Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39; (2012) 26 CRNZ 106 (13 December 2012)

Last Updated: 26 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/2012 [2012] NZCA 584

BETWEEN TAMAOHO NUKU Appellant

AND THE QUEEN Respondent

Hearing: 18 July 2012

Court: Glazebrook, Ellen France and White JJ

Counsel: S G Vidal for Appellant S B Edwards and B C L Charmley for Respondent

Judgment: 27 July 2012

Reasons: 13 December 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

	Para No
Introduction	[1]
New Zealand assault provisions	[5]
Relevant judgments	[7]
R v Taueki	[10]
R v Harris	[14]
Submissions of the parties	[19]
The Crown’s submissions	[19]
Mr Nuku’s submissions	[24]
Discussion of Taueki and Harris	[28]
Our approach	[37]
Starting date for guidance in this judgment	[44]
Mr Nuku’s appeal	[46]
Background	[47]
Sentencing remarks	[54]
Starting point	[61]
Mr Nuku’s submissions	[61]
Our assessment	[65]
Personal aggravating features	[69]
Mr Nuku’s submissions	[69]
Our assessment	[70]
Remorse	[71]
Mr Nuku’s submissions	[71]
Our assessment	[72]
Result	[75]
Appendix: Extracts from Taueki

Introduction

[1] Mr Nuku pleaded guilty to one count of wounding with intent to injure and one count of escaping lawful custody pursuant to ss 188(2) and 120(1)(c) of the Crimes Act 1961 respectively. On 27 January 2012, Judge Phillips sentenced Mr Nuku to three years’ imprisonment.^[1] Mr Nuku appeals against that sentence.
[2] The matter was set down before the Permanent Court so that the Court could consider the application of the sentencing guidelines in R v Taueki to offences involving the infliction of violence other than offending under s 188(1) of the Crimes Act,^[2] dealing with causing grievous bodily harm (GBH) with intent to cause GBH.^[3]
[3] On 27 July 2012, we dismissed Mr Nuku’s appeal with reasons to follow.^[4] We now provide those reasons.
[4] We deal first with the sentencing guidelines issue and then consider Mr Nuku’s appeal. We record our gratitude to both counsel for their very helpful submissions.

New Zealand assault provisions

[5] In New Zealand there are a large number of different offence provisions for assault. The maximum penalties for those offences vary from one to 14 years’ imprisonment. The table set out below summarises those offence provisions:

Section	Description	Maximum Penalty
s 196	Common assault	1 year
s 194(a) s 194(b)	Assault on a child Male assaults female	2 years 2 years
s 193	Assault with intent to injure	3 years
s 192	Aggravated assault	3 years
s 189(2) s 189(2)	Injuring with intent to injure Injuring with reckless disregard for the safety of others	5 years 5 years
s 191(2)	Aggravated injury	7 years
s 188(2) s 188(2)	Wounding, maiming, disfiguring or causing GBH with intent to injure Wounding, maiming, disfiguring or causing GBH with reckless disregard for the safety of others	7 years 7 years
s 189(1)	Injuring with intent to cause GBH	10 years
s 188(1)	Wounding, maiming, disfiguring or causing GBH with intent to cause GBH	14 years
s 191(1)	Aggravated wounding	14 years

[6] Injury is actual bodily harm that causes hurt or injury calculated to interfere with the health or comfort of the victim.^[5] A wound requires proof of the breaking of the skin and a flow of blood either external or internal.^[6] GBH means really serious harm.^[7]

Relevant judgments

[7] In Taueki, this Court said it was anticipated that the guidelines set out in that case would be able to be applied, by analogy, to s 191(1) offences^[8] and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence and the maximum penalty provided for it.^[9]
[8] This Court subsequently cautioned against adopting a mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty.^[10] In R v D (CA253/08) the Court said:^[11]

While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].

[9] There is another relevant judgment: R v Harris,^[12] where this Court considered the application of the Taueki guidelines to sentencing for the offence of injuring with intent to injure.^[13] We summarise both Taueki and Harris below.

R v Taueki

[10] The sentencing guidelines in Taueki are primarily applicable to offences under s 188(1) of the Crimes Act, which are referred to throughout the judgment as “GBH offences”. The Court said that GBH offences can vary substantially in seriousness in terms of both the level of culpability of the offender and the extent of the consequences for the victim. However, any GBH offence involves very serious offending, as is reflected in the 14 year maximum term. An offender will be convicted only if he or she has acted with an intention of inflicting really serious harm on the victim and has actually caused harm of that gravity, or wounded, maimed or disfigured the victim.^[14]
[11] The judgment in Taueki outlines a number of features that contribute to the seriousness of the conduct and criminality involved in a GBH offence, although the Court emphasised the need for sentencing judges to evaluate the seriousness of each particular factor and the combination of factors present in a particular case, in order to determine the appropriate sentencing band and starting point.^[15] For ease of reference, [31] of Taueki, dealing with aggravating factors, is set out in the Appendix to this judgment.
[12] Three sentencing bands (ranges of starting points) are set out in the judgment as follows:^[16]

(a) Band one: three to six years

This band is appropriate for offending involving violence at the lower end of the spectrum of GBH offences, which do not involve extreme or life-threatening violence. Where none of the aggravating features outlined are present, a starting point at the bottom end of band one will normally be appropriate. The presence of one or more of those features requires a higher starting point.

(b) Band two: five to 10 years

This band is appropriate for GBH offending that features two or three of the aggravating features outlined.

(c) Band three: nine to 14 years

This band encompasses serious offending that has three or more of the aggravating features present and where the combination of those features is particularly grave.

[13] While the judgment gives some examples of the types of offending that will fall within each band, the Court reiterated the need for the suggested bands and starting points to be applied flexibly.^[17] The principal objective of the guidelines is greater consistency in approach and, as a consequence, sentencing levels, by providing guidance as to the manner in which the sentencing discretion should be exercised.^[18]

R v Harris

[14] In Harris, this Court rejected a submission from the appellant’s counsel that involved mathematically adjusting the Taueki sentencing bands to reflect the lesser maximum penalty under s 189(2) for the offence of injuring with intent to injure, referring to previous cautions against such an approach. It also identified two problems with applying Taueki to less serious violent offending. First, some of the aggravating features identified in Taueki are likely to be relevant only to GBH offending. Second, because of the wide range of offences that can be alleged in relation to moderately serious crimes of violence and the unexacting tests for what constitutes an injury, there is a good deal of scope for prosecutorial discretion and the possibility of overcharging. For these reasons, simply shrinking the bands and slavishly applying the aggravating and mitigating features identified in Taueki may create difficulties for sentencing judges.^[19]
[15] The Court then considered the nature of the offence of injuring with intent to injure and said that such an offence involves establishing both intent to cause injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. The Court said that cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can therefore fairly be sentenced primarily by reference to the seriousness of the injury suffered (an approach the Court considered was broadly consistent with Taueki).^[20]
[16] The Court therefore set bands and starting point sentences (before allowance for personal aggravating and mitigating factors) on the basis of the level of injury inflicted.^[21]
[17] The Court went on to say that, beyond the extent of the injury, the appropriate starting point will depend upon the effect that any additional aggravating and mitigating features (as identified in Taueki and in ss 8 and 9 of the Sentencing Act 2002) have on the seriousness of the conduct and the criminality involved.^[22]
[18] While Harris did not purport to be a guideline judgment, its use in sentencing for s 189(2) offending is widespread and it has been referred to with approval (or at least without criticism) in other judgments of this Court.^[23]

Submissions of the parties

The Crown’s submissions

[19] The Crown submits that the offence of injuring with intent to injure dealt with in Harris should be considered separately from the other offences that fall below the GBH offences identified in Taueki, namely those under s 189(1) (injuring with intent to cause GBH), s 188(2) (wounding with intent to injure or with reckless disregard) and s 191(2) (aggravated injury).
[20] The Crown notes that Parliament’s most recent indication of what constitutes serious violence is contained in the so-called three strikes provisions of the Sentencing Act, which came into force on 1 June 2010. The violent offences included in the list of offences covered by the regime all carry a maximum penalty of seven years’ imprisonment or more.^[24] A “serious violent offence” is also defined in s 2(1) of the Crimes Act (as an element of the offence of participation in an organised criminal group under s 98A) as an offence punishable by imprisonment for a term of seven years or more, where the conduct involved meets certain other criteria.^[25]
[21] The offence addressed in Harris of injuring with intent to injure is thus not, by definition, a serious violent offence. Nor is it a qualifying violent offence for preventive detention purposes under s 87 of the Sentencing Act.^[26] This distinguishes it from the other offences in ss 188, 189 and 191 and, in the Crown’s submission, supports the view that it should be considered separately from them in terms of sentencing guidance.
[22] The Crown accepts that, as noted by this Court in Harris,^[27] there is potential for inconsistency in the exercise of the prosecutorial discretion in selecting charges in this area and a possibility of overcharging. The Crown submits that there is scope within the Taueki methodology of overlapping bands and the ability to depart from guidelines to remedy a situation where the sentencing judge considers the offending “involves culpability at a level which may have been better reflected in a lesser charge”.^[28]
[23] It submits that the Taueki guidelines should be adjusted down (to reflect the lower maximum penalties) for offences other than those covered in Harris, rather than Harris adjusted upwards.

Mr Nuku’s submissions

[24] Ms Vidal submits that the factual requirements to satisfy the elements of the different assault provisions can be quite similar or even the same. This means at times that the selection of the charge is entirely dependent upon the exercise of prosecutorial discretion. The desire to achieve consistency in sentencing by the provision of a structured banding of sentences based on a maximum penalty can unwittingly result in the imposition of excessive sentences.
[25] For example, when offences that involve intent to injure are considered, the same conduct can be present in offences under s 188(2) and s 189(2), but there is a two year difference in the maximum penalties for the offences. Ms Vidal submits that separate banding for these two offence provisions, where the banding is determined by the maximum penalty, would give rise to a real risk of inconsistent penalties being imposed for similar conduct. The courts have consequently emphasised that the focus of sentencing must be on the particular conduct and the culpability of the offender.
[26] Ms Vidal submits that the grouping of particular offences on the basis of intent is a sound basis upon which to assess the adaptation of the Taueki guidelines to other violent offending. This is because Parliament has primarily graduated the maximum penalties (and so, apparently, the assessment of the seriousness of the offending) by reference to the specific intent of the offender, with the harm caused by the offending being a secondary factor to the determination of seriousness.
[27] Ms Vidal submits that the bands specified in Harris are appropriate for a guideline decision relating to s 188(2) and s 189(2) offending, save for an increase at the top end of band three for s 188(2) offences, or alternatively the creation of a fourth band to cover excessive harm.

Discussion of Taueki and Harris

[28] We accept Ms Vidal’s submission that there is a crucial conceptual difference between the offences to which the Taueki guidelines apply (either directly or by analogy)^[29] and the violent offending provisions under ss 189(2), 191(2) and 188(2). This conceptual difference relates to intent.
[29] As stated in Taueki, GBH offences involve very serious offending.^[30] This is because an offender will only be convicted if he or she has acted with an intention of inflicting really serious harm on the victim, and has actually caused harm of that gravity or has wounded, maimed or disfigured the victim. This may have consequences for one of the aggravating factors identified in Taueki: that is, the seriousness of injury to the victim.^[31]
[30] The Court in Taueki rejected a submission that the assessment of criminality should focus on the conduct of the attacker and not on the consequences for the victim. While accepting that it can sometimes be a matter of luck how bad the resulting injuries are, the Court said that in the case of GBH offences where the intent is to cause serious harm, if in fact such harm is caused then the offender should face the consequences of his or her actions. This reasoning may not apply to the same degree to offences where the intent is to cause only injury, as the resulting level of harm to the victim may be greater than what the offender contemplated.^[32]
[31] There is another aspect of Taueki that does not sit easily with offences where the intent is merely to cause injury. This is the comment that, as noted in Taueki, almost all GBH offences will involve a high degree of criminality and significant injury to the victim. The Court said that it will only be in exceptional cases that a starting point of less than three years’ imprisonment will be appropriate and this is likely to be only when a sentencing judge considers the offending to involve culpability at a level that may have been better reflected in a lesser charge.^[33]
[32] The Court in Taueki did not refer to non-custodial sentences as possible starting points, understandably given its comments on the seriousness of GBH offences. However, there will be cases in offending falling under s 189(2), s 188(2) and s 191(2) where a non-custodial starting point is appropriate, as this Court recognised in Harris with regard to offending under s 189(2).^[34]
[33] On the other hand, we consider that there are difficulties with the approach in Harris. We accept that the actual injury inflicted is usually a good proxy for assessing what was intended, but this is not always so. Harris therefore causes difficulties where there is not congruence between intent and injury.^[35] Further, although Harris made it clear that the presence of aggravating and mitigating factors of the offending should be taken into account,^[36] the case gave little guidance on how that was to be done and in practice there has been a trend for sentencing judges to take into account only the harm inflicted.
[34] We prefer an approach where aggravating and mitigating factors of the offending are built into the banding decision, rather than considered afterwards as the approach in Harris would suggest. The former approach is consistent with other modern guideline judgments given by this Court.^[37]
[35] We also prefer not to set starting point bands by reference to the seriousness of injury to the victim, as this Court did in Harris. We consider that the seriousness of the offending should be assessed by weighing all of the relevant aggravating factors (which is consistent with Taueki).
[36] The seriousness of the injury can be taken into account as an aggravating factor, but care should be taken where there is significant disparity between the extent of the injury and the level of violence.^[38] If serious injury occurs that was not a foreseeable consequence of the offender’s actions, then this may affect the weight that should be given to the injury as an aggravating factor.

Our approach

[37] We consider therefore that we should replace Harris with the following guidance, applicable to offending under ss 189(2), 188(2) and 191(2) where the offending involves intent to injure.^[39] We see this judgment as providing guidance on how Taueki can be adapted to apply to the lesser charges, rather than being a guideline judgment in its own right.
[38] The following bands apply:

• (a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.
• (b) Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
• (c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[39] We note the following points. The highest band provides for a possible starting point of the maximum sentence to reflect s 8(c) and (d) of the Sentencing Act.^[40] Further, although the guidance in this judgment covers offences with both a five year and a seven year maximum sentence, sentencing judges should keep in mind that Parliament has mandated that offences with a seven year maximum sentence are generally to be regarded as being more serious than those with a five year maximum.
[40] We have taken the approach of having overlapping bands, as in Taueki, to maintain a degree of flexibility and to recognise that sentencing is an evaluative exercise, rather than a formulaic one.^[41]
[41] The aggravating factors set out at [31] of Taueki will be applicable.^[42] We note in particular the comment in Taueki that the extent of the violence will have an obvious impact on the level of criminality.^[43] We also refer to our comments at [36] above on how to take into account the level of injury to the victim. Also applicable to cases covered by this judgment are the comments in Taueki concerning mitiga[44]ng factors⁴⁴ and those factors that do not reduce the seriousness o[45]offending.⁴⁵ For ease of reference, [31]–[33] of Taueki are set out in the Appendix to this judgment.
[42] We emphasise that a sentencing judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor.^[46] One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present but only in a mild form, that may result in the offending being placed in a lower band. The level of seriousness of the aggravating factors will also, of course, affect where an offence is positioned within a band.
[43] Finally, we emphasise that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a particular case, the sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.

Starting date for guidance in this judgment

[44] The approach set out in this judgment should be applied to all sentencing for offences under ss 189(2), 188(2) and 191(2) taking place from the day after the date on which this judgment is delivered.^[47]
[45] The exceptions are cases where sentence indications have been given and relied on, and where appeals are filed in respect of sentences imposed prior to the release of this judgment. As this Court noted in R v AM, such cases should be dealt with as follows:^[48]

• (a) In cases where sentencing indications have been given and relied on by defendants, sentencing judges should adhere to those indications rather than follow the guidelines set out in this judgment, unless the guidelines yield a more favourable result than the indication.
• (b) Where an appeal is filed against a sentence imposed up to the date of this judgment, this Court will continue to apply the law as it stood prior to the release of this judgment.

Mr Nuku’s appeal

[46] Mr Nuku appeals against his sentence on the ground that it is manifestly excessive. He submits that the starting point was too high, the uplift for aggravating features too great and that the Judge erred in failing to impose a discrete discount for remorse. In response, the Crown submits that the sentence was within the available range and cannot be described as manifestly excessive.

Background

[47] The victim of Mr Nuku’s offending is his former partner, the mother of his young child. Their relationship had been a difficult one and, at the time of the offending in question, they were living apart. The victim had tried to separate from Mr Nuku and several days later, on 14 April 2011, he was arrested for threatening her father (in connection with the separation from the victim). Mr Nuku appeared in the Invercargill District Court the following day, and was convicted and ordered to come up for sentence if called upon within nine months.
[48] In the early hours of the next morning, 16 April 2011, Mr Nuku turned up at the victim’s address. A female friend was staying with her for support. Both woke up as Mr Nuku unsuccessfully tried to gain entry through the front and back doors, both of which were locked. The victim looked at her cell phone and noticed that she had received four text messages from Mr Nuku. Fearing for her safety, she called the police.
[49] Mr Nuku climbed onto an external heat pump and gained entry to the house through a window approximately three metres above the ground. He went straight to the bedroom where both women were in bed. He turned on the light and aggressively asked why they had not let him in. They repeatedly told him to leave.
[50] Mr Nuku grabbed the victim’s cell phone, looked at the screen and saw that she had rung the police. He then pulled the blankets off the victim, grabbed her left arm and leg and pulled her onto the floor. The victim’s friend tried to stop Mr Nuku, but to no avail. Mr Nuku kicked the victim about the head, body and legs as she tried to shield her face with her arms. Again the victim’s friend tried to protect her by getting between her and Mr Nuku. There were at least four kicks to the victim’s head and face area. Upon seeing the victim bleeding, Mr Nuku said “what have I done?”
[51] The victim and her friend managed to get to the bathroom and locked themselves in. Mr Nuku pursued them and told them that if they did not open the door on the count of three, he would kick it in. He carried out his threat, kicking in the door and breaking the lock in the process. It was submitted before us that Mr Nuku had wanted to get into the bathroom to help the victim.
[52] The victim sustained bruising and swelling to her head, face and leg. She was taken to hospital where she had a wound on her head stapled closed.
[53] The police arrived just after Mr Nuku had kicked the bathroom door in. Mr Nuku greeted the police at the front door but, on being told he was under arrest, ran away. He was not able to be located that evening. When later interviewed by the police, Mr Nuku said he could remember going to the victim’s house and knocking on the doors, and running away from the police. He said he could not remember what happened in between, although he did recall that he had hit the victim.

Sentencing remarks

[54] Judge Phillips began his sentencing remarks by characterising Mr Nuku’s actions on the night in question as “an extremely violent episode” and saying he could understand the victim’s concern that she was going to be seriously injured.^[49]
[55] Judge Phillips characterised the victim’s injuries as moderate and the offending as domestic violence involving kicking to the head. The Judge considered that the use of feet, even with soft shoes only, was “as good as using a weapon”.^[50] The Judge also noted that injuries from such an attack are not just physical but also emotional.
[56] Judge Phillips noted the aggravating features of the offending: the harm to the victim (physical and emotional); her vulnerability; the extreme violence and kicks to the head; and Mr Nuku’s unlawful presence in a dwelling house.^[51] The Judge also emphasised that the offending occurred within 36 hours of Mr Nuku having been sentenced for other offending relating to the victim. The Judge put to one side the question of premeditation, although he inclined towards the Crown’s submissions on that point.
[57] The Judge treated Mr Nuku’s long list of prior convictions as a personal aggravating factor.^[52] He also noted Mr Nuku’s past breaches of community-based sentences and his high risk of re-offending due to alcohol, drug and anger management issues.^[53] In mitigation, the Judge referred to Mr Nuku’s late guilty plea.^[54] The Judge also accepted that seeing the victim bleeding brought “some realisation” to Mr Nuku of what he had done.^[55]
[58] In arriving at the appropriate starting point, the Judge took account of the bands in Taueki and Harris and, in light of the aggravating features noted above, considered the offending fell “in the middle of the full sentencing range that is available”.^[56] The Judge therefore adopted a starting point of three years (the maximum penalty for wounding with intent to injure being seven years). He uplifted that starting point by three months on account of the escaping lawful custody charge and by a further five months for Mr Nuku’s prior convictions for violent offending.^[57]
[59] With regard to the late guilty plea, the Judge saw this as an acceptance of responsibility. He considered it important for the victim that she did not have to give evidence. On that basis he allowed a 15 per cent discount for the guilty plea, equating to a period of eight months. The Judge considered it appropriate for the totality of the offending, treating the violent offending as the lead charge, that Mr Nuku should go to prison for a period of three years.^[58]
[60] The Judge also imposed a three month concurrent sentence for the escaping lawful custody charge, although he had earlier increased the starting point for the wounding with intent to injure charge by three months on account of that charge. He said he considered that the escaping “was as a result of the position you found yourself in rather than any overt act on your part but you put the police to a good deal of difficulty as you ran away”.^[59]

Starting point

Mr Nuku’s submissions

[61] On behalf of Mr Nuku, Ms Vidal submits that the level of violence in this case should equate with the top of band one in Harris. She accepts that there is the additional factor of the home invasion to consider. This, she submits, takes the offending into band two, justifying a starting point of two years at the most.
[62] It was submitted further that the Judge fell into error by selecting a starting point solely by reference to the maximum penalty. The Judge seemed to consider that the offending was moderate offending and that, because of this, the offending should fall within the middle range for the maximum sentence available. The Judge then proceeded to assess the other sentencing factors from that starting point.
[63] Ms Vidal submits that the starting point and the Judge’s comments on “extreme” violence are hard to reconcile with the assessment of the violence in Harris, where there was dragging, kicking, punching, loss of consciousness on two occasions and detention of the victim until her escape, all of which resulted in a severe black eye, bruising over most of the victim’s body and grazing over her face, legs and body. The Court assessed those injuries as being moderate to serious, justifying a three year sentence (from a starting point of two years, six months).
[64] The three month uplift for the escaping lawful custody charge is not challenged.

Our assessment

[65] We are prepared to assume for these purposes that Harris is the applicable guideline, despite the higher maximum penalty for the charge faced by Mr Nuku (seven years) as against the five year maximum in Harris.
[66] On that basis, we can see no error in the Judge placing the offending squarely within band three of Harris. The Judge accepted that the physical injuries were moderate but considered that the emotional harm, arising from the level of violence employed and the surrounding circumstances of the break in, were significant.
[67] While the attack was more sustained in Harris and there was a loss of consciousness, in both cases there were kicks to the head and bruising on the face and body. In addition, there was no home invasion involved in Harris. The Judge was right to see this as significantly aggravating the seriousness of the offending in this case.
[68] We do not accept the submission that the Judge undertook a mathematical exercise relating to the maximum sentence. He carefully considered the level of offending and the aggravating features of the offending in arriving at the starting point. There is in any event nothing wrong with taking account of the maximum sentence when assessing culpability. Indeed, the maximum penalty is always a relevant factor: it is an indication of Parliament’s view of the seriousness of the particular type of offending.

Personal aggravating features

Mr Nuku’s submissions

[69] The next submission for Mr Nuku is that the uplift of five months for personal aggravating factors was too high. There was only one prior conviction for violence against women and the sentence for that offence was only four months’ imprisonment. Ms Vidal submits that Mr Nuku’s history does not warrant an uplift of the magnitude of five months. At most, one month should have been added for aggravating factors.

Our assessment

[70] We reject that submission. The five month uplift for previous convictions was fully justified, in particular because of the immediacy of the offending after the offending relating to the victim’s father.

Remorse

Mr Nuku’s submissions

[71] It is submitted that there should have been an additional five per cent discount allowed for remorse.

Our assessment

[72] The Judge accepted that Mr Nuku, on seeing that the victim was bleeding, did have some realisation of what he had done. However, Mr Nuku reacted in a violent manner immediately after this when the victim and her friend locked themselves in the bathroom.
[73] Even assuming that this was, as Ms Vidal submits, done with a view to assisting the victim, it was a highly inappropriate method of proceeding and showed little insight into how the victim and her friend would have perceived his actions.
[74] This is very far from the type of remorse that would justify an extra allowance over and above the allowance for the guilty plea. In any event, the stated 15 per cent reduction for Mr Nuku’s guilty plea was generous given the lateness of the plea, and in fact the deduction of eight months for mitigating factors amounted to 18 per cent.

Result

[75] Overall, we accept the Crown’s submission that the sentence imposed on Mr Nuku in this case was well within the available range.
[76] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

Appendix: Extracts from Taueki

Matters contributing to the seriousness of GBH offending

[31] We now turn to the features of offending which will be seen to contribute to the seriousness of the conduct and criminality involved in a GBH offence. We reiterate that the sentencing Judge will need to consider the combination of factors applying in a particular case when assessing the appropriate sentencing band and the starting point within that band. The factors which we highlight are:

(a) Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.

(b) Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence. This reflects s 9(1)(i) of the Sentencing Act.

(c) Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long-term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki, Mr Snell, argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause GBH and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double-count the level of violence inflicted and the seriousness of the injuries which result from it.

(d) Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public where, for example, a firearm is fired indiscriminately in a public place.

(e) Attacking the head: Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.

(f) Facilitation of crime: Where a GBH offence involves the use of violence to facilitate the commission of another offence (for example, rape) that will also be seen as an aggravating factor. That would not apply in the case of an offence under s 191(1), where this factor is an ingredient of the offence.

(g) Perverting the course of justice: Similarly, where violence is used in an attempt to pervert the course of justice (for example, stopping a person from making a complaint or testifying, or punishing a person for doing so), that will be an aggravating factor.

(h) Multiple attackers: The greater the number of attackers and the greater the disparity between the number of the attacking group and the victim group, the greater the culpability will be.

(i) Vulnerability of victim: Where the victim is particularly vulnerable (for example a child, or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(f) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.

(j) Home invasion: Where the offending involves the invasion of the sanctity of the home, this will be a particularly important factor. Section 9(1)(b) of the Sentencing Act applies. As this Court noted in R v McLean [1999] 2 NZLR 263 at 266, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence.

(k) Gang warfare: This factor was specifically identified in Hereora^[60] at 170 and in Mako at [49]. Where serious violence is perpetrated by members of a criminal gang or organised crime cartel, that would be a further aggravating feature.

(l) Public official: Where the victim is a law enforcement officer or other public official (such as an ambulance officer or fire fighter) carrying out his or her duties, that will be a serious additional aggravating factor.

(m) Vigilante action: Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.

(n) Hate crime: Where the attack is inspired by racism, homophobia or hostility to any other group, that may also constitute an additional aggravating factor. Section 9(1)(h) of the Sentencing Act applies.

Matters reducing the seriousness of GBH offending

[32] Matters which may be seen as leading to lower starting points are:

(a) Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

(b) Excessive self-defence: Similarly, where a party has acted out of self-defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.

Matters which should not be seen as reducing the seriousness of GBH offending

[33] To avoid any doubt, we mention that there are some factors which are sometimes said to reduce the seriousness of conduct, but which, in our view, should not be seen in that light. We place the following factors in this category:

(a) Domestic situation: The fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman or child, where the vulnerability of the victim is a significant factor.

(b) Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim (Clotworthy^[61] at 659). That is not, however, to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest.

(c) Intoxication: The fact that an offender is under the influence of alcohol or drugs at the time of the offending will not be a mitigating factor (s 9(3) of the Sentencing Act).

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^[1] R v Nuku DC Invercargill CRI-2011-025-1142, 27 January 2012.

^[2] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA). See also R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [52]–[54].

^[3] Or wounding, maiming or disfiguring with intent to cause grievous bodily harm (GBH).
^[4] Nuku v R [2012] NZCA 338.

^[5] Crimes Act 1961, s 2(1) (definition of “injure”); R v Waters [1979] NZCA 24; [1979] 1 NZLR 375 (CA) at 380; R v Donovan [1934] 2 KB 498 (CA) at 509.

^[6] R v Scott [2007] NZCA 589 at [49]; R v Waters at 378; Moriarty v Brooks (1834) 172 ER 1419 at 1420.

^[7] R v Scott at [31]; R v Moses CA311/94, 15 December 1991 at 1 and 5; R v Waters at 379; Director of Public Prosecutions v Smith [1961] AC 290 (HL) at 334.

^[8] An offence under s 191(1) (aggravated wounding) is effectively a GBH offence committed with the intent to achieve certain specified criminal objectives and carries the same 14 year maximum penalty as an offence under s 188(1). One of the appellants in Taueki, Mr Ridley, had been convicted of an offence under s 191(1), while the other two appellants were convicted of offences under s 188(1).
^[9] At [9].

^[10] R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison [2007] NZCA 78 at [23]; and R v D (CA253/08) [2008] NZCA 267 at [43]. These were all appeals involving s 188(2): wounding with intent to injure.
^[11] At [43].
^[12] R v Harris [2008] NZCA 528.

^[13] Crimes Act 1961, s 189(2) – maximum penalty five years’ imprisonment.
^[14] Taueki, above n 2, at [26].
^[15] At [29]–[33].
^[16] At [34]–[41].
^[17] At [42].
^[18] At [10] and [43].
^[19] At [8].
^[20] At [10].
^[21] At [10].
^[22] At [11].

^[23] See, for example, R v McEwen [2009] NZCA 533 at [17]–[19]; Ross v R [2010] NZCA 306 at [15]–[17]; Johnston-Walters v R [2011] NZCA 367 at [24]; Nand v R [2011] NZCA 566 at [8]–[9] and [12]; and Bennett v R [2012] NZCA 173 at [17]. But contrast Samuel v R [2012] NZCA 376 at [14] and Coulson v R [2012] NZCA 420 at [26].

^[24] Relevantly, offences under ss 188(1), 188(2), 189(1), 191(1) and 191(2). See s 86A of the Sentencing Act 2002.

^[25] Prior to 18 April 2012 this definition was in s 312A of the Crimes Act 1961 and conferred jurisdiction to grant interception warrants. Section 325 of the Search and Surveillance Act 2012 repealed s 312A and inserted the definition into s 2(1). It is now only applicable to offences under s 98A of the Crimes Act, as the Search and Surveillance Act has created new criteria for granting interception (or “surveillance device”) warrants: see ss 45 and 51 of the Search and Surveillance Act.
^[26] Sentencing Act 2002, s 87(5).
^[27] At [8].
^[28] Taueki, above n 2, at [27].

^[29] That is, offences under s 188(1), s 191(1) and s 189(1).
^[30] At [26].
^[31] Taueki, above n 2, at [31](c).
^[32] See at [36] below.
^[33] At [27].
^[34] Harris, above n 12, at [10].

^[35] As this Court recognised in Samuel v R, above n 23, at [14] and Coulson v R, above n 23, at [26].
^[36] At [11].

^[37] See R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) (Mako did not establish bands, but aggravating features of the offending were included in the starting point examples given); Taueki, above n 2; R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
^[38] See [30] above.

^[39] Other considerations are likely to arise where the mens rea is reckless disregard for the safety of others, so we do not comment on those cases. Taueki continues to apply to the GBH offences in ss 188(1), 189(1) and 191(1).

^[40] See Taueki at [35](a). We note that s 8(c) and (d) are to be repealed, from a date to be appointed by Order in Council, by s 6(1) of the Sentencing Amendment Act 2007.
^[41] See Taueki at [35](b).
^[42] Subject to our comments at [36].
^[43] At [31](a).
^[44] At [32].
^[45] At [33].
^[46] See Taueki, above n 2, at [30].

^[47] This accords with the approach taken in Taueki at [60] and R v AM, above n 37, at [125].
^[48] R v AM, above n 37, at [126]–[127].
^[49] At [1]–[2].
^[50] At [12].
^[51] At [11] and [13].
^[52] At [14].
^[53] At [9].
^[54] At [15].
^[55] At [5].
^[56] At [13].
^[57] At [14].
^[58] At [15].
^[59] At [14].
^[60] R v Hereora [1986] 2 NZLR 164 (CA).
^[61] R v Clotworthy (1998) 15 CRNZ 651 (CA).