R v Nuku - [2018] NZHC 2510

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-004373

[2018] NZHC 2510

THE QUEEN

v

STEAD NUKU

Hearing: 26 September 2018

Counsel:

KA Lummis for Crown AS Bloem for Defendant

Judgment:

26 September 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. AS Bloem, Auckland.

R v NUKU [2018] NZHC 2510 [26 September 2018]

Introduction

[1] Mr Nuku, you are for sentence on two charges of wounding with intent to injure. Both are third-strike offences. This means I must impose the maximum penalty of seven years’ imprisonment. And, I must order you to serve the sentence without parole, unless that would be manifestly unjust.

[2] The Crown also seeks preventive detention. As you probably know, preventive detention is an indefinite sentence.

Facts

[3] You committed both offences at Auckland Prison in Paremoremo. Before I describe them, I address your first- and second-strike offences. All exhibit very serious violence.

First-strike

[4] On 14 July 2015, you and a co-offender assaulted a prisoner in the exercise yard. You had ordered your co-offender to break the victim’s arm. When he failed, you intervened. As the victim was lying on the ground, you kicked him. You then wrenched his arm in an arm lock, causing it to break. You also tried, unsuccessfully, to break his legs and other arm. You then left the scene. Your co-offender continued the assault, including by jumping on his head.

[5] Woolford J adopted a starting point of seven-and-a-half years’ imprisonment for this offending:1 one charge of wounding with intent to cause grievous bodily harm. The Judge imposed a sentence of five years and nine months’ imprisonment, which he described as involving “extreme violence”.2 All this you already know.

Second-strike

[6] On 19 October 2016—and so 15 months later—you committed your second- strike offences. You and other prisoners acted in concert to assault prison officers

with sharpened implements. The offending was premeditated. Some of the officers suffered significant injuries. You pleaded guilty to charges including wounding with intent to cause grievous bodily harm. Lang J adopted a starting point of five years’ imprisonment, which he reduced to an end sentence of three years and 10 months’ imprisonment.3 The Judge made this sentence cumulative on that imposed by Woolford J.

[7]This brings me to your most recent offending, and that for sentence today.

This offending

[8] On 31 October 2017—and so just over a year after your second-strike offences—you approached another prisoner from behind. You had a large metal shank, hidden in cloth. For the uninitiated, a shank is an improvised prison weapon; typically sharpened. You used this to strike the victim to the head. You attempted to do so again, several times. A fight ensued. Another prisoner joined in. Prison officers intervened. The victim suffered five lacerations to his head, ranging from one to four centimetres in size.

[9] You told the writer of the pre-sentence report you committed this offence as the victim had falsely claimed you…

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 2510
Case: [2018] NZHC 2510
Decision Date: 26 September 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, handed down a judgment in the case of R v Nuku, where the defendant, Stead Nuku, was sentenced for two charges of wounding with intent to injure, which are his third-strike offences. The court was required to determine the appropriate sentence for the defendant, considering the three-strikes regime and whether preventive detention should be imposed. The court found that the defendant's offending was of the highest degree of seriousness, premeditated, and involved the use of weapons, including a sharpened shank. The court also found that the defendant had a history of violent offending, with 68 convictions and five Youth Court notations, and had shown little inclination for reform. The court decided that the defendant should be sentenced to the maximum penalty of seven years' imprisonment for each offence, with no eligibility for parole, unless it would be manifestly unjust. The court also decided to impose preventive detention as the defendant is likely to commit a qualifying violent or sexual offence on release. The court found that preventive detention is the only sentence that may persuade the defendant to take responsibility for his actions, and in turn encourage reform.

Final orders:
(a) On each charge, the defendant is sentenced to preventive detention.
(b) The defendant must serve at least seven years' imprisonment.
(c) This sentence is concurrent on the defendant's existing sentences.

Orders