R v Nuku [2016] NZHC 254 (24 February 2016)

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R v Nuku [2016] NZHC 254 (24 February 2016)

Last Updated: 24 February 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-044-002617 [2016] NZHC 254

THE QUEEN

v

STEAD NUKU NIGEL JOHN LAKE

Hearing:	24 February 2016
Appearances:	S McColgan for the Crown R M Mansfield and S Lack for Nuku GNE Bradford for Lake
Sentencing:	24 February 2016

_{SENTENCING NOTES OF WOOLFORD J}

Solicitors: Crown Solicitor, Auckland

Counsel: R M Mansfield, Auckland

GNE Bradford, Auckland

R v NUKU and LAKE [2016] NZHC 254 [24 February 2016]

Introduction

[1] Nigel Lake and Stead Nuku you appear today for sentence. You have both pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.¹

The maximum penalty for that offence is 14 years imprisonment.

[2] On 15 December 2015, I gave you both a sentence indication.² Mr Nuku, you accepted that indication on 16 December 2015 and entered a guilty plea accordingly. Mr Lake, you did not accept the indication in time, and on 21 January

_{2016 Toogood J deemed it to be declined.}³ _{Ultimately, however, you have pleaded}

guilty and the Crown is not opposed to the indication being followed.⁴

[3] The full facts of your offending are set out in the sentence indication, a copy of which is annexed to these notes. I will not, therefore, repeat the facts at length, but for completeness I re-summarise the background now.

Background

[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}

¹ _{Crimes Act 1961, s 188(1).}

² _{R v Nuku & Lake [2015] NZHC 3232.}

³ _{R v Lake HC Auckland CRI-2015-044-2617, 21 January 2016 (minute of Toogood J).}

⁴ Mr Lake entered his guilty plea on 10 February 2016.

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 semi-conscious. 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.

Personal circumstances and reports

[11] I have now had the benefit of reading the pre-sentence reports prepared by the Department of Corrections.

Mr Nuku

[12] Mr Nuku, you are 23 years old. As I said at the sentence indication, you have a long criminal history. Most recently you were sentenced in May 2014 to two years and three months imprisonment for burglary. In July 2015, another nine months imprisonment was added to that sentence after you attacked a fellow inmate during an argument over nicotine. You had a maximum security classification and the pre- sentence report assessed you as posing a high risk of harm to others.

[13] You are a patched member of the Mongrel Mob. You grew up wanting to join the gang and describe it as all you have known and all you have got. You express some level of regret for the incident and say that you feel bad for the victim. You add, however, that you are not sorry and it was simply a task to be carried out for the gang.

[14] The report records that you had a very unstructured upbringing and lifestyle. You do not recall ever attending formal education. You are motivated to attend the High Risk Personality Programme to achieve a lower security classification. This in turn would allow you to attend further rehabilitative programmes.

Mr Lake

[15] Mr Lake, you are 32 years old. At the time of this offending you were serving a sentence of six and a half years imprisonment for a charge of wounding with intent to cause grievous bodily harm. You have a significant number of other convictions, although largely for less serious offending. You are assessed as having a medium risk of re-offending and as posing a high risk of harm to others.

[16] The report says that you express some remorse and have written a letter of apology to the victim. However, the report writer notes that you appear not to understand the seriousness of your behaviour and that you lack insight into the impact it has had on others.

[17] You attended a medium intensive rehabilitation programme while in prison, but benefitted from it very little, due in part to your limited reading and writing skills. Reading and writing has always been something that you have struggled with, and the report notes that it is an area in which you would like some support. Prior to your incarceration you worked for many years as a truck driver.

Approach to sentencing

[18] For you, Mr Nuku, I indicated that I would impose a sentence of six years imprisonment subject to any personal mitigating factors. For your offending,

Mr Lake, I indicated that a sentence of six and a half years imprisonment would be appropriate, again subject to any personal mitigating factors.

[19] In sentencing you now, I follow the standard three stage approach that I used during your sentence indication.⁵ This means I will first explain the starting points that I have selected. I will then make any necessary adjustments for personal aggravating and mitigating factors. Finally, I will apply discounts for your guilty pleas.

[20] In doing so, I have considered the purposes and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act 2002.⁶ In particular, I have regard to the need to denounce your conduct, promote accountability for the harm to the victim, and deter others from engaging in similar behaviour. At the same time, I must consider the importance of your rehabilitation as well as the need to maintain consistency in sentencing levels.

Starting point

[21] The guideline judgment in sentencing someone for grievous bodily harm offending is R v Taueki.⁷ It sets out three “bands” of appropriate sentencing ranges depending on the number of aggravating factors present. Band one offending calls for a starting point between three and six years imprisonment. Band two starting points range from five to 10 years imprisonment, and band three starting points range from nine to 14 years imprisonment.

[22] Although you perpetrated a joint attack, I have assessed your role and the aggravating features of your offending separately.

[23] In your case, Mr Nuku, I have identified five aggravating factors. These were the extreme violence used;⁸ the premeditated nature of the attack;⁹ the use of

⁵ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135.}

⁶ _{Sentencing Act 2002, ss 7 and 8.}

⁷ _{R v Taueki, above n 5, at [31].}

⁸ _{At [31a].}

⁹ At [31b].

multiple attackers;¹⁰ the vulnerability of the victim who had already been beaten by

Mr Lake;¹¹ and that the offending was gang related.¹²

[24] In your case, Mr Lake, the same five aggravating factors were present. As to vulnerability, the courts have accepted that a prisoner who cannot escape is vulnerable.¹³ Moreover, your assault on the victim after Mr Nuku walked away, occurred when he was already lying on the ground. In your case, there is also a sixth aggravating factor, namely attacking the head.¹⁴

[25] Weighing these features, I note this offending involves a significant number of aggravating factors, but also that not all of them were present to a grave extent. In both cases I have placed your offending at the higher end of Taueki band 2.

[26] In arriving at exact starting points, I have also considered a number of comparable cases which I described in detail in the sentencing indication.¹⁵ In your case, Mr Nuku, your behaviour was deliberate and premeditated. In particular, you directed the initial attack. It also involved a chilling element with you stepping in to break the victim’s arm when Mr Lake was taking too long. On the other hand, you did not carry out or plan the most violent elements of the offence. I also note that the

actual or long term harm caused to the victim was less serious than in some of the other cases I have considered involving wounding with intent to cause grievous bodily harm.¹⁶ Your starting point will accordingly be seven and a half years imprisonment.

[27] Mr Lake, you have the added feature of being the person who perpetrated the most extreme violence in this assault. Attacking the head carries a high risk of

_{causing serious injury to a victim, and the Court of Appeal has said that it will be}

¹⁰ _{At [31h].}

¹¹ _{At [31i].}

¹² _{At [31k].}

¹³ _{R v Briggs HC Auckland CRI-2008-027-060, 14 August 2009.}

¹⁴ _{R v Taueki above n 5, at [31e].}

¹⁵ R v Briggs, above n 13; Vincet v R [2015] NZCA 510; R v Wereta [2015] NZHC 2248; R v Rawiri Wereta [2014] NZHC 2555; Heke v R [2010] NZCA 476; R v Connelly [2010] NZCA 52; Tuhiwwai v R [2012] NZCA 209; Simeon v R [2010] NZCA 559.

¹⁶ See for example R v Briggs, above n 13; R v Rowles [2015] NZHC 2041; King v R [2015] NZCA

436.

treated as similar to offending involving the use of a weapon.¹⁷ I must, therefore, place your offending at a higher level than Mr Nuku’s. On the other hand, I do note that it was Mr Nuku who initially directed the attack, and again, that the actual harm caused to the victim was not as severe as in some other cases, although you were lucky in that respect. The starting point for you will be eight and a half years imprisonment.

Adjusting for personal factors

[28] I turn now to consider your personal factors.

Aggravating factors

[29] As I said during the indication, it is an aggravating factor that this attack occurred while you were serving sentences for prior offending. Offending in prison places a great strain on prison discipline and must be regarded seriously.¹⁸ Others

confined in prison are entitled to protection,¹⁹ and the Courts cannot accept that just

because violence might frequently occur in prison this necessarily limits its seriousness. In your case, the attack was unprovoked and did not stem in any way from the victim’s behaviour in a prison context. Both of your starting points will therefore be uplifted by six months. This takes your sentence, Mr Nuku, to eight years imprisonment and yours, Mr Lake, to nine years imprisonment.

[30] I am not going to make additional uplifts for your previous convictions so that is the only aggravating factor.

[31] I turn now to consider whether I should apply any discounts for personal mitigating factors. Mr Mansfield submits that you, Mr Nuku, should receive a discount of at least 10 per cent for remorse and your efforts at rehabilitation.

[32] During your interview for your pre-sentence report, Mr Nuku, you expressed feeling bad for your victim, but said you were not sorry. Mr Mansfield submits that

¹⁷ _{R v Taueki, above n 7, at [31e].}

18. R v Wereta, above n 15, at [35] citing Tryselaar v R [2012] NZCA 535 and R v Connolly, above n 15.

¹⁹ R v Wereta, above n 15, at [20].

this should be considered in light of your lack of formal education and the difficulty you have expressing yourself in formal situations. He highlights that you have participated in a restorative justice programme with your victim via AVL at Paremoremo prison, during which you addressed the victim directly and apologised. Finally, Mr Mansfield emphasises that you are keen to engage with further rehabilitation programmes.

[33] I do not consider that a 10 per cent discount is available in your circumstances. However, I am willing to take the factors emphasised by Mr Mansfield into account along with your comparative youth. You are a young man still and I hope that you will be encouraged to work towards rehabilitating yourself and making a meaningful change. I will, therefore, reduce your sentence by four months. This brings you to seven years and eight months imprisonment after personal factors have been taken into account.

[34] Mr Lake, you do express remorse in your pre-sentence report and say that you have written a letter of apology to the victim, although it does not appear that you really appreciate the seriousness of your offending. I am also mindful of the fact that you did attempt to render assistance to the victim following the attack. This too is a positive factor and one that demonstrates some regret for your actions. I am prepared to give you a discount of five months. That will take your sentence to eight years and seven months imprisonment.

Discount for guilty plea

[35] The next factor to consider is your guilty plea discounts. In the sentence indication, I said I would allow a discount of 20 per cent. Mr Nuku you accepted the indication promptly and are entitled to that discount. This brings your sentence to a little over six years and one month’s imprisonment.

[36] Mr Lake, you did not plead guilty until almost two months after the sentence indication. In light of this, I have decided to reduce your guilty plea discount to

15 per cent. This takes your sentence to seven years and two months imprisonment.

Totality

[37] Finally, I must apply the totality principle. Mr Nuku, you are already serving an effective sentence of three years imprisonment. Adding the current sentence would give a total sentence of nine years and one month in prison. I have considered whether this would be out of proportion to the totality of your offending considered as a whole. In doing so, I have placed weight on the fact that you were convicted of another prison assault in 2014. I am concerned that you offended in a similar way so soon and also at the escalation in the scale of the offending. I am going to reduce your sentence for totality, but in light of these factors it will be only a four month reduction. Your end sentence will therefore be one of five years and nine months imprisonment.

[38] Mr Lake, you are serving a sentence of six and a half years imprisonment. Adding the current sentence would result in a total of 13 years and eight months imprisonment. That is a very long sentence. If both offences had been considered at the same time you would likely have received a totality reduction. Though each offence was serious, I am persuaded that the total sentence would be excessive. I am prepared, therefore, to reduce your sentence by eight months imprisonment. Your end sentence will be six and a half years imprisonment.

Sentence

[39] Mr Nuku, Mr Lake, please stand.

[40] On the charge of wounding with intent to cause grievous bodily harm, I sentence you, Mr Nuku, to five years and nine months imprisonment. This is to be served cumulatively on your existing sentence.

[41] On the charge of wounding with intent to cause grievous bodily harm, I sentence you, Mr Lake, to six and a half years imprisonment. Again, this is to be served cumulatively on your existing sentence.

[42] Mr Lake, I am entering a conviction for wounding with intent to cause grievous bodily harm, and given your conviction, you are now subject to the three

strikes law. I am now going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences, which lists the ‘serious violent offences’.

[43] If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[44] If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would manifestly unjust. In that event the Judge must sentence to you a minimum term of imprisonment.

[45] Mr Lake, I am also making an order, as agreed between counsel, dismissing the charge of attempted murder against you pursuant to s 147 Criminal Procedure Act 2011.

[46] You may both stand down.

.....................................

Woolford J