Nuku v R - [2019] NZCA 319

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

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

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.
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 co‑offender then ran off.
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.
Mr Nuku, who is now 28 years old,…

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 Nuku v R

Details

AGLC: Nuku v R [2019] NZCA 319
Case: [2019] NZCA 319
Decision Date: 18 July 2019 at 4.00 pm

CaseChat Overview and Summary

Dylan Nuku has appealed against his sentence of seven years’ imprisonment for wounding with intent to cause grievous bodily harm, imposed following his guilty plea. This appeal is before the Court of Appeal of New Zealand. The appeal focuses on three grounds: the starting point for sentencing, the impact of Nuku’s mental impairment, and the need for a discrete discount for remorse. The Crown argued that the starting point of nine years was appropriate, given the aggravating factors such as the use of a weapon, the seriousness of the victim’s injuries, the vulnerability of the victim, and the premeditation involved. The Court agreed that the starting point was within a reasonable range.

Regarding the mental impairment, the Court considered whether there was evidence of a causal relationship between Nuku’s impairment and his offending or whether the effects of his impairment would make a prison sentence more severe. The psychiatric reports indicated that Nuku’s mental health issues, including paranoid schizophrenia, had some influence on his actions, but the court found that his substance abuse overshadowed any impact from his mental impairment. The court noted that while a discount might have been warranted, the starting point sufficiently accounted for the mitigating factors.

Lastly, the court acknowledged Nuku’s remorse, reflected in his guilty plea and a letter to the victim. The full discount for the guilty plea was deemed sufficient, and no additional discount for remorse was necessary. The appeal was dismissed, and the original sentence was upheld.

Orders