Nuku v R

Case [2012] NZCA 584


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IN THE COURT OF APPEAL OF NEW ZEALAND
CA113/2012
[2012] NZCA 584

BETWEEN  TAMAOHO NUKU
Appellant

AND  THE QUEEN
Respondent

Hearing:         18 July 2012

Court:             Glazebrook, Ellen France and White JJ

Counsel:         S G Vidal for Appellant
S B Edwards and B C L Charmley for Respondent

Judgment:      27 July 2012

Reasons:         13 December 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
New Zealand assault provisions [5]
Relevant judgments [7]
R v Taueki [10]
R v Harris [14]
Submissions of the parties [19]
The Crown’s submissions [19]
    Mr Nuku’s submissions [24]
Discussion of Taueki and Harris [28]
Our approach [37]
Starting date for guidance in this judgment [44]
Mr Nuku’s appeal [46]
Background [47]
Sentencing remarks [54]
Starting point [61]
Mr Nuku’s submissions [61]
Our assessment [65]
Personal aggravating features [69]
Mr Nuku’s submissions [69]
Our assessment [70]
Remorse [71]
Mr Nuku’s submissions [71]
Our assessment [72]
Result [75]
Appendix: Extracts from Taueki

Introduction

  1. Mr Nuku pleaded guilty to one count of wounding with intent to injure and one count of escaping lawful custody pursuant to ss 188(2) and 120(1)(c) of the Crimes Act 1961 respectively.  On 27 January 2012, Judge Phillips sentenced Mr Nuku to three years’ imprisonment.[1]  Mr Nuku appeals against that sentence.

    [1]      R v Nuku DC Invercargill CRI-2011-025-1142, 27 January 2012.

  2. The matter was set down before the Permanent Court so that the Court could consider the application of the sentencing guidelines in R v Taueki to offences involving the infliction of violence other than offending under s 188(1) of the Crimes Act,[2] dealing with causing grievous bodily harm (GBH) with intent to cause GBH.[3]

    [3]Or wounding, maiming or disfiguring with intent to cause grievous bodily harm (GBH).

  3. On 27 July 2012, we dismissed Mr Nuku’s appeal with reasons to follow.[4]  We now provide those reasons.

  4. We deal first with the sentencing guidelines issue and then consider Mr Nuku’s appeal.  We record our gratitude to both counsel for their very helpful submissions.

New Zealand assault provisions

  1. In New Zealand there are a large number of different offence provisions for assault.  The maximum penalties for those offences vary from one to 14 years’ imprisonment.  The table set out below summarises those offence provisions:

Section

Description

Maximum Penalty

s 196

Common assault

1 year

s 194(a)

s 194(b)

Assault on a child

Male assaults female

2 years

2 years

s 193

Assault with intent to injure

3 years

s 192

Aggravated assault

3 years

s 189(2)

s 189(2)

Injuring with intent to injure

Injuring with reckless disregard for the safety of others

5 years

5 years

s 191(2)

Aggravated injury

7 years

s 188(2)

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AGLC
Nuku v R [2012] NZCA 584
Case
[2012] NZCA 584
Decision Date

CaseChat Overview and Summary

The appeal against sentence in the case of Tamaoho Nuku, who pleaded guilty to one count of wounding with intent to injure and one count of escaping lawful custody, was dismissed by the Court of Appeal of New Zealand. The Court of Appeal considered the application of the sentencing guidelines in R v Taueki to offences involving the infliction of violence other than those under s 188(1) of the Crimes Act, which deals with causing grievous bodily harm (GBH) with intent to cause GBH. The Court of Appeal rejected a mathematical approach to any adjustment process where the charge involved a lesser degree of harm or culpability and therefore carried a lesser maximum penalty. Instead, the Court of Appeal emphasised the need for sentencing judges to evaluate the seriousness of each particular factor and the combination of factors present in a particular case, in order to determine the appropriate sentencing band and starting point. The Court of Appeal also preferred an approach where aggravating and mitigating factors of the offending were built into the banding decision, rather than considered afterwards as the approach in Harris would suggest. The Court of Appeal emphasised that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a particular case, the sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending. The Court of Appeal accepted the Crown’s submission that the sentence imposed on Mr Nuku was well within the available range.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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