Nuku v R

Case [2016] NZHC 2255 23 September 2016

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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…

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 [2016] NZHC 2255
Case: [2016] NZHC 2255
Decision Date: 23 September 2016

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