Jiaxin "Max" Tu in the dock at the Auckland High Court, during his sentencing in 2016. The Court of Appeal has declined an appeal against his sentence. Photo / Brett Phibbs
Jiaxin "Max" Tu in the dock at the Auckland High Court, during his sentencing in 2016. The Court of Appeal has declined an appeal against his sentence. Photo / Brett Phibbs
An autistic man who bludgeoned a love rival to death has failed in his attempt to appeal against his sentence of life imprisonment.
Jiaxin “Max” Tu was sentenced to life imprisonment with a 12-year minimum period of imprisonment (MPI) for the 2015 murder of 19-year-old Shane Hawe-Wilson in Panmure.
TheCourt of Appeal has today ruled his disorder and other mental health issues were appropriately considered during sentencing.
Hawe-Wilson was beaten by Tu with a hammer as he slept next to his partner, whose identity is suppressed.
The female teen was known to Tu - he had a love interest in her and felt threatened by Hawe-Wilson.
Remaining asleep during the killing, the teen awoke to find both Tu and Hawe-Wilson’s lifeless body in the bed with her. Tu was attempting to pull down her pants.
“It was him or me,” Tu later told police, before being admitted to a psychiatric clinic showing signs of psychosis.
At trial in 2016, Tu’s legal team explored a defence of insanity, which relied on testing whether or not autism spectrum disorder (ASD) qualified as a “disease of the mind” or “natural imbecility” - the legal tests that applied.
The court concluded ASD in and of itself didn’t qualify, but acute forms of autism, requiring a case-by-case assessment, could meet the test.
At trial, the jury heard from 30 witnesses. They considered and rejected the defence and found Tu guilty of murder.
The sentencing judge, Justice Christian Whata, considered a psychological report which detailed Tu’s previous mental health issues, which included a period where he perceived himself as the creator of the universe, suffering from schizoaffective disorder.
Shane Hawe-Wilson, 19, was murdered by Jiaxin Tu in 2015.
He applied the relevant legal tests, and while labelling them “antiquated and inapposite”, deemed that the requirement for a murder sentence to be one of life imprisonment, unless it would be “manifestly unjust” to do so, was met in this case.
“The evidence is tolerably clear that you were aware that killing was wrong, but that you had wrongly reasoned that you were justified in your actions,” Whata ruled.
But he also ruled that the case could not be described as a cold and calculated murder. Tu was not acting with the understanding and foresight of a mentally well person, and, subjectively assessed, his culpability was at the “lower end of the spectrum”.
He was sentenced to life imprisonment, and an MPI of 12 years was ordered.
Represented by Ron Mansfield KC, Tu appealed against his sentence.
Mansfield submitted that Tu’s mental illness alone should have displaced the presumption of life imprisonment, and that the aggravation of the offending and risk of reoffending are the result of his illness.
The Crown submitted in reply that it accepts Tu’s offending was influenced by both his mental health issues and ASD, but that is not a strong enough case to do away with an order of life imprisonment.
In a judgment by Justice Matthew Palmer released today, the court declined to amend the sentence, ruling the sentencing judge gave due consideration to Tu’s mental status and ASD diagnosis.
The court agreed with Justice Whata’s interpretation of the insanity test as “antiquated and inapposite”, but that the legislative direction to “denounce and deter” acts of murder was warranted in the case.
“The injustice of life imprisonment for Mr Tu was not clear or manifest, given these factors and the Judge’s conclusions about culpability. Those conclusions were based on the evidence and fairly open to him,” Palmer ruled.
“The Judge fairly considered the clinical consensus was that Mr Tu was affected by his mental health disorders at the time of his offending. Mr Tu knew what he was doing was wrong and still chose to kill, so his mental health did not absolve him of culpability.”
Had a 17-year MPI been ordered, the court would have “no doubt” that would be manifestly unjust, but a 12-year MPI was consistent with relevant case law.
