NUKU v R [2022] NZCA 441

NUKU v R [2022] NZCA 441 [16 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA516/2011[2022] NZCA 441BETWEEN KARL TEANGIOTAU NUKUApplicantAND THE KINGRespondentCourt: Cooper P, Gilbert and Goddard JJCounsel: Applicant in PersonC Ure for RespondentJudgment:(On the papers)16 September 2022 at 2 pmJUDGMENT OF THE COURTThe application for recall of this Court's judgment in Pandey-Johnson v R [2012]NZCA 595 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a jury trial in mid-2011, Mr Nuku and his co-defendant,Mikhail Pandey-Johnson, were convicted of the murder of Dean Browne. Both weresentenced to life imprisonment and ordered to serve a minimum period ofimprisonment (MPI) of 18 years.11 R v Pandey-Johnson HC New Plymouth CRI-2011-443-13, 29 July 2011.[2] Mr Nuku and Mr Pandey-Johnson both appealed against conviction andsentence. Their appeals were dismissed by this Court on 19 December 2012.2Mr Nuku's application for leave to appeal his conviction to the Supreme Court wasdismissed on 1 May 2014.3 Mr Pandey-Johnson's separate application for leave toappeal his conviction to the Supreme Court had already been dismissed.4[3] Mr Nuku now applies for recall of this Court's judgment on his sentenceappeal. He contends that the sentence imposed on him was unfair and disproportionatecompared to that imposed on Mr Pandey-Johnson because their parole eligibility datesare not the same. This is because Mr Nuku was granted electronically monitored bail(EM bail) during the period from 31 March 2010 to 24 June 2010 whereasMr Pandey-Johnson was remanded in custody.[4] The Supreme Court confirmed in Uhrle v R5 that the limited circumstances inwhich it may be appropriate to grant recall of a decision in a criminal case are as setout in Horowhenua County v Nash (No 2).6 The third ground — whether for someother very special reason justice requires that the judgment be recalled — is likely tobe the most relevant.7 As this Court explained in Lyon v R, the essence of the recalljurisdiction is to enable a court to do what is necessary to maintain its character asa court of justice.8 Exercise of the discretion will be appropriate only in exceptionalcases to avoid real injustice.9 The judgment sought to be recalled must beimpeached.10 The recall jurisdiction is not intended to provide an opportunity fora party to raise an issue of fact or law that could have been, but was not, previouslyadvanced.112 Pandey-Johnson v R [2012] NZCA 595.3 Nuku v R [2014] NZSC 45.4 Pandey-Johnson v R [2013] NZSC 135.5 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].6 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.7 Uhrle v R, above n 5, at [29].8 Lyon v R [2020] NZCA 430 at [20], citing Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB528 at [52].9 At [20], citing Taylor v Lawrence, above n 8, at [55].10 At [21]–[22].11 At [25], citing Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13].[5] The present application falls well short of meeting the high threshold requiredto justify the exceptional step of recalling this Court's judgment, nearly 10 years afterit was delivered in December 2012. We can state our reasons briefly.[6] Critically, the application does not seek to impeach this Court's decision.The 18-year MPI imposed by the High Court was challenged on appeal on the soleground that s 104 of the Sentencing Act 2002 was not engaged. This Court rejectedthat contention.12 Mr Nuku did not argue in support of his appeal that the MPI wasmanifestly excessive taking account of the short period he was on EM bail. This Courtwas therefore not required to address that issue. It would not be appropriate to invokethe limited recall jurisdiction for the purpose of permitting Mr Nuku to raise this pointnow, nearly 10 years after his appeal was heard.[7] In any event, the High Court was not required as a matter of law to adjustthe MPI to take account of this factor.13 And any adjustment, had one been allowed atall, could only have been very modest. A failure to make such an adjustment couldnot possibly justify interference with an 18-year MPI on appeal on the ground it wasmanifestly excessive, even if such an adjustment had been sought at the time. In allthe circumstances, the short period of time Mr Nuku was on EM bail would haveminimal, if any, relevance in the sentencing exercise for this very serious murder.[8] It is irrelevant that Mr Pandey-Johnson has an earlier parole eligibility date.This simply reflects that he was remanded in custody whereas Mr Nuku successfullyapplied for bail. No injustice arises out of this alleged disparity. There is nojustification to recall this Court's judgment.Result[9] The application for recall of this Court's judgment in Pandey-Johnson v R[2012] NZCA 595 is declined.12 Pandey-Johnson v R, above n 2, at [46].13 Filoa v R [2010] NZCA 588 at [9], citing R v Nepe [2008] NZCA 98 at [32]–[33].Solicitors:Crown Law Office, Wellington for Respondent