Court of Appeal declines second appeal for man who permanently blinded his flatmate

Te Awanui Timutimu caused his flatmate permanent blindness in a frenzied attack at their home in Botany Downs.

WARNING: Graphic content

A man who had just had his left eye gouged by his flatmate in a frenzied attack looked at the wall with his right eye and thought “this is the last thing I will ever see” - and it was.

Moments later, his attacker, Te Awanui Timutimu, put his fingers into his right eye and repeated the act, leaving him permanently blind.

Now, Timutimu, who has already had time shaved off his original jail term of 10 years and 10 months, has attempted to bring a second appeal to have his sentence further reduced, claiming it is still manifestly excessive due to his ill mental health.

The Court of Appeal released its judgment on the papers earlier this month, detailing the offending.

It stated Martin Murray and Timutimu lived together at a property owned by Murray in Botany Downs, east Auckland. While they were not close friends, there were no issues between them and they got along “all right”, sometimes having dinner together in front of the TV.

However, one night Timutimu went into the lounge and asked Murray why he was tracking him.

He did not know what Timutimu was talking about. Timutimu, who is much bigger than Murray, tried to get him to fight.

“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,” the Court of Appeal decision, referring to Judge Karen Grau’s remarks made at sentencing, read.

Murray tried to protect himself but Timutimu put his fingers into his left eye and destroyed his vision.

Judge Grau said that must have been so painful and terrifying.

Timutimu pulled Murray off the couch and warned he was coming for his right eye next.

“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,” the decision stated, still referring to Judge Grau’s comments.

“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.”

Justice Geoffrey Venning reduced the man's sentence by 10 months on appeal.

Timutimu phoned 111 but the call disconnected. The police rang him back and he told them there had been an assault. They asked him if the offender was still there and Timutimu said “Yeah it’s me.” He also said something to Murray, expressing surprise he was still alive, and said “No one is coming for you.”

Murray managed to leave the house despite his injuries. The police found him outside covered in blood and stumbling around.

He suffered permanent blindness in both eyes, a fractured cheekbone, a large left orbital blowout fracture, tears and cuts to his face, chipped and broken teeth, and broken bones in his throat.

A threat to public safety

At sentencing in 2022, Judge Grau took a starting point of 12 years’ imprisonment before deducting 5% for his guilty plea, which was entered at trial, and a further 5% for the likelihood he was suffering paranoia at the time of the offending, resulting in a sentence of 10 years and 10 months.

Last year, Timutimu appealed his sentence in the High Court, primarily on the basis further recognition was required of his ill mental health. That court called for a report under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Dr Rishi Duggal, a consultant psychiatrist, concluded Timutimu’s presentation was consistent with a delusional disorder or a possible “differential diagnosis” of schizophrenia. Duggal believed there was a linkage between Timutimu’s mental state and the offending.

The High Court accepted this, and Justice Geoffrey Venning deducted a further 10 months and substituted the sentence with one of 10 years’ imprisonment.

But, later turning to the Court of Appeal, lawyer James Carruthers applied for leave for a second sentence appeal on behalf of Timutimu.

Carruthers contended the sentence “is still manifestly excessive” and said greater recognition should be afforded to Timutimu’s ill mental health.

He emphasised the total reduction for the late guilty plea and Timutimu’s disorder came to “a shade under 17%” of the starting point. Carruthers observed causative mental disorders could attract a significant sentencing discount and argued Timutimu’s offending should attract this approach.

The Court of Appeal has declined a second appeal against his sentence.

But the Court of Appeal’s decision stated that leave for a second sentence appeal may not be given unless it involved a matter of general or public importance, or a miscarriage of justice may have occurred.

The senior court was not persuaded this case met those requirements and declined the application.

While the court acknowledged Timutimu’s mental state likely contributed to the offending and that this diminished his culpability, the case involved a “striking instance” of a competing sentencing consideration - public protection.

“... 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.”

Timutimu has a history of violence, lacks empathy and remorse, and the offending in question was gravely serious, the court found.

In assessing him as mentally disordered, Duggal considered he posed a serious danger to others.

“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.”

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.