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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
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.
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]
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
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)
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.
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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.