Nuku v R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeGlazebrook J
Judgment Date13 December 2012
Neutral Citation[2012] NZCA 584
Docket NumberCA113/2012
Date13 December 2012

[2012] NZCA 584

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Ellen France and White JJ

CA113/2012

BETWEEN
Tamaoho Nuku
Appellant
and
The Queen
Respondent
Counsel:

S G Vidal for Appellant

S B Edwards and B C L Charmley for Respondent

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.

The issues were: whether the sentence imposed was within the available range or whether it was excessive; whether the starting point was too high; and whether an additional five per cent discount had to be allowed for remorse.

Held: There was a crucial conceptual difference between the offences to which the R v Taueki guidelines applied (either directly or by analogy) and the violent offending provisions under s189(2), s191(2) and s188(2). This conceptual difference related to intent.

The Court in Taueki rejected a submission that the assessment of criminality should focus on the conduct of the attacker and not on the consequences for the victim. While it could sometimes be a matter of luck how bad the resulting injuries were, the Court said that in the case of GBH offences where the intent is to cause serious harm, if in fact such harm was caused then the offender should face the consequences of his or her actions. This reasoning might not apply to the same degree to offences where the intent was to cause only injury, as the resulting level of harm to the victim might be greater than what the offender contemplated

Another aspect of Taueki that did not sit easily with offences where the intent was merely to cause injury was that almost all GBH offences would involve a high degree of criminality and significant injury to the victim. The Court said that it would only be in exceptional cases that a starting point of less than three years' imprisonment would be appropriate and this was likely to be only when a sentencing judge considered the offending to involve culpability at a level that might have been better reflected in a lesser charge.

Further the Court in Taueki did not refer to non-custodial sentences as possible starting points,. However, there would be cases in offending falling under s189(2), s188(2) and s191(2) where a non-custodial starting point was appropriate, as recognised in Harris with regard to offending under s 189(2).

On the other hand there were difficulties with the approach in Harris. Actual injury inflicted was usually a good proxy for assessing what was intended, but this was not always so. Harris therefore caused difficulties where there was no congruence between intent and injury. Further, although Harris made it clear that the presence of aggravating and mitigating factors of the offending should be taken into account, the case gave little guidance on how that was to be done and in practice there had been a trend for sentencing judges to take into account only the harm inflicted.

The preferable approach was one where aggravating and mitigating factors of the offending were built into the banding decision, rather than considered afterwards as the approach in Harris would suggest. Starting point bands should not be set by reference to the seriousness of injury to the victim. The seriousness of the offending should be assessed by weighing all of the relevant aggravating factors (which was consistent with Taueki).

The seriousness of the injury could be taken into account as an aggravating factor, but care should be taken where there was significant disparity between the extent of the injury and the level of violence. If serious injury occurred that was not a foreseeable consequence of the offender's actions, then this might affect the weight that should be given to the injury as an aggravating factor.

Harris should therefore be replaced with the following guidance, applicable to offending under s189(2), s188(2) and s191(2) where the offending involved intent to injure. This judgment was to provide guidance on how Taueki could be adapted to apply to the lesser charges, rather than being a guideline judgment in its own right.

The following bands applied:

  • “(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

  • (b) Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

  • (c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features. “[para 38]

The approach set out in this judgment was to be applied from the day after the date on which this judgment is delivered except for where:

  • (a) sentencing indications had been given and relied on: judges should adhere to those indications unless the guidelines yielded a more favourable result;

  • (b) appeals were filed against a sentence imposed up to the date of this judgment: the law as it stood prior to the release of this judgment to be applied.

A sentencing judge needed not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors were present but only in a mild form, that might result in the offending being placed in a lower band. The level of seriousness of the aggravating factors would affect where an offence was positioned within a band. Sentencing guidance should not be applied in a mechanical or formulaic manner. When setting the sentence in a particular case, the sentencing judge needed to stand back and undertake an overall assessment of the seriousness of the offending.

R v Harris was the applicable guideline in the present case, despite the higher maximum penalty for the charge faced by N (seven years) as against the five year maximum in Harris. There was no error in the judge placing the offending squarely within band three of Harris. Although the physical injuries were moderate, the emotional harm, arising from the level of violence employed and the surrounding circumstances of the break in, were significant.

While the attack was more sustained in Harris and there was a loss of consciousness, in both cases there were kicks to the head and bruising on the face and body. In addition, there was no home invasion involved in Harris. The judge was right to see this as significantly aggravating the seriousness of the offending in the case.

The judge did not undertake a mathematical exercise relating to the maximum sentence but carefully considered the level of offending and the aggravating features of the offending in arriving at the starting point. The five month uplift for previous convictions was fully justified, particularly because of the immediacy of other related offending (threatening the victim's father). N, on seeing that the victim was bleeding, did have some realisation of what he had done but reacted in a violent manner immediately after this. This type of remorse did not justify an extra allowance over and above the allowance for the guilty plea. The 15 per cent reduction for N's guilty plea was generous given the lateness of the plea, and the deduction of eight months for mitigating factors amounted to 18 per cent.

The sentence imposed on N was well within the available range.

Appeal against sentence dismissed.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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,...

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