Nuku v R - [2019] NZCA 25

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA592/2018
[2019] NZCA 25

BETWEEN	STEAD NUKU Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2019
Court:	Miller, Simon France and Peters JJ
Counsel:	Mrs A S Bloem for Appellant JEL Carruthers for Respondent
Judgment:	28 February 2019 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Mr Nuku was sentenced to preventive detention for stabbing two fellow prisoners, on separate occasions, with a home-made knife or shank.[1] In each case the charge, to which he pleaded guilty, was wounding with intent to injure.[2]
[1]R v Nuku [2018] NZHC 2510.
[2]Crimes Act 1961, s 188(2).
These were third-strike offences, meaning that the maximum sentence applied and the two sentences must be imposed concurrently.[3] But for that Downs J would have imposed a determinate sentence of five years and one month’s imprisonment. That calculation is not challenged. The Judge held however that the maximum sentence of seven years imprisonment was not manifestly unjust. He would have imposed that sentence had he not opted for preventive detention.
[3]Sentencing Act 2002 ss 86D(3),(6). Downs J did not make the sentence cumulative upon Mr Nuku’s existing sentence. We did not hear argument on the question whether s86D precludes that course of action.
Mr Nuku appeals, saying that preventive detention was unwarranted. He sensibly abandoned an argument that the maximum sentence would also be manifestly unjust. His grounds come down to this: his strike offending has all occurred in prison, where he is subject to influences that encourage violence as a response to slights, and his reoffending risk on release into the community is not high enough to warrant preventive detention.
We think the Judge was correct, and we can explain why quite shortly.

Circumstances of the offending

The facts of the instant offences are not in dispute. We adopt the Judge’s summary:
[8]       On 31 October 2017—and so just over a year after your second-strike offences—you approached another prisoner from behind. You had a large metal shank, hidden in cloth. For the uninitiated, a shank is an improvised prison weapon; typically sharpened. You used this to strike the victim to the head. You attempted to do so again, several times. A fight ensued. Another prisoner joined in. Prison officers intervened. The victim suffered five lacerations to his head, ranging from one to four centimetres in size.
[9]       You told the writer of the pre-sentence report you committed this offence as the victim had falsely claimed you had taken his CD player. And, you had contemplated a different type of attack, in which you would have stabbed the victim “through the eye”.
[10]     Less than a month later, you approached another prisoner from behind. Again, you had a metal shank. You stabbed the victim with it repeatedly. While you did so, another prisoner punched and kicked the victim. You stabbed the victim not fewer than 12 times. You…

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 25
Case: [2019] NZCA 25
Decision Date: 28 February 2019 at 3.00 pm

CaseChat Overview and Summary

Stead Nuku appeals against his sentence of preventive detention for stabbing two fellow prisoners with a home-made knife, which he pleaded guilty to. The maximum sentence for these offences was seven years imprisonment, but the judge opted for preventive detention due to Nuku's third-strike offences. Nuku argues that preventive detention was unwarranted, claiming that his risk of reoffending in the community is low and that his offending occurs in prison where he is subject to influences that encourage violence. The court must decide whether the judge was correct to impose preventive detention.

The court considered the circumstances of the offending, which showed a pattern of violent behaviour by Nuku. The court also considered Nuku's personal circumstances, including his background, previous convictions, and risk of reoffending. The court found that Nuku's risk of serious violent reoffending at sentence expiry date will remain high unless he commits to rehabilitation. The court also found that preventive detention may provide an incentive for Nuku to undertake rehabilitation while he is still in prison.

The court dismissed Nuku's appeal, holding that the judge was correct to impose preventive detention. The court found that Nuku's risk of reoffending violently at sentence expiry date will remain high unless he commits to rehabilitation, and that preventive detention may provide an incentive for Nuku to undertake rehabilitation while he is still in prison. The court also found that it is in the interests of the community to deter violent offending within prisons.

The appeal is dismissed, and Nuku's sentence of preventive detention stands.

Orders