Lake v R

Case [2017] NZCA 39 3 March 2017

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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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

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]
[1]R v Nuku [2016] NZHC 254.
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 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.
On appeal, issues are taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lake v R

Details

AGLC: Lake v R [2017] NZCA 39
Case: [2017] NZCA 39
Decision Date: 3 March 2017 at 10 am

CaseChat Overview and Summary

In the case of Lake v R, the appellant, Nigel John Lake, challenged the sentence of six years and six months’ imprisonment for a violent assault on a fellow inmate at Paremoremo Prison. The Court of Appeal of New Zealand heard the appeal on 16 February 2017, with Wild, Simon France and Duffy JJ delivering the judgment on 3 March 2017. Lake was represented by counsel K H Maxwell, while the respondent was represented by E J Hoskin. The Court dismissed the appeal against the sentence. Lake's appeal raised several issues, including the starting point of the sentence, the six-month uplift for the prison setting, the discount for personal factors, and the 15 per cent guilty plea discount. The Court found that the starting point of eight and a half years was appropriate, given the extreme violence, premeditation, multiple attackers, vulnerability of the victim, and the gang-related nature of the offence. The six-month uplift for the prison setting was deemed appropriate as it recognised the importance of good order and discipline within the prison environment. The five-month discount for personal factors was also found to be appropriate, as it was based on Lake's limited remorse and actions immediately following the incident. Finally, the 15 per cent guilty plea discount was considered adequate, given the circumstances of the case.

The Court of Appeal dismissed Lake's appeal against the sentence, upholding the original sentence of six years and six months’ imprisonment. This decision confirms the importance of considering factors such as the severity of the offence, the prison environment, and the offender's remorse when determining an appropriate sentence for violent intra-prison incidents.

Orders