Nuku v R [2019] NZCA 319 (18 July 2019)

Last Updated: 26 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA660/2018 [2019] NZCA 319

	BETWEEN	DYLAN NUKU Appellant
	AND	THE QUEEN Respondent

Hearing:	15 July 2019
Court:	Collins, Simon France and Lang JJ
Counsel:	R M Gould for Appellant M R Harborow for Respondent
Judgment:	18 July 2019 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] Mr Nuku appeals a sentence of seven years’ imprisonment imposed following his plea of guilty to a charge of wounding with intent to cause grievous bodily harm (the wounding charge).^[1] Mr Nuku also received concurrent sentences that ranged between one month and 18 months’ imprisonment for other charges. It is, however, the sentence for the wounding charge that is the focus of his appeal.
[2] Three grounds of appeal have been advanced:

• (a) The starting point of nine years’ imprisonment was too high. It is contended that a starting point of eight and a half years’ imprisonment should have been adopted.
• (b) A discrete discount of between six and nine months should have been made on account of Mr Nuku’s mental impairment.
• (c) A discrete discount should also have been granted for remorse.

[3] The ground of appeal we have summarised at [2(b)] was promoted as the “principal” ground of appeal. We will, however, deal first with the starting point adopted by Cull J before dealing with the other two grounds of appeal.

Background

[4] On 18 November 2017, Mr Nuku and his co-offender got into a taxi in central Wellington. They had been drinking and gambling in the city. There was evidence that Mr Nuku had also been consuming cannabis and methamphetamine. The offenders asked the taxi driver to take them to Miramar. During the journey, Mr Nuku took possession of a short-barrelled pistol that had been in a bag belonging to his co-offender.
[5] When the taxi arrived at an address in Miramar, the co-offender attempted to pay the driver with a form of debit card that was not able to be used to pay for the fare. Mr Nuku got out of the taxi and approached the driver’s door. He pointed the pistol at the driver through the open driver’s window. Mr Nuku attempted to open the driver’s door while, at the same time, telling the driver to get out of the car. When the driver refused to get out of his taxi, Mr Nuku shot him at very close range. Mr Nuku and the cooffender then ran off.
[6] The taxi driver suffered serious injury to his right shoulder. He required surgery and he continues to suffer psychologically from the trauma of the events. The taxi driver immigrated to this country in order to seek a better way of life for his family. He has now had to give up his job as a taxi driver, thereby causing financial stress to his family.
[7] Mr Nuku, who is now 28 years old, has 29 previous convictions, including a conviction for wounding committed in 2009 for which he was sentenced to four years and eight months’ imprisonment and a conviction in 2016 for injuring with intent to injure for which he was sentenced to one year and two months’ imprisonment.
[8] Questions arose about Mr Nuku’s sanity at the time of the offending and his fitness to stand trial. These concerns resulted in five reports being obtained from three psychiatrists. After it became apparent Mr Nuku was not insane at the time of the offending and that he was fit to stand trial, he sought a sentence indication.
[9] The sentence indication was one of six years and 11 months’ imprisonment. Mr Nuku accepted that indication and pleaded guilty. No issue is taken with the fact that the final sentence was slightly higher than the indicated sentence. Sentencing was deferred until 5 October 2018 to afford Mr Nuku the opportunity to complete an alcohol and drug rehabilitation programme.
[10] When sentencing Mr Nuku, the High Court Judge added three months to the nine year starting point to reflect Mr Nuku’s other offending^[2]. From this starting point, the Judge added a further three months to reflect his previous violent offending.^[3] The Judge then deducted two months on account of positive steps taken by Mr Nuku while awaiting sentence and from there she deducted a further 28 months (25 per cent) to reflect Mr Nuku’s guilty plea and remorse.^[4]

Starting point

[11] The High Court Judge assessed Mr Nuku’s offending as being at the upper end of band two of this Court’s guideline judgment in R v Taueki.^[5] In making this assessment, the High Court Judge noted four aggravating factors:^[6]

• (a) Mr Nuku’s use of a weapon;
• (b) the seriousness of the injuries to the victim;
• (c) the vulnerability of the victim; and
• (d) the fact there was a degree of premeditation in the offending.

[12] We agree with the Crown that there were other aggravating features engaged in this case:

• (a) extreme violence (as distinct from the use of the weapon and the seriousness of the injuries to the victim); and
• (b) the offending occurred during the facilitation of a crime.

[13] There is considerable force in the Crown’s submission that the nine year starting point adopted by the High Court Judge for the wounding charge was generous to Mr Nuku. In our assessment, a starting point of nine and a half to 10 years could not have been criticised.

Discount for mental impairment

[14] This Court has previously explained that mental impairment may be a mitigating factor that justifies a reduction of a sentence where:^[7]

• (a) there is evidence of a causal relationship between the defendant’s mental impairment and his or her offending; or
• (b) the effects of the defendant’s mental impairment would make a prison sentence more severe; or

(c) there is a real risk of a prison sentence having a significant adverse effect on the defendant’s mental health.

[15] Mr Nuku’s history with mental health services dates back to 2002. In 2015 he was diagnosed with paranoid schizophrenia. In addition, Mr Nuku has had a dependency on alcohol and illicit drugs that also dates back many years.
[16] It was submitted on behalf of Mr Nuku that his mental impairment materially contributed to his offending such that the failure to grant him a discount on this ground produced an end sentence that was manifestly excessive. Reliance was placed on two cases in support of this submission namely, Tuau v R and R v Waititi.^[8]
[17] Tuau v R is an example of the category of case we have summarised in [14](a). Mr Tuau was granted a discrete discount by this Court to take account of the fact that his schizophrenia had materially contributed to his offending.^[9] In R v Waititi, the High Court reiterated that a discount may be granted where a defendant’s mental impairment is a cause of their offending and, where a prison sentence is likely to adversely affect the defendant’s mental health.^[10]
[18] Mr Nuku’s counsel took particular issue with the High Court Judge’s assessment that his use of alcohol, cannabis and methamphetamine on the night of the offending “overshadowed” the extent, if any, that Mr Nuku’s mental impairment contributed to his offending and that there was “no clear evidence” that Mr Nuku’s “mental impairment had a causative impact on [his] culpability”.^[11]
[19] The psychiatric reports into Mr Nuku’s mental impairment adduced at trial included a report from Dr Heads dated 24 January 2018. She noted that in the week following his offending, Mr Nuku was “extremely disturbed”, that he had not been medicated for his psychiatric illnesses for some time and that he had been abusing substances, including methamphetamine. Dr Heads said Mr Nuku’s abuse of substances “undoubtedly exacerbated his mental illness”, but that “it is almost certainly the case that Mr Nuku was not acutely mentally disturbed at the time of [his offending]”.
[20] The Court had three psychiatric reports prepared by Dr Judson dated 9 March, 28 March and 18 July 2018. In his last report, Dr Judson said that “Mr Nuku’s pattern of offending behaviour appears to arise predominately from his antisocial personality and background factors rather than his mental illness”. Dr Judson suggested that Mr Nuku’s mental impairment did “not need to be the focus of sentencing”.
[21] Dr Barry-Walsh also provided a psychiatric report. He informed the Court that it was evident Mr Nuku was suffering from a deterioration in his psychotic illness at about the time of his offending and that the offending occurred “in the context of a serious mental illness”. Dr Barry-Walsh said “[I]t is likely the illness was a factor contributing to [Mr Nuku’s] actions particularly the violence he ... demonstrated in the shooting of the taxi driver”. Dr Barry-Walsh suggested that Mr Nuku’s mental impairment “may represent significant mitigation should he be found guilty”.
[22] The reports all show Mr Nuku has had a history of delusional thoughts that included him believing he was the subject of government surveillance. In his statement to the writer of the pre-sentence report, Mr Nuku said the taxi driver was “part of a secret government agency”. This contradicted what Mr Nuku said to Dr Judson when he conveyed to the psychiatrist the impression that the shooting was not the product of his persecutory delusions.
[23] On the other hand, it is clear from Dr Barry-Walsh’s report that Mr Nuku’s mental illness played some role in his offending. There is, therefore, a basis to question the High Court Judge’s statement that there was no clear evidence that Mr Nuku’s mental impairment impacted upon his culpability. In these circumstances it may have been appropriate for there to have been a discrete recognition of the impact of Mr Nuku’s mental disorder upon his offending. No issue could have been taken with a discount of six months to reflect this consideration.
[24] As we have noted earlier, however, the starting point adopted by the High Court more than compensated for any discount that might have been made on account of Mr Nuku’s mental impairment. Thus, although this was a case in which a discount might have been made to take account of Mr Nuku’s mental impairment, no miscarriage of justice arose through the failure to do so.

Remorse

[25] The High Court Judge recognised that Mr Nuku had demonstrated “genuine remorse” in a letter to the victim and said the “full guilty plea discount” of 25 per cent recognised this.^[12]
[26] The discount given to Mr Nuku to reflect his guilty plea and his remorse was more than sufficient. We see no merit in the contention that a further discrete discount should also have been allowed for remorse.

Result

[27] None of the grounds of appeal succeed. The appeal against sentence is therefore dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Nuku [2018] NZHC 2609.

^[2] At [23]–[24].

^[3] At [27].

^[4] At [33]–[36] and [39]–[40].

^[5] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[6] R v Nuku, above n 1, at [18].

^[7] E (CA689/2010) v R [2010] NZCA 113, (2011) 25 CRNZ 411 at [68]–[70]; and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [47]–[48].

^[8] Tuau v R [2012] NZCA 146; and R v Waititi [2015] NZHC 1211.

^[9] Tuau v R, above n 8, at [49].

^[10] R v Waititi, above n 8, at [44] and [47].

^[11] R v Nuku, above n 1, at [29] and [32].

^[12] R v Nuku, above n 1, at [40].