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Presumption of life imprisonment for murder is hard to displace

21 Apr 2023

| Author: Hannah Hellyer

Appeal against sentence – murder – Sentencing Act 2002, ss 102 to 104 – manifestly unjust exception – mental health – diminished capacity

Tu v R [2023] NZCA 53 (Katz, Wylie and Palmer JJ)

Following a trial by jury, Jiaxin Tu was convicted of the murder of Shane Hawe-Wilson. For a number of years, Tu was fixated on C, who was in a relationship with Hawe-Wilson. Tu struck Hawe-Wilson in the back of the head multiple times when he and C were asleep in bed.

Tu had a complex history of severe mental illness. He was diagnosed with serious mental health disorders, including schizo-affective disorder and Autism Spectrum Disorder (ASD).

He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 12 years.

Following an unsuccessful appeal against conviction, Tu advanced an appeal against the sentence on the ground that his mental disorders make the presumption of life imprisonment manifestly unjust.

The Court of Appeal referred to a number of cases concerning the manifest injustice exceptions contained in ss 102 to 104 of the Sentencing Act 2002, including the recent decisions in Thompson v R [2020] NZCA 355, R v Van Hemert [2021] NZCA 261, and R v Smith [2019] NZHC 1910.

Tu submitted mental illness alone should have displaced the presumption of life imprisonment. This submission was based upon matters concerning his culpability and his risk of reoffending and of harm.

It was submitted a life sentence does not address Tu’s rehabilitative needs, his risk is intrinsically linked to treatment and he risks being indefinitely imprisoned under a life sentence as he will continue to be assessed as posing a future risk by the Parole Board unless treated.

The court noted that courts must be careful about identifying aspects of offending as aggravating if they derive solely from an offender’s mental illness. However, it did not accept the submission that Tu’s mental health, as a sole consideration, should displace the presumption of life imprisonment.

While Tu clearly suffered from schizophrenia and ASD, which contributed in some extent to the offending, it did not moderate his culpability completely or sufficiently.

The court noted the requisite jury finding that Tu could appreciate the wrongfulness of his actions and found Whata J squarely addressed Tu’s mental state throughout the trial and at sentencing, where his mental health disorders were accepted to be significant mitigating factors in terms of sentencing and for the purposes of s 104.

Furthermore, Whata J did not place undue weight on Tu’s risk. Whether or not it derives from the nature of his mental health, it is a relevant sentencing consideration.

Tu also submitted that whether s 104 was properly engaged, the MPI starting point should have been 15 years, with an end MPI of around 10 years, after a discount of 30% for mental illness.

The court found Whata J was correct to identify Hawe-Wilson as vulnerable. In its view, it was not clear that the evidence supported the proposition that Tu’s mental state meant he could not appreciate this. It was the objective vulnerability of Hawe-Wilson being asleep that was relevant.

The court also found that Whata J was correct to identify that Tu’s mental health disorders were a decisive factor mitigating against the full application of s 104.

The court considered that the 12-year MPI imposed was appropriate.

Tu also submitted that a “hybrid” order under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA) was required and appropriate.

The court observed that in general, where there is evidence that such an option would be in the interests of the rehabilitation of the offender, and consistent with the interests of the public in terms of the risk of reoffending, this may be consistent with the purposes and principles of sentencing.

Held: Appeal dismissed. The sentencing judge had carefully assessed whether Jiaxin Tu’s mental disorders, including his ASD, made a sentence of life imprisonment manifestly unjust. The judge took into account the clinical consensus that Tu was affected by his mental health disorders at the time of his offending.  But Tu knew what he was doing was wrong and still chose to kill, so his mental health issues did not absolve him of culpability.

The risk that Tu posed to others was also relevant to sentencing. The judge was correct to find that Tu’s mental health issues, including his ASD, were insufficient to displace the presumption of life imprisonment for murder.

Hannah Hellyer is an Auckland criminal defence barrister and member of the ADLS Criminal Law Committee and Parole Law Committee 

Tu v R [2023] NZCA 53 (1)

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