Nuku v R Coa

JurisdictionNew Zealand
JudgeGlazebrook J
Judgment Date13 December 2012
Neutral Citation[2012] NZCA 584
Docket NumberCA113/2012
CourtCourt of Appeal
Date13 December 2012
BETWEEN
Tamaoho Nuku
Appellant
and
The Queen
Respondent

[2012] NZCA 584

Court:

Glazebrook, Ellen France and White JJ

CA113/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Reasons delivered 13 Dec 2012 for sentencing appeal dismissed 27 July 2012 — Sentencing guidance for offending under s189(2) (injuring with intent to injure or with reckless disregard for safety of others), s188(2) (wounding etc or causing GBH with intent to injure or reckless disregard) and s191(2) (aggravated injury) Crimes Act 1961 where the offending involves intent to injure — judgment to replace R v Harris in respect of that range of offending from this judgment on — appeal against sentence for wounding with intent to injure under s188(2) — appellant invaded house of former partner and caused injuries to her — sentencing Judge considered the offending to be in the middle of the full Harris sentencing range — whether the sentence was excessive — whether the starting point adopted by the judge was too high — whether an additional five per cent discount had to be allowed for remorse.

Counsel:

S G Vidal for Appellant

S B Edwards and B C L Charmley for Respondent

The appeal against sentence is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction

[1]

New Zealand assault provisions

[5]

Relevant judgments

[7]

R v Taueki

[10]

R v Harris

[14]

Submissions of the parties

[19]

The Crown's submissions

[19]

Mr Nuku's submissions

[24]

Discussion of Taueki and Harris

[28]

Our approach

[37]

Starting date for guidance in this judgment

[44]

Mr Nuku's appeal

[46]

Background

[47]

Sentencing remarks

[54]

Starting point

[61]

Mr Nuku's submissions

[61]

Our assessment

[65]

Personal aggravating features

[69]

Mr Nuku's submissions

[69]

Our assessment

[70]

Remorse

[71]

Mr Nuku's submissions

[71]

Our assessment

[72]

Result

[75]

Appendix: Extracts from Taueki

Introduction
1

Mr Nuku pleaded guilty to one count of wounding with intent to injure and one count of escaping lawful custody pursuant to ss 188(2) and 120(1)(c) of the Crimes Act 1961 respectively. On 27 January 2012, Judge Phillips sentenced Mr Nuku to three years' imprisonment. 1 Mr Nuku appeals against that sentence.

2

The matter was set down before the Permanent Court so that the Court could consider the application of the sentencing guidelines in R v Taueki to offences involving the infliction of violence other than offending under s 188(1) of the Crimes Act, 2 dealing with causing grievous bodily harm (GBH) with intent to cause GBH. 3

3

On 27 July 2012, we dismissed Mr Nuku's appeal with reasons to follow. 4 We now provide those reasons.

4

We deal first with the sentencing guidelines issue and then consider Mr Nuku's appeal. We record our gratitude to both counsel for their very helpful submissions.

New Zealand assault provisions
5

In New Zealand there are a large number of different offence provisions for assault. The maximum penalties for those offences vary from one to 14 years' imprisonment. The table set out below summarises those offence provisions:

Section

Description

Maximum Penalty

s 196

Common assault

1 year

s 194(a)

s 194(b)

Assault on a child

Male assaults female

2 years

2 years

s 193

Assault with intent to injure

3 years

s 192

Aggravated assault

3 years

s 189(2)

s 189(2)

Injuring with intent to injure

Injuring with reckless disregard for the safety of others

5 years

5 years

s 191(2)

Aggravated injury

7 years

s 188(2)

s 188(2)

Wounding, maiming, disfiguring or causing GBH with intent to injure

Wounding, maiming, disfiguring or causing GBH with reckless disregard for the safety of others

7 years

7 years

s 189(1)

Injuring with intent to cause GBH

10 years

s 188(1)

Wounding, maiming, disfiguring or causing GBH with intent to cause GBH

14 years

s 191(1)

Aggravated wounding

14 years

6

Injury is actual bodily harm that causes hurt or injury calculated to interfere with the health or comfort of the victim. 5 A wound requires proof of the breaking of the skin and a flow of blood either external or internal. 6 GBH means really serious harm. 7

Relevant judgments
7

In Taueki, this Court said it was anticipated that the guidelines set out in that case would be able to be applied, by analogy, to s 191(1) offences 8 and to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence and the maximum penalty provided for it. 9

8

This Court subsequently cautioned against adopting a mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty. 10 In R v D (CA253/08) the Court said: 11

While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].

9

There is another relevant judgment: R v Harris, 12 where this Court considered the application of the Taueki guidelines to sentencing for the offence of injuring with intent to injure. 13 We summarise both Taueki and Harris below.

R v Taueki
10

The sentencing guidelines in Taueki are primarily applicable to offences under s 188(1) of the Crimes Act, which are referred to throughout the judgment as “GBH offences”. The Court said that GBH offences can vary substantially in seriousness in terms of both the level of culpability of the offender and the extent of the consequences for the victim. However, any GBH offence involves very serious offending, as is reflected in the 14 year maximum term. An offender will be convicted only if he or she has acted with an intention of inflicting really serious harm on the victim and has actually caused harm of that gravity, or wounded, maimed or disfigured the victim. 14

11

The judgment in Taueki outlines a number of features that contribute to the seriousness of the conduct and criminality involved in a GBH offence, although the Court emphasised the need for sentencing judges to evaluate the seriousness of eac particular factor and the combination of factors present in a particular case, in order to determine the appropriate sentencing band and starting point. 15 For ease of reference, [31] of Taueki, dealing with aggravating factors, is set out in the Appendix to this judgment.

12

Three sentencing bands (ranges of starting points) are set out in the judgment as follows: 16

  • (a) Band one: three to six years

    • This band is appropriate for offending involving violence at the lower end of the spectrum of GBH offences, which do not involve extreme

      or life-threatening violence. Where none of the aggravating features outlined are present, a starting point at the bottom end of band one will normally be appropriate. The presence of one or more of those features requires a higher starting point.
  • (b) Band two: five to 10 years

    • This band is appropriate for GBH offending that features two or three of the aggravating features outlined.

  • (c) Band three: nine to 14 years

    • This band encompasses serious offending that has three or more of the aggravating features present and where the combination of those features is particularly grave.

13

While the judgment gives some examples of the types of offending that will fall within each band, the Court reiterated the need for the suggested bands and starting points to be applied flexibly. 17 The principal objective of the guidelines is greater consistency in approach and, as a consequence, sentencing levels, by providing guidance as to the manner in which the sentencing discretion should be exercised. 18

R v Harris

14

In Harris, this Court rejected a submission from the appellant's counsel that involved mathematically adjusting the Taueki sentencing bands to reflect the lesser maximum penalty under s 189(2) for the offence of injuring with intent to injure, referring to previous cautions against such an approach. It also identified two problems with applying Taueki to less serious violent offending. First, some of the aggravating features identified in Taueki are likely to be relevant only to GBH offending. Second, because of the wide range of offences that can be alleged in

relation to moderately serious crimes of violence and the unexacting tests for what constitutes an injury, there is a good deal of scope for prosecutorial discretion and the possibility of overcharging. For these reasons, simply shrinking the bands and slavishly applying the aggravating and mitigating features identified in Taueki may create difficulties for sentencing judges. 19
15

The Court then considered the nature of the offence of injuring with intent to injure and said that such an offence involves establishing both intent to cause injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. The Court said that cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can therefore fairly be sentenced primarily by reference to the seriousness of the injury suffered (an approach the Court considered was broadly consistent with Taueki). 20

16

The Court therefore set bands and starting point sentences (before allowance for personal aggravating and mitigating factors) on the basis of the level of injury inflicted. 21

17

The Court went on to say that, beyond the extent of the...

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