R v Nuku

Case [2018] NZHC 2609 5 October 2018

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-085-3023 [2018] NZHC 2609

THE QUEEN

v

DYLAN NUKU

Hearing: 5 October 2018

Appearances:

G J Burston and T G Bain for the Crown
J M Miller and J P Miller for the Defendant

Judgment:

5 October 2018

SENTENCING NOTES OF CULL J

[1] Mr Nuku, while I read my sentencing notes you may sit down and I will ask you to stand again at the end when I formally sentence you. Can you just confirm for me whether you completed the drug and alcohol course?
Mr Nuku: “Yes, Your Honour. I completed it on Friday 28 September.” Thank you. You may sit down while I read my sentencing notes, Mr Nuku.

[2] Mr Nuku, after pleading guilty, you appear for sentence today in relation to seven charges:

(a) wounding with intent to cause grievous bodily harm;1

(b) unlawful possession of a firearm;2

1 Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
2 Arms Act 1983, s 45(1). Maximum penalty is four years’ imprisonment or a fine not exceeding

R v NUKU [2018] NZHC 2609 [5 October 2018]

(c) intimidation;3

(d) shoplifting under a value of $500;4

(e) unlawfully entering a vehicle;5

(f) being unlawfully in an enclosed yard;6 and

(g) breach of release conditions.7

[3] In sentencing you today, I will explain:

(a) your offending;

(b) your personal circumstances;

(c) the starting point I have adopted and why;

(d) the adjustments I have made to this starting point; and

(e) your final sentence.

Your offending

[4] I want to deal first with your offending. Your offending occurred on four separate occasions.

[5] Between 28 September and 26 October 2017, you breached your prison release conditions, by failing to report to your Probation Officer.

$5,000, or both.
3      Summary Offences Act 1981, s 21(1)(a). Maximum penalty $2,000 fine or three months’
imprisonment.
4      Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
5      Section 226(2). Maximum penalty two years’ imprisonment.
6      Summary Offences Act 1981, s 29(1)(b). Maximum penalty $2,000 fine or three months’
imprisonment.
7      Sentencing Act 2002, s 96(1). Maximum penalty $2,000 fine or one year imprisonment.

28 October 2017

[6] On the second occasion, on 28 October 2017, you committed the offences of intimidation and shoplifting. You went to a liquor store with a friend. Once inside, you picked up a box of alcohol and two further bottles of alcohol and attempted to leave the store after making no attempts to pay for them. The victim got in the way and pleaded you to put the alcohol down. You held one of the bottles above your head and told the victim in an aggressive tone that if he didn’t move you would smash him. The victim moved out of the way and you ran from the scene with the alcohol. The amount of alcohol that was taken was valued at $138.96 and reparation…

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 R v Nuku

Details

AGLC: R v Nuku [2018] NZHC 2609
Case: [2018] NZHC 2609
Decision Date: 5 October 2018

CaseChat Overview and Summary

Dylan Nuku appeared before Cull J in the High Court of New Zealand, Wellington Registry, to be sentenced on seven charges, including wounding with intent to cause grievous bodily harm, unlawful possession of a firearm, intimidation, shoplifting, unlawfully entering a vehicle, being unlawfully in an enclosed yard, and breach of release conditions. The court heard that Nuku had a history of violent offending and mental health issues, including paranoid schizophrenia, which had been exacerbated by his drug and alcohol use. The court determined a starting point of nine years' imprisonment for the most serious charge, wounding with intent to cause grievous bodily harm, taking into account the use of a weapon, the seriousness of the injury inflicted, the vulnerability of the victim, and the degree of premeditation. The court adjusted the starting point to account for the totality of Nuku's offending and his previous convictions, resulting in a sentence of nine years and three months' imprisonment. The court also considered mitigating factors such as Nuku's guilty plea, his remorse, and his efforts to engage in rehabilitation and treatment. The final sentence imposed was seven years' imprisonment for the charge of wounding with intent to cause grievous bodily harm, with all sentences to be served concurrently, resulting in an effective sentence of seven years' imprisonment.

The court ordered Nuku to pay $45 for the lost taxi fare and a further $138.96 for the stolen alcohol. Cull J encouraged Nuku to continue accessing treatment and rehabilitation during his sentence to facilitate his successful reintegration into society upon release.

Orders