Nuku v R

[2016] NZHC 2255

NOTE:  PUBLICATION OF NAME, ADDRESS OCCUPATION OR IDENTIFYING PARTICULARS OR COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-19 [2016] NZHC 2255

BETWEEN

TAMAOHO NUKU

Appellant

AND

THE QUEEN Respondent

Hearing:	22 September 2016
Appearances:	E Higbee for Appellant K Courteney for Crown
Judgment:	23 September 2016

JUDGMENT OF MANDER J

[1]      The  appellant,  Tamaoho  Nuku,  appeals  his  sentence  of  two  years,  three months and one week imprisonment imposed on charges of injuring with reckless disregard and possession of objectionable material.

[2]      Mr Nuku pleaded guilty to these charges after a sentence indication of two years and two months imprisonment was provided by Judge Crosbie.   Mr Nuku’s appeal is based upon the discrepancy between the sentence indicated and that ultimately imposed.

Background

[3]      The victim of Mr Nuku’s assault was […] two months old at the time of the offending.  While Mr Nuku’s partner was in the shower, he was playing Xbox with

the baby sitting on his lap.  Mr Nuku became angry with the baby who was crying

NUKU v R [2016] NZHC 2255 [23 September 2016]

and disrupting his Xbox game.    He held […] her arms and violently shook her, causing severe injuries to her brain.

[4]      The objectionable publication charge relates to Mr Nuku’s use of his cell

phone to access a website and open an electronic text document […]

The sentence indication

[5]      In his sentence indication Judge Crosbie provided:1

[14]     Taking that starting point of two and a half years, in my view there needs to be an uplift of no less than four months.  While the possession of objectionable material might not, on its own, attract an end point of imprisonment, the maximum penalty is five years.  I take into account that it does appear to be isolated and at the lower end.  It requires only a minimal uplift, but an uplift is required in all the circumstances of another three months. That brings me to about three years and one month.

[15]      I am obliged to give Mr Nuku full credit for his plea of 25 percent.  I am not prepared to give him another discount.  Notwithstanding the matter might not go to trial, there is already a concession here for a plea to a less significant charge.  I am not proposing to artificially lower the matter to an end sentence of two years.

[16]      In all the circumstances, the end point would be, in totality, two

years and two months’ imprisonment.

[6]      Mr Nuku pleaded to the indication.

The sentencing

[7]      Judge Crosbie concluded his sentencing remarks in the following way:2

[35]      Other cases referred to also suggest that the Crown’s starting point in relation to a charge with a maximum penalty of five years is an appropriate and responsible one.

[36]     That is the starting point I adopted in May with an uplift for the objectionable publication charge of three months, and an uplift for your previous convictions of four months.  That is a total uplift of seven months on top of the two and a half years which is the starting point of three years and one month.

1      R v Nuku DC Dunedin CRI-2015-012-001137, 5 May 2016.  At sentencing, Judge Crosbie’s

approach to the construction of the sentence was the same.

2      R v Nuku [2016] NZDC 12540.

[37] I am obliged to give you a discount for your plea of 25 percent based on the decision of R v Hessell [2010] 2 NZLR 298 (CA) because the plea was entered at the first opportunity when the charge was amended. That 25 percent discount from a starting point of 37 months is nine months and one week which means that on the basis of my indication to provide you with such a discount, you will be sentenced on the lead charge to two years, three months and one week, and on the publication charge, to six weeks to be served concurrently meaning at the same time.

[8]      It does not appear to have been appreciated, either by the Court or indeed by counsel, that the ultimate sentence imposed was five weeks longer than what had originally been indicated:

The error

[9]      The  reason  for  the  difference  between  the  sentence  indicated  and  that imposed arises from the calculation of the 25 per cent discount for Mr Nuku’s guilty pleas.  The 25 per cent discount both for the purpose of the sentence indication and the sentence was calculated from the same starting point of 37 months (three years and one month).  The error in the application of the discount arose in the calculation made during the course of the sentence indication, which resulted in a sentence indication of two years and two months.  The correct calculation is two years, three months and three weeks, although Judge Crosbie imposed a sentence of two years, three months and one week.   It is the additional five weeks imposed which is the reason for the appeal.

The appeal point as pleaded

[10]     Mr Nuku submitted the appeal was brought to rectify the arithmetical error which it was alleged was caused “by the sentencing process overlooking the agreed discount in respect of totality”.  Mr Nuku submitted that at sentencing there was no mention of totality and as a result there was no moderation of the end sentence resulting from a three month uplift in respect of the objectionable image offending.

[11]     Mr Nuku submitted that an analysis of the sentencing exercise compared with the sentence indication demonstrates that Judge Crosbie overlooked five weeks that he intended to apply to take into account the totality principle.   He submitted this simple error can be corrected on appeal by varying the sentence to the two years, two

months as previously indicated by the District Court and accepted by Mr Nuku when entering his guilty pleas.

[12]     As is apparent from my review of the respective processes adopted in respect of the sentence indication and the sentencing exercise, I do not accept the five week difference between the sentence indication and the actual sentence arises as a result of Judge Crosbie omitting to take into account  an adjustment for totality.   The reference to “totality” in Judge Crosbie’s sentence indication is to the final sentence arrived at as a result of its component parts, which he sets out in his sentence indication. While I accept the totality principle is an overarching consideration when imposing cumulative sentences that was not Judge Crosbie’s approach.  In relation to the possession of objectionable material charge, Judge Crosbie referred to the need to “uplift” the starting point for the lead sentence to reflect that offending.   He described it as a minimal uplift but one that was required.   The ultimate discrete sentence for the objectionable material charge was imposed concurrently.

[13]     Judge Crosbie followed the same process when sentencing Mr Nuku except when applying the 25 per cent reduction he made a calculation which resulted in the sentence of two years, three months and one week.3   I do not consider the error, such as it is, has resulted from any adjustment for the principle of totality.  The real issue on the appeal is the correct approach that should be adopted where the sentence imposed is greater than that previously indicated and which may potentially have induced a defendant to plead guilty on an erroneous premise.

Applicable legal principles

[14]     The appeal is brought pursuant to s 250 of the Criminal Procedure Act, which requires an appellate Court to allow an appeal if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.  In

any other case the appellate Court must dismiss the appeal.4

3      In fact, applying a 25 per cent reduction to 37 months imprisonment results in a sentence of two years, three months and three weeks.

4      Criminal Procedure Act 2011, s 250.

[15]     Mr Nuku submitted that there has been an error in the sentence imposed and that a different sentence should be imposed.  I have already traversed his submission regarding totality, and rejected it.   Contrary to his submission, the only identified error is an arithmetical one relating to the sentence indication and not the sentence itself.

[16]     Under s 61 of the Act, a sentence indication is binding on the judicial officer who provided it.  Where a sentence of a different type or quantum is considered by the sentencing Judge to be necessary, an opportunity must be provided to a defendant to vacate his or her guilty plea.5   In the absence of the expectation generated by the sentence indication being met, a defendant should be given the opportunity to vacate his or her plea.  Where that is not done the appellate Court is required to quash the conviction and remit the matter to the sentencing Court to provide the appellant with that opportunity.6

[17]     However, Mr Nuku does not seek to vacate his pleas.  The issue which then arises is what approach should be taken by the appeal Court where the remedy provided  by the Act  is  not  sought.    Mr  Nuku argued  that,  notwithstanding  the sentence imposed likely being within range, the appeal Court may amend a sentence which has resulted from an arithmetical error.  He refers to the observations of the Court of Appeal in Tutakangahau v R:7

[36]     We also need to address the appellant’s criticism of Brown J’s observation that the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”. That statement reflects the current approach in the sense that the focus is on the sentence imposed rather than the process by which the sentence is reached. That  encapsulation  of  the  position  will  no  doubt  represent  the position in the vast majority of cases. However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge’s intentions.

5      Criminal Procedure Act, s 115; R v Taylor [2013] NZCA 55 at [18].

6      R v Taylor, above n 5, at [29]-[30]; Appuhamilage v Police [2015] NZHC 2355 at [31].

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[18]     As I have already observed, the arithmetical error in this case did not occur in the calculation of the sentence.  The error that occurred arose when providing the sentence indication.  It should have been corrected and drawn to the attention of the sentencing Judge at that time in order that his sentencing intentions were given effect to.

Approach to be taken when the sentence imposed varies from that indicated and the plea is not sought to be vacated

[19]     This Court has taken a varied approach to the situation where a sentence imposed differs from the sentence indicated and the defendant does not wish to vacate his or her plea.  In some cases, notwithstanding the sentence imposed being within the available range, it was considered appropriate to adjust the sentence on

appeal to conform with the indication.8    In other cases, while satisfied an error had

occurred insofar as the sentence failed to conform with that previously indicated, the Court held that to allow the appeal it would also need to be satisfied a different sentence should have been imposed when considering the matter afresh.9

[20]     In my view, the latter course will ordinarily be the appropriate approach, although, as the Court of Appeal observed in Tutakangahau v R, that may not always be the case, citing the example of an arithmetical error in the sentence which ought to be able to be corrected without difficulty on appeal.  Mr Nuku submitted that this is such a case.  However, as I have already observed, the arithmetical error related to the sentence indication not in calculating the sentence imposed.

[21]     The danger that arises when a sentence does not match that indicated is that because a defendant’s expectations have not been met the plea has been entered on a false or mistaken premise.  In order to meet that expectation it is necessary for an appellate Court to provide the appellant with the opportunity to vacate his or her plea in order to remedy the error and purge the potential injustice arising from the faulty

process.

8      Te Tau v Police [2015] NZHC 1716; Te Namu v Police [2013] NZHC 3443.

9      Wilson v R [2015] NZHC 298; Appuhamilage v Police, above n 6; Scoles-Young v Police [2016] NZHC 1120.

[22]     Because Mr Nuku does not wish to avail himself of that course despite being offered the opportunity to do so, any potential miscarriage resulting from a causal connection between the error and the entry of the plea can be discounted.  However, there may be occasions where a defendant has served part of his or her sentence, such that the option of vacating the plea may no longer be a realistic option and a residual concern remains.

[23]     The situation in the present case, however, does not, in my view, give rise to any injustice.   In effect, Mr Nuku is seeking to take advantage of an arithmetical error made by the Judge at the time the sentence indication was provided.  That does not remove his entitlement under the Act to vacate his plea because it has resulted in a difference between the sentence and that indicated.

[24]     Mr Nuku is now aware of the reason for the five week difference between the sentence indicated and the actual sentence. Apart from the arithmetical error made in the course of providing the sentence indication, no other error is identified.  It is not contended the ultimate sentence imposed was outside the range of sentence available or otherwise inappropriate. That concession is responsibly made.

[25]     I do not consider there is any proper reason for adjusting the sentence.   In summary,  I  come  to  that  conclusion  firstly  because  of  the  reason  for  how  the variation between the sentence indicated and the sentence imposed has come about, secondly  because  of  the  absence  of  any  prejudice  to  Mr Nuku  apart  from  him receiving the sentence that was always intended, and thirdly because I am satisfied there is no causal link between the discrepancy and Mr Nuku being induced to plead guilty, he having declined the opportunity to vacate his plea.   Finally, because the sentence imposed was within the range of sentence available to the Judge. Accordingly, I am not satisfied a different sentence should be imposed, and the appeal must therefore be dismissed.

Solicitors:

J Westgate Barrister, Dunedin

Crown Law, Wellington