Lake v R [2017] NZCA 39 (3 March 2017)

Last Updated: 13 March 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA121/2016 [2017] NZCA 39
BETWEEN	NIGEL JOHN LAKE Appellant
AND	THE QUEEN Respondent

Hearing:	16 February 2017
Court:	Wild, Simon France and Duffy JJ
Counsel:	K H Maxwell for Appellant E J Hoskin for Respondent
Judgment:	3 March 2017 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Lake appeals a sentence of six years and six months’ imprisonment for what can only be described as a vicious assault on a fellow inmate.^[1]
[2] It is convenient to repeat the Judge’s summary of the offending:

[4] You were both prisoners at Paremoremo Prison. The victim of your offending was a fellow inmate, who you attacked in the exercise yard during a one hour scheduled break.

[5] Mr Nuku you instructed Mr Lake to break the victim’s arm. Mr Lake, you proceeded to fight with the victim for a brief period. The fight initially broke apart. However, you returned several minutes later and began to punch the victim. He took up a defensive position and did not attempt to attack you in return. You pulled him up by his neck several times and then, while he was on the ground, you attempted unsuccessfully to break his arm.

[6] At this point, Mr Nuku, you intervened, apparently frustrated at the length of time Mr Lake was taking. You kicked the victim while he was on the ground before placing his arm in an arm lock and wrenching it. This caused the victim’s arm to break. You attempted to do the same to the victim’s other arm and both legs, fortunately without success. Finally, you walked away leaving the victim lying on the ground.

[7] Mr Lake, you then stepped back in. You punched the victim in the head several times while he lay immobile. You then jumped at least a half metre in the air and landed with both feet on the victim’s head. This move you repeated three times.

[8] The victim was left semiconscious. In addition to the broken arm, he suffered a fractured jaw and a fractured skull. It took 20 minutes for Corrections Officers to arrive and assist him, although the Crown accepts that you, Mr Lake, did attempt to assist the victim before they arrived by putting him in the recovery position and ringing the alarm bell.

[9] Mr Nuku, you acknowledge that you ordered Mr Lake to carry out the assault. In explanation, you said that the victim was lying and trying to be a Mongrel Mob member, when he was in fact Black Power. You have said, however, that there was no plan for Mr Lake to jump on the victim’s head.

[10] Mr Lake, you confirm that Mr Nuku told you to break the victim’s arm. You offer no explanation as to why you jumped on his head.

[3] On appeal, issues are taken with the starting point, with a six month uplift to reflect the prison setting, with the size of the discount given for personal factors, and with a 15 per cent guilty plea discount. We address each in turn.
[4] Concerning the starting point, the offending was placed at the upper limit of band two (five to 10 years’ imprisonment) of R v Taueki.^[2] Woolford J noted that the actual or long-term harm caused to the victim was less than in many cases of comparable violence, and this tempered the starting point.^[3] The Judge first identified five aggravating factors applicable to both Mr Nuku and Mr Lake — extreme violence; premeditated nature of the attack; multiple attackers; vulnerability of the victim in that at some point both Mr Nuku and Mr Lake attacked the victim when he was already in an injured state, and the fact that the offending was gang-related.^[4] Other factors applicable to Mr Lake were then also identified.^[5] Ms Maxwell submits that two of the common five factors were inapplicable to Mr Lake, namely premeditation and the gang connection.
[5] We do not agree. The assault was plainly premeditated, and there is no evidence available to disassociate Mr Lake from that. Nor was there any statement by Mr Lake to say he only knew of it when called upon in the yard to attack. Woolford J was correct to link the premeditation to both Mr Nuku and Mr Lake. Likewise, the motivation for the attack was, as a fact, gang-related. Mr Lake was a willing participant. Whether, and where, he sits within the gang structure is of little moment. There is nothing to say he was unaware of the gang connection.
[6] The more relevant inquiry is whether the eight and a half year figure was available, and of that there can be no doubt. Jumping three times on the head of an already injured man lying on the ground is significant violence. The planning and motive for the attack, the vulnerability of the isolated victim and the fact of multiple offenders only serve to reinforce that a significant starting point was required. Eight and a half years’ was well within range.
[7] The next challenge relates to the uplift for the fact the offending occurred in a prison setting. The appropriateness of such an uplift is well-established,^[6] and there are no features here that make its imposition inappropriate. Ms Maxwell queried whether an incident between inmates which carried no risk of greater escalation nor inherently threatened prison safety merited separate recognition. We consider it does. Good order and discipline within the difficult prison environment is essential. Activities that threaten that, such as intrainmate violence, will normally deserve marking out, whether it be by a higher placement on the available range or by uplift. Six months here was appropriate and not excessive.
[8] As for the discount for personal factors, this was based on the Judge’s assessment of Mr Lake’s remorse, and his actions immediately following the incident. It appears Mr Lake put the victim in the recovery position and then rang the alarm. Justice Woolford gave a five month discount which equates to a deduction of 4.6 per cent. We see no difficulty with the quantum. Neither gesture is overwhelming in its nature; it shows a level of humanity that is to be welcomed, but which has been acknowledged by a discount. The circumstances of the offending allow for little more. It seems Mr Lake carried out his assault simply because he was directed to do so, whilst not himself having any animus to the victim. Claims of remorse must be viewed carefully in light of such detached offending. The Judge recorded there was still no insight on the part of Mr Lake into the seriousness of the offending.^[7] We are satisfied no greater uplift was merited here.
[9] The final matter advanced in support of the appeal is the credit for the guilty plea. Both Mr Nuku and Mr Lake sought a sentencing indication at which a 20 per cent discount was indicated. As Woolford J observed at the time, this was a generous figure given the timing of the sentencing indication request and the incontrovertible case against both men. Mr Nuku accepted the indication. Mr Lake did not. When eventually he pleaded guilty some two months after the indication, the Judge reduced the discount. That was an appropriate response, especially given the initial figure had expressly been noted as generous. Again, the correct focus is whether 15 per cent is inadequate, and we do not consider it is.
[10] The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Nuku [2016] NZHC 254.

^[2] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34].

^[3] At [26].

^[4] At [23]-[24].

^[5] At [24].

^[6] Tryselaar v R [2012] NZCA 353 at [18]; Pulete v R [2013] NZCA 216 at [28]; Karetu v R [2013] NZCA 408 at [18]–[19]; and Kepu v R [2011] NZCA 104 at [18]–[19].

^[7] At [16].