Lake v The Queen - [2021] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA664/2020
[2021] NZCA 352

BETWEEN	NIGEL JOHN LAKE Appellant
AND	THE QUEEN Respondent

Hearing:	17 May 2021
Court:	Cooper, Simon France and Edwards JJ
Counsel:	J D Munro and J N Olsen for Appellant M R L Davie for Respondent
Judgment:	29 July 2021 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Mr Lake carried out a sustained vicious assault on a fellow prison inmate. It involved kicking and stomping to the head at least seven times. The victim, who was unconscious for part of the assault, suffered severe facial and head injuries. The assault is expected to result in long-term functional and memory issues.
Mr Lake pleaded guilty to a single charge of wounding with intent to cause grievous bodily harm.[1] Powell J identified a finite sentence of six years’ imprisonment.[2] However, his Honour then determined that the indefinite sentence of preventive detention was the appropriate sentencing outcome.[3] That sentence was accordingly imposed along with a minimum period of imprisonment of six years.
[1]Crimes Act 1961, s 188(1).
[2]R v Lake [2020] NZHC 3013 [High Court judgment] at [25].
[3]At [41].
Mr Lake appeals against the sentence of preventive detention. A further appeal against the length of the alternative finite sentence is not pursued. For the record, we note this alternative sentence of six years’ imprisonment is for a second strike offence, meaning it would be served in full.[4] The Judge indicated he would impose it concurrently,[5] which means it would have commenced on the day of sentencing.

Facts

[4]Sentencing Act 2002, s 86C(4)(a).

[5]High Court judgment, above n 2, at [25].

The facts are sufficiently stated. It can be added that there were two phases to the assault in that Mr Lake rendered the victim unconscious by punching his head seven times, stomped on his head twice and kicked him in the back of the head, left briefly, but then immediately returned to again stomp on the victim’s head at least five further times.

Further information about Mr Lake

Mr Lake is 37 years old. He is a Māori man from the Kāpiti Coast area. He presently is unsure of his iwi or hapū, but expresses an interest in learning about these and his Māori heritage generally. He describes his upbringing as “pretty tough”. His parents separated when he was around five years old. He moved north with his mother and siblings, and seems to have both witnessed significant violence to his mother and experienced it himself. Mr Lake has two teenaged children from brief relationships in his early twenties. It seems he has no current contact with his children, and has never been in a long-term relationship.
Mr Lake was sentenced in 2010, when aged 27, to a term of six years and six months’ imprisonment for stabbing an acquaintance he thought had wronged him.[6] Although there had been…

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 The Queen

Details

AGLC: Lake v The Queen [2021] NZCA 352
Case: [2021] NZCA 352
Decision Date: 29 July 2021 at 3.30 pm

CaseChat Overview and Summary

Nigel John Lake appeals against the sentence of preventive detention imposed by Powell J. Lake pleaded guilty to a charge of wounding with intent to cause grievous bodily harm in respect of an assault on a fellow prisoner. The victim was rendered unconscious and suffered severe facial and head injuries. The Court of Appeal considers the appeal on two grounds. First, that the sentence gives insufficient weight to the prospects of successful rehabilitation. Second, that the sentence is a cruel and disproportionately severe punishment because there is no guarantee Lake will be provided with the necessary treatment assistance. The Court of Appeal rejects the first proposition, observing that it proceeds on an incorrect basis that a sentence of preventive detention means there is no obligation on the Chief Executive to provide treatment. The Court of Appeal rejects the second proposition, observing that the need for an individualised treatment programme has only recently been identified. The Court of Appeal observes that the imposition of preventive detention was the correct response. Lake is very likely to offend again now and in six years’ time if he does not receive individual treatment and respond to it. The restrictions inherent in an extended supervision order would not prevent him from having contact with other people. The initial victim was a friend of Lake’s. The risks of him again either misperceiving a risk or overreacting to something are real. The consequent safety threat to members of the community is serious. For these reasons, the Court of Appeal considers the sentence was properly imposed. If treatment alleviates the risk, Lake will be eligible for parole. The appeal is dismissed.

Orders