Nuku v R

Case [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…

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AGLC
Nuku v R [2016] NZHC 2255
Case
[2016] NZHC 2255
Decision Date

CaseChat Overview and Summary

In this case, 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. The court was required to determine whether an error in the calculation of the discount for Nuku's guilty pleas warranted a sentence adjustment. The appeal hinged on the discrepancy between the sentence indication provided by Judge Crosbie and the sentence ultimately imposed. Nuku argued that the discrepancy arose from an arithmetical error in the calculation of the discount, which may have induced him to plead guilty on an erroneous premise.

The court examined the reasoning behind the sentence indication and the sentencing exercise. The error arose from the calculation of the 25% discount for Nuku's guilty pleas during the sentence indication, which resulted in a sentence indication of two years and two months, rather than the correct calculation of two years, three months, and three weeks. However, the court found that the discrepancy did not result from any adjustment for the principle of totality. Instead, it was an arithmetical error relating to the sentence indication, not the sentence itself. The court also noted that Nuku did not seek to vacate his pleas, despite being offered the opportunity to do so.

Considering the applicable legal principles and previous cases, the court concluded that the appropriate approach in this situation was to dismiss the appeal. The court found no proper reason to adjust the sentence, as the variation between the sentence indicated and the sentence imposed was due to an arithmetical error made during the sentence indication, and there was no prejudice to Nuku apart from him receiving the sentence that was always intended. The court was also satisfied that there was no causal link between the discrepancy and Nuku being induced to plead guilty, as he had declined the opportunity to vacate his plea. Additionally, the sentence imposed was within the range of sentence available to the Judge. Therefore, the appeal was dismissed.

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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