occupant residence. It was against that background that you came into contact with the Ashburton office of WINZ.

Sentencing purposes

[22] Mr Tully, in sentencing you today my objectives are threefold. Firstly, to protect the community. Secondly, to hold you accountable for the harm you have done. In more direct and old fashioned language “to punish you”. I do that on behalf of the community which in particular includes the victims and their families. Thirdly, I am to impose a sentence which on behalf of the community denounces what you have done.

[23] A strong feature of your offending was the targeting of public servants carrying out their duties, for want of a better expression, at the interface with the community. This requires me to impose a sentence which brings home to anyone potentially likeminded that a crime of this type and magnitude cannot be tolerated. The sentence must serve as a general deterrent in an attempt by the Court to afford protection to persons in occupations that render them more vulnerable to the

disgruntled and the disaffected.¹

Sentence

[24] On the charges of murder the sentence can only be one of life imprisonment. The issue for me is how long should the minimum period of imprisonment be. It needs to be emphasised that life imprisonment means just that. You will spend the rest of your life in prison until the Parole Board concludes that you can be released safely into the community. The effect of setting a minimum term of imprisonment is to impose a period which must elapse before the Parole Board can commence such a consideration.

[25] In undertaking this task I am required to compare your culpability with cases of murder that attract the normal statutory minimum of 10 years and which serves as

¹ R v Manu HC Auckland S30/99, 17 September 1999.

a benchmark for the sentencing exercise. Taking into account aggravating and mitigating factors, I am then required to decide whether an additional minimum period is required to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.²

[26] In following that process I am also required to give effect to the legislative policy of the Sentencing Act which in your case Mr Tully means the minimum period of imprisonment which must be imposed is one of at least 17 years.³ You have been convicted of two murders, the commission of which I am sure were calculated and planned. I also consider the circumstances of those murders, effectively cold blooded executions in respect of which your victims had no chance, were particularly callous and brutal.

[27] There can be no suggestion the imposition of a 17 year term would be manifestly unjust. Indeed the identified factors I have already mentioned when combined with other aggravating features, which I note I find established beyond reasonable doubt on the trial evidence, collectively point to a starting point substantially higher than 17 years.

[28] The murders of Mrs Noble and Ms Cleveland were part of your wider plan to kill other WINZ officers. Your attempted murder of Miss Adams is the most obvious evidence of such an objective. Your offending was a targeted lethal attack on individual public servants simply because they were doing their jobs. You armed yourself that morning and went to the WINZ office for the specific purpose of using the shotgun to take people’s lives.

[29] The loss and harm you have caused is incalculable. Two entirely innocent women are dead. The distress and grief caused to their family members, friends and colleagues is particularly acute given the circumstances of their deaths, and that anguish has been felt widely across the community. This type of crime is rare in

_{New Zealand.}

² _{Sentencing Act 2002, s 103(2). R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [49].}

³ Sentencing Act 2002, s 104; R v Robertson [2016] NZCA 99.

[30] You knew that Monday morning that your intended victims would be attending to their usual duties at their workstations at the WINZ office, quite unprepared and unsuspecting of such an attack. There was little if anything to protect them from your murderous actions. Being familiar with the open plan office you knew that was the case, it was part of your plan, and so it proved. In that sense Mrs Noble and Ms Cleveland were vulnerable and defenceless, as indeed was Ms Adams.

[31] Your offending was premeditated. You had sourced firearms and ammunition and you disguised yourself. It is clear from the purposeful and methodical way you set about your task and made your escape that you had planned, carefully planned, the attack. Other indicators include the disposal of your personal property in the days leading up to the incident, and the preparation of your equipment and clothing to avoid apprehension using a planned escape route. This included the placement of cell phones attributable to you on the back of heavy transport vehicles, no doubt to confuse the police as to your whereabouts.

[32] Any suggestion that some element of provocation arises because your motivation was borne out of frustration at the position in which you found yourself and the perception of your treatment by those at WINZ is without merit. Leaving to one side that such motivation is incapable of mitigating your lethal actions, from the evidence adduced at trial it is apparent your view was quite wrong and that what you did can more likely be attributed to a deep-seated sense of entitlement on your part rather than because of any unreasonableness in the approach of WINZ staff. Insofar as the unusual features of your personality or mental makeup might support some form of diminished responsibility, I will discuss that aspect presently.

[33] I turn now to whether there are personal circumstances that may influence the length of the minimum term. In terms of your mental health there have been previous diagnoses of brief drug-induced psychosis in Australia in 2005 and 2007 in the context of unknown substance abuse. There has however never been a diagnosis of any enduring mental disorder, although you do have a persistent somatic preoccupation with your skin and with the state of your health in general. There is a suggestion that a change in your personality may be linked with an alleged head

injury in 2002, although that has never been confirmed. You did not require hospitalisation on that occasion, nor specialist neurological assessment. A Mental Health Service Assessment prepared some months after your 2002 offending noted there was no evidence of any mental illness, although you were described as “quite black and white” in your thinking, expressing anger and frustration on this occasion towards the police.

[34] Impaired functioning and mental health are matters which can be taken into account at sentencing as relevant factors potentially reducing culpability. You have a history of interpersonal conflict both at work and towards professional services and there is a persistent account of you having a grandiose sense of entitlement with features of both a narcissistic and anti-social personality. A more specific personality disorder has not been diagnosed. You have some limited mental health issues and unusual personality traits, the latter of which are likely associated with your offending, but there is no foundation for a finding of mental illness or impairment which would diminish your culpability, either legally or morally.

[35] You have considerable intelligence and I do not consider the nature of any personality disturbance that you have impacted on your understanding of the gravity of what you set out to do, or in any way caused you to be confused or to misapprehend the wrongfulness of your actions. The cluster of anti-social and narcissistic personality traits no doubt were a contributing factor in your offending but I do not consider them capable of mitigating the length of the minimum period of imprisonment; to the contrary, your innate personality traits underline the risk you

present to the community.⁴

[36] The pre-sentence report records that you are still maintaining a strong sense of injustice about your treatment both in the community and during the period of your custodial remand about which I am well aware. You are said to harbour sentiments and attitudes that are not conducive to rehabilitation. Your strong sense of entitlement leads to deeply entrenched views of grievance which as this offending

_{patently demonstrates is capable of generating murderous thoughts and actions. You}

⁴ E (CA689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411 at [68]- [70] and [78]; R v Wright [2001] 3 NZLA 22 at

[22]; Malik v R [2015] NZCA 597; R v Finau [2003] NZCA 129; [2003] 20 CRNZ 333 at [13] and [24].

should be considered as presenting a high risk of harm to others and as a person who appears to have no regard for the sanctity of human life.

[37] You have given no indications of remorse. The absence of responsibility for your offending means the prognosis for rehabilitation is poor. This is likely to be a manifestation of your personality traits. I observe the absence of remorse is to be treated as the absence of a mitigating factor and not an aggravating feature.

[38] As I have noted, you have previous convictions for threatening to kill and presenting a firearm – offences which have some relevance, although they are obviously of an entirely different order to the present offending. They do not result in any uplift but prevent any discount for any suggestion of prior good character.

[39] The Sentencing Act recognises that community protection may justify a longer minimum period.⁵ Notwithstanding that an offender will not be released unless and until the Parole Board considers the re-offending risk to have reduced to an acceptable level, it will still be the Court’s responsibility to make its own assessment when the circumstances require it. I consider this to be such a case.⁶

[40] Mr Tully I consider you to be a very dangerous person, clearly capable of very violent actions. Because of the high risk of harm you present there is a need for community protection which should be reflected in the length of the minimum term. I have already specifically observed the need for the length of the minimum period of imprisonment to adequately denounce your actions and in particular for the sentence to provide deterrence.

[41] Taking all these considerations into account I consider a total minimum period of imprisonment of 27 years is justified. This means you will not be eligible to be considered for parole until the age of 77, but that is unavoidable.

[42] The Crown has submitted a minimum period of 33 years, but I am constrained by past authorities and the need for consistency in sentencing. I have

_{compared the length of the minimum terms with other sentencing decisions to ensure}

⁵ _{Sentencing Act 2002, s 103.}

⁶ Robertson v R [2016] NZCA 99 at [84].

reasonable consistency with other cases. Comparing the facts of other cases and the circumstances of other offenders, particularly where the offending involves very grave crimes such as these, is a difficult exercise. The features of individual cases will invariably be different, if not unique, however I am satisfied that having regard to the various factors present in your case, a 27 year minimum parole period aligns

with other broadly comparable sentencing authorities.⁷

Conclusion

[43] Accordingly, on each of the charges of murdering Peggy Noble and Susan Cleveland you are sentenced to life imprisonment. I impose a minimum term of imprisonment of 27 years.

[44] On the charge of attempting to murder Kim Adams you are sentenced to

11 years imprisonment.

[45] On each of the two charges of possession of the shotguns you are sentenced to 4 years imprisonment.

[46] All sentences are to be served concurrently.

Strike Warning

[47] Finally, the three strikes legislation applies to you. This is your first strike. Although it might appear an empty exercise, I am required to give you a formal warning. If you are released and ever commit a further serious violent offence you

_{will serve the resulting sentence without parole. If ever convicted of murder again}

⁷ Bell v R CA 80/03, 7 August 2003; Howse v R [2003] NZCA 178; [2003] 3 NZLR 767; R v Reid [2009] NZCA 281; R v Somerville, HC Christchurch CRI-2009-009-014005, 29 January 2010; R v Reihana HC Rotorua CRI-2005-070-007328, 29 June 2007; R v McLaughlin [2013] NZHC 2625; R v Konia HC Palmerston North, CRI-2005-054-002095, 30 June 2006; R v Ogle HC Wellington, CRI-2009-091-002763, 16 October 2009; R v Maheno [2013] NZHC 2430; R v McKenzie [2009] NZCA 169; R v Samoa & Johansson & Ors HC Auckland TO23161, 19 February 2004; R v Samoa and Johansson CA85/04 CA138/04, 4 August 2004; R v Cui CA 333/05, 20 June

2006; R v Frost HC Greymouth CRI-2010-018-000344, 3 October 2011; R v Lundy (2002) 19

CRNZ 574 (CA); Malik v R [2015] NZCA 597; R v Burton HC Wellington CRI-2007-085-736, 3

April 2007; Robertson v R [2016] NZCA 99; R v Dixon HC Auckland CRI-2003-092-026923, 27

May 2005; R v Tarapata [2015] NZHC 1594.

you will certainly be sentenced to life without parole. The full terms of this warning will be supplied to you in writing.

[48] There will be an order for the forfeiture and destruction of the shotguns and ammunition.⁸

[49] You may stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch

Gresson Dorman & Co, Timaru

J Rapley and P Shamy, Bridgeside Chambers, Christchurch

Copy to:

R J Tully, Christchurch

⁸ Arms Act 1983, s 69.