Nuku v The the Queen - [2022] NZCA 11

REDACTED VERSION FOR PUBLICATION

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA191/2020
[2022] NZCA 11

BETWEEN	STEAD NUKU Appellant
AND	THE QUEEN Respondent

Hearing:	4 August 2021
Court:	French, Gilbert and Courtney JJ
Counsel:	E P Priest and P D Wilks for Appellant S K Barr and J A A Mara for Respondent
Judgment:	8 February 2022 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The minimum period of imprisonment of 14 years is set aside.
C A minimum period of imprisonment of 10 years is substituted.
DThe sentence of preventive detention is confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Following a vicious attack on a fellow prisoner with a shank, Mr Nuku pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The victim was a member of the Mongrel Mob and Mr Nuku was then a member of a rival gang, the Killer Beez.[1] The previous day, on his 27th birthday, Mr Nuku learned that [Redacted] by a Mongrel Mob member. Mr Nuku said he carried out this attack in retaliation.
[1]Mr Nuku says he has since disassociated himself from the Killer Beez and is no longer affiliated with any gang.
Mr Nuku is now aged 29. He has spent almost all his adult life in prison, having received his first prison sentence when he was only 17. The present offending was his second third‑strike offence committed in prison. Indeed, all his serious violent offending has been committed while in prison. Mr Nuku was already serving a sentence of preventive detention for two earlier offences of wounding with intent to injure (stabbing two fellow prisoners with a shank on separate occasions) and was subject to an order requiring him to serve a minimum period of imprisonment of seven years.[2] The second of these offences was Mr Nuku’s first third-strike offence, the other having been committed shortly before the final (stage-two) warning was given.
[2]R v Nuku [2018] NZHC 2510; aff’d [2019] NZCA 25.
Katz J sentenced Mr Nuku for the present offending to a further sentence of preventive detention and ordered him to serve a minimum period of imprisonment of 14 years, being the maximum penalty available for this offence.[3] If the three-strikes regime had not applied, the Judge said she would have imposed a sentence of 10 years and six months’ imprisonment and ordered Mr Nuku to serve a minimum period of imprisonment of seven years.[4] The Judge arrived at this indicative sentence in the following way:
(a)Adopting a starting point of 13 years’ imprisonment taking account of the aggravating features of the offending (one year less than the maximum available for this offence).[5]
(b)Applying an uplift of one year to reflect Mr Nuku’s previous offending.[6]
(c)Allowing a discount of 10 months (six per cent) for Mr Nuku’s seriously disadvantaged background which the Judge was satisfied had contributed to his offending.[7]
(d)Applying a 20…

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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Details

Case: [2022] NZCA 11
Decision Date: 8 February 2022 at 9.30 am

CaseChat Overview and Summary

Stead Nuku was convicted of wounding with intent to cause grievous bodily harm to a fellow prisoner, an act he committed in retaliation for the murder of a family member by a member of a rival gang. The Court of Appeal of New Zealand was asked to consider the length of the minimum non-parole period the High Court Judge had imposed. The Judge had ordered that Mr Nuku serve a minimum of 14 years before he could apply for parole. Mr Nuku's counsel submitted that this was manifestly unjust. The Court of Appeal agreed and reduced the minimum non-parole period to 10 years. The reasoning of the Court of Appeal was that the 14-year minimum period of imprisonment was grossly disproportionate when measured against the purposes of sentencing and the particular circumstances of the offender and offence. Mr Nuku had already served significant periods of imprisonment for two earlier violent offences committed in prison. He was already serving a sentence of preventive detention for these offences, with a minimum non-parole period of seven years. Given the nature of Mr Nuku's offending and his lengthy history of imprisonment, the Court of Appeal considered that a minimum period of imprisonment of seven years would have been sufficient to meet the purposes of sentencing. The Court of Appeal held that the imposition of a 14-year minimum period of imprisonment was manifestly unjust because it would be grossly disproportionate, contrary to the public interest, and would remove all hope of rehabilitation and eventual reintegration.

Orders