NUKU v R [2022] NZCA 11 [Redacted]

NUKU v R [2022] NZCA 11 [8 February 2022] [Redacted]REDACTED VERSION FOR PUBLICATIONIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA191/2020[2022] NZCA 11BETWEEN STEAD NUKUAppellantAND THE QUEENRespondentHearing: 4 August 2021Court: French, Gilbert and Courtney JJCounsel: E P Priest and P D Wilks for Appellant S K Barr and J A A Mara for RespondentJudgment: 8 February 2022 at 9.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The minimum period of imprisonment of 14 years is set aside.C A minimum period of imprisonment of 10 years is substituted.D The sentence of preventive detention is confirmed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a vicious attack on a fellow prisoner with a shank, Mr Nuku pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The victim was a member of the Mongrel Mob and Mr Nuku was then a member ofa rival gang, the Killer Beez.1 The previous day, on his 27th birthday, Mr Nuku learned that [Redacted] by a Mongrel Mob member. Mr Nuku said he carried out this attack in retaliation.[2] Mr Nuku is now aged 29. He has spent almost all his adult life in prison, having received his first prison sentence when he was only 17. The present offending was his second third-strike offence committed in prison. Indeed, all his serious violent offending has been committed while in prison. Mr Nuku was already serving a sentence of preventive detention for two earlier offences of wounding with intent to injure (stabbing two fellow prisoners with a shank on separate occasions) and was subject to an order requiring him to serve a minimum period of imprisonment of seven years.2 The second of these offences was Mr Nuku's first third-strike offence, the other having been committed shortly before the final (stage-two) warning was given.[3] Katz J sentenced Mr Nuku for the present offending to a further sentence of preventive detention and ordered him to serve a minimum period of imprisonment of 14 years, being the maximum penalty available for this offence.3 If the three-strikes regime had not applied, the Judge said she would have imposed a sentence of 10 years and six months' imprisonment and ordered Mr Nuku to serve a minimum period of imprisonment of seven years.4 The Judge arrived at this indicative sentence in the following way:(a) Adopting a starting point of 13 years' imprisonment taking account of the aggravating features of the offending (one year less than the maximum available for this offence).5(b) Applying an uplift of one year to reflect Mr Nuku's previous offending.61 Mr Nuku says he has since disassociated himself from the Killer Beez and is no longer affiliated with any gang.2 R v Nuku [2018] NZHC 2510; aff'd [2019] NZCA 25.3 R v Nuku [2020] NZHC 506 [High Court judgment].4 At [32]. See also Sentencing Act 2002, s 86(4).5 At [20].6 At [21].(c) Allowing a discount of 10 months (six per cent) for Mr Nuku's seriously disadvantaged background which the Judge was satisfied had contributed to his offending.7(d) Applying a 20 per cent discount for Mr Nuku's early guilty plea, resulting in an indicative end sentence of 10 years and six months' imprisonment.8(e) Imposing a minimum period of imprisonment of seven years.9[4] The Judge considered it would not be manifestly unjust for Mr Nuku to serve the entire duration of 14 years' imprisonment without any prospect of parole in all the circumstances. She accordingly set 14 years as the minimum period of imprisonment on the sentence of preventive detention.10Appeal[5] Mr Nuku appeals against his sentence. He does not challenge the sentence of preventive detention, only the minimum period of imprisonment of 14 years. He contends this order was manifestly unjust in terms of s 86D(7)(b) of the Sentencing Act 2002 (the Act) and ought to have been 10 years. In particular, he argues that the Judge erred in the following three respects:(a) failing to take adequate account of the sentencing purpose of assisting in Mr Nuku's rehabilitation and reintegration;(b) failing to give sufficient allowance for personal and cultural mitigating factors; and(c) failing to recognise that a full 25 per cent discount ought to have been allowed for his early guilty plea.7 At [27]–[28].8 At [32].9 At [32] and [35].10 At [36] and [49].[6] The ultimate question on appeal is whether the minimum period of imprisonment of 14 years was manifestly unjust. If not, the Judge was obliged to impose it.11[7] The leading authority on the proper approach to the assessment of manifest injustice in this context is the decision of a Full Court of this Court in R v Harrison.12Although decided with reference to s 86E of the Act, the Court's reasoning applies with equal force to the manifest injustice exception under s 86D.13 This Court considered that the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes. The circumstances to justify such a finding must be clear and convincing but cases falling within the exception need not be rare or exceptional. The assessment requires careful consideration of all relevant circumstances of the offence and the offender. The sentence that would have been imposed but for the three-strikes regime will obviously be relevant. The purposes and principles of sentencing in ss 7, 8 and 9 of the Act must also be given due weight.14The overall question is whether it would be grossly disproportionate, given the particular circumstances of the offending and the offender, for the offender to be sentenced to the maximum term of imprisonment without any prospect of parole.15Facts of the offending[8] We have already set out the tragic circumstances that prompted Mr Nuku to attack this particular inmate. These circumstances help explain why Mr Nuku may have considered his attack was justified according to the code of conduct and gang culture he was brought up with and has lived by. However, these circumstances obviously cannot excuse his actions, nor does he contend otherwise. He accepts he must face the consequences and take responsibility for the significant harm caused to the victim.[9] The summary of facts to which he pleaded guilty records that at about 3 pm on 8 April 2019, Mr Nuku, a maximum security prisoner, was in the exercise yard at11 Sentencing Act, s 86D(7)(b).12 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.13 See R v Waitokia [2018] NZHC 2146 at [7]–[8]; and R v Campbell [2016] NZHC 2817.14 R v Harrison, above n 12, at [108].15 At [110].Auckland Prison with the victim and two other prisoners. They paired off in order to practise grappling and mixed martial arts techniques. Mr Nuku and the victim formed one pair for this "fight training". The victim ended up lying face down with Mr Nuku straddling his back and pinning his arms to his sides with his knees. Mr Nuku put one arm around the victim's neck and applied pressure until he lost consciousness. He then repeatedly stabbed the victim to the side of his neck and head with a piece of metal that had been folded to a point and sharpened to form an improvised blade. The victim regained consciousness, stood up and moved away but Mr Nuku continued to stab him in the face, neck and back, even after the victim stumbled and fell to the ground. Mr Nuku then walked away leaving the victim lying in a pool of blood.[10] The victim was taken to hospital where his wounds were treated. The consulting surgeon provided a report the following day recording that the victim sustained at least 12 stab wounds to his back, several to his flank, one to his right shoulder and numerous lacerations to his face. The most serious injury was a three centimetre wound to the back of the neck. The wounds were cleaned and closed with sutures that were to be removed the following week.[11] In his victim impact statement, the victim stated that he has lost feeling on the right side of his head and finds it difficult to turn his head or lie in certain positions. He has flashbacks and nightmares. He says he has difficulty sleeping, causing his "anxiety to rise from fear of not knowing if and when this is going to happen again".16[12] The pre-sentence report provided to the Court in October 2019 noted Mr Nuku's concession that his actions were a premeditated response to the tragic news he received the previous day that [Redacted]. The report writer considered that Mr Nuku exhibited no remorse for the offending and had "resigned himself to the fact that he will be in prison for a long time". At the same time, Mr Nuku was reported to be motivated to address his offending behaviour and to attend rehabilitative programmes in prison.16 Statistical information obtained by Mr Nuku's counsel from the Department of Corrections shows that in the six-month period to 30 June 2019, 61 of the 144 maximum security prisoners at Auckland Prison (43 per cent) had perpetrated a prisoner-on-prisoner assault.[13] The offending was undoubtedly serious. Mr Nuku accepts the various aggravating features of the offending identified by the Judge and does not challenge her assessment that a starting point of 13 years' imprisonment would have been appropriate had the three-strikes regime not applied.Personal and cultural background[14] Mr Nuku was born in Hastings. He identifies as Māori but is reported to be severely disconnected from Te Ao Māori, having had no meaningful engagement inany cultural activities that would help to reinforce his place in the world as a youngMāori tāne.[15] Mr Nuku's father, a patched member of the Mongrel Mob, played no part in his upbringing. Mr Nuku recalls meeting him only twice.[16] Mr Nuku's mother was an alcoholic and likely consumed alcohol while pregnant with him. This may explain why, according to her report, Mr Nuku suffers from poor concentration, hyperactivity and slow learning.[17] Earlier professional reports state that Mr Nuku's mother emotionally neglected her children (Mr Nuku has two older stepsisters from two other fathers and four stepbrothers from a different mother) and he was left without consistent nurturing or support during his early childhood. His family has been involved in the Mongrel Mob from as early as he can remember. He says his "whole family were in the Mob" and he "grew up around it". He was exposed to domestic violence and substance abuse in the family home to such an extent he often had to run away, or stay away, from the house. During these times, he would stay with friends or simply roam the streets. He frequently truanted and finally left school at the age of 11. He says he started drinking alcohol "hard out" on a daily basis from the age of 12. He previously described his childhood as "pointless".[18] Mr Nuku's mother eventually moved to Australia to live with her new partner, taking Mr Nuku with her. He was then aged 14. Mr Nuku says he did not like her partner and within two or three weeks he left home. He again fended for himself, drinking heavily and living rough. He resorted to committing petty theft in order tosurvive. He became involved in the local gang culture and was said to have been recognised for his fighting skills and leadership qualities. Reports from the time describe his adolescent years as being characterised by a lack of structure, susceptibility to peer influence and a need to be accepted.[19] Mr Nuku ended up in foster care in Australia for a short period before being returned to New Zealand at the age of 16. We note that, while in Australia, Mr Nuku was diagnosed with Attention Deficit Hyperactivity Disorder and received medication for a short time. He has recently expressed interest in obtaining further treatment for this condition. On his return to New Zealand, Mr Nuku was placed in a foster home, but he left a short time later to live with his aunt and cousins. He became a prospect for the Mongrel Mob soon after, when he was still only 16. He then spent three months at a youth justice residential facility in Palmerston North for stealing food, clothes and alcohol. He has had no stable accommodation since then other than prison, which has been his primary home since he was 17. His mother still lives in Australia, but he has occasional telephone contact with her.[20] When asked by the cultural report writer to use three words to describe his upbringing, Mr Nuku replied:(a) Unexpected — only because of all the things I wanted to be, I'm that and more. [Referring to his gang-related aspirations].(b) Family — I need to work on my family. It's not as tight knit as other people I've seen with their family. I'm not that close with mine as I've seen with other people.(c) Love — I need to find it. Over the years I've been filled with hate. I thought that was the attitude to have, being a part of gangs.[21] In summary, Mr Nuku's upbringing was characterised by severe hardship and disadvantage. Leaving aside other potential contributing factors such as his attention deficit hyperactivity disorder, Mr Nuku's formative years bore all the common predictors of a swift progression to increasingly lengthy periods of incarceration — serious deprivation (emotional, cultural and financial), exposure to violence and gang culture from an early age, failure at school, truancy, living rough, lack of belonging, hopelessness, gang membership, anger and violence. This entirely predictable progression has played out in Mr Nuku's case, as we now summarise.Previous offendingAge 17[22] As noted, Mr Nuku was first sentenced to imprisonment at the age of 17. This was for driving while disqualified and at a dangerous speed, unlawfully taking a motor vehicle and common assault. Three months later, he received further sentences of imprisonment for breaching his release conditions, failing to stop, burglary, driving while disqualified, and shoplifting. Four months after that, he received further sentences of imprisonment for driving offences, petty theft, unlawfully taking a motor vehicle, speaking threateningly and wilful damage (graffiti). Three days before his 18th birthday, he committed wilful damage for which he was later sentenced to a further cumulative term of imprisonment.Age 18[23] On 2 December 2010, Mr Nuku was sentenced to a further eight months' imprisonment for various offences, most of which were committed on 22 October 2010 — two charges of unlawfully taking a motor vehicle, driving while disqualified, driving with excess breath alcohol, driving recklessly, burglary, theft, possession of cannabis and escaping lawful custody.Age 19[24] On 10 June 2011, Mr Nuku was sentenced to a further two years and four months' imprisonment on three charges of burglary.Age 21[25] Shortly after his 21st birthday, Mr Nuku assaulted a prison officer for which he received a further cumulative sentence of one month and 12 days' imprisonment.Age 22[26] On 20 May 2014, Mr Nuku was sentenced to a further two years and three months' imprisonment on four charges of burglary, driving while disqualified,breaching release conditions and failing to answer court bail. We note that Mr Nuku became a patched member of the Mongrel Mob during this year.[27] On 30 June 2015, Mr Nuku received a further cumulative sentence of nine months' imprisonment for assault with intent to injure of a fellow prisoner.Age 23 — first strike offence[28] On 24 February 2016, Mr Nuku received a further sentence of five years and nine months' imprisonment for wounding with intent to cause grievous bodily harm, which was to be served cumulatively on his existing cumulative sentences totalling three years' imprisonment.17 This offending involved Mr Nuku and another inmate assaulting a fellow prisoner in the exercise yard. Mr Nuku received his stage-one warning at this time and was moved to maximum security at Auckland Prison where he remains.Age 24 — second strike offence[29] On 19 October 2016, Mr Nuku and various other prisoners acted in concert to attack prison officers with sharpened implements. He was sentenced for this offending on 3 November 2017 to a further cumulative sentence of three years and 10 months' imprisonment.18 He received his final (stage-two) warning upon conviction for this offending. It was following this attack that he switched his allegiance from the Mongrel Mob to the Killer Beez.Age 25 — third strike offence[30] On 26 September 2018, Mr Nuku was sentenced to preventive detention with a minimum period of imprisonment of seven years on two charges of wounding with intent to injure arising out of separate incidents in which he assaulted two fellow prisoners with a shank (in October and November 2017).1917 R v Nuku [2016] NZHC 254.18 R v Pani-Marsden [2017] NZHC 2696.19 R v Nuku [2018] NZHC 2510.Age 27 — second third strike offence[31] As noted, the present offending occurred the day after Mr Nuku turned 27, for which he was sentenced to a further term of preventive detention with a minimum period of imprisonment of 14 years.20Was the order requiring Mr Nuku to serve a minimum of 14 years' imprisonment manifestly unjust?[32] The three strikes legislation was intended to target the worst repeat violent and sexual offenders.21 The idea was to create a three-stage regime of escalating consequences in the expectation that the warnings given at each stage would serve to deter further serious violent and sexual offending. It was expected that community protection from this type of offending would thereby be achieved through the mechanism of deterrence.[33] As we have seen, Mr Nuku progressed quickly through the stages, achieving his stage-one warning at 23, his stage-two warning at 24 and his stage-three sentence at 25, all for violent offending committed while in prison. The sentence imposed for this latter offending, preventive detention, is the most severe sentence available in the sentencing hierarchy and means he will be detained in prison indefinitely. He will not be released unless and until the Parole Board is satisfied he no longer poses a risk to the safety of the community. The need to protect the community at large is met by this sentence, including the seven-year minimum period of imprisonment imposed.[34] As Miller J observed in the context of Mr Nuku's earlier appeal, these somewhat unusual circumstances do not fit the paradigm case for which the legislation was enacted.22 In short, prior to the commission of the index offending, all three stages had been completed, the deterrent threat of a further, even lengthier, term of imprisonment had been spent and the sentencing purpose of community protection had been met by the imposition of the first sentence of preventive detention coupled with the order that he serve a minimum period of seven years' imprisonment. Mr Nuku's20 High Court judgment, above n 3.21 The legislative history of the three-strikes regime is reviewed in some detail by the Supreme Court in Fitzgerald v R [2021] NZSC 131.22 Nuku v R [2019] NZCA 25, at [13].risk to the safety of the community has not materially changed since that sentence was imposed.[35] In any event, deterrence has clearly not worked as intended in Mr Nuku's case. From the age of 17, he has been repeatedly sentenced to increasingly lengthy sentences of imprisonment. The stage-one warning he received in February 2016 coupled with a sentence of five years and nine months' imprisonment cumulative on an existing sentence of imprisonment did not deter him from committing his stage-two offending eight months later, in October 2016. The stage-two final warning given on 3 November 2017 and the further cumulative sentence of three years and 10 months' imprisonment did not deter him from committing his stage-three offence less than three weeks later, on 23 November 2017. There is no rational basis to conclude that the 14-year non-parole period will serve a useful deterrent purpose in Mr Nuku's case.[36] We agree with the Judge that, had it not been for the three strikes legislation, a sentence of 10 years and six months' imprisonment would be sufficient to serve the other relevant purposes of sentencing — holding Mr Nuku accountable for the harm done to the victim and the community by the offending, promoting in him a sense of responsibility for and acknowledgement of that harm, providing for the interests of the victim and denunciation of the offending. Indeed, for the reasons that follow, we consider a lesser sentence would have been justified as being sufficient to meet these purposes, particularly taking account of Mr Nuku's seriously disadvantaged personal and cultural background that contributed to the offending and his acceptance of responsibility by his early guilty plea.[37] The Judge summarised Mr Nuku's disadvantaged background as involvingcultural disconnectedness, whānau dysfunction, lifestyle dysfunction, gang affiliation, alcohol and drugs, care and protection, youth justice, early entry into the criminal justice system and institutionalisation.23 The Judge accepted that these factors contributed to Mr Nuku's offending but only allowed a discount of six per cent in arriving at the indicative sentence of 10 years and six months' imprisonment.23 High Court judgment, above n 3, at [28].Given the presence of these factors to such a high degree, we consider a discount of 15 per cent would be warranted, in line with other recent decisions of this Court.24[38] While not challenged, the uplift of 12 months for Mr Nuku's previous offending arguably involved an element of double counting because it had already been taken into account as an aggravating factor in fixing the starting point of 13 years' imprisonment.25 It is also questionable whether a further uplift for the previous offending was warranted in circumstances where the relevant sentences had already been effectively uplifted by the operation of the three-strikes regime. We observe that the further uplift applied by the Judge resulted in the adjusted starting point being set at the highest possible level for this offence of 14 years.[39] While we agree with Ms Priest, for Mr Nuku, that it is arguable a full 25 per cent discount ought to have been allowed for the early guilty plea, we consider that, given the overwhelming evidence against Mr Nuku, the lesser discount of 20 per cent adopted by the Judge was in range.[40] For these reasons, we consider the indicative finite sentence adopted by the Judge of 10 years and six months' imprisonment was stern, if not excessive. Adjusting it only in respect of the increased discount for personal and cultural mitigating factors would reduce the indicative finite sentence by an additional 15 months to nine years and three months' imprisonment. If the 12-month uplift for previous convictions was removed and the full 25 per cent discount allowed for the early guilty plea, the indicative finite sentence would be seven years and nine months' imprisonment.26[41] The Judge did not refer to s 89 of the Act which provides that the minimum period of imprisonment with a sentence of preventive detention must be the longer of the minimum period required to reflect the gravity of the offence or required for the purposes of the safety of the community in light of the offender's age and risk24 See Waikato-Tuhenga v R [2021] NZCA 503; Woodstock v R [2020] NZCA 472; and Carr v R[2020] NZCA 357.25 High Court judgment, above n 3, at [18].26 Using the new two-step sentencing methodology in Moses v R [2020] NZCA 296, [2020] 3 NZLR 583. Katz J had used the previous methodology available at the time: compare Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.posed at the time of sentencing.27 Mr Barr, for the Crown, submits that the Judge must have regarded 14 years as being required for this latter purpose, in terms of s 89(2)(b).[42] We do not accept this submission. The Judge expressly stated that "in the absence of the three strikes regime", she would have imposed a minimum non-parole period of seven years (two thirds of 10 years and six months' imprisonment).28 If she had considered that a minimum period of imprisonment of 14 years would have been required in any event in terms of s 89(2)(b), she would have stated this would have been imposed irrespective of the three strikes regime. The question of whether the imposition of a 14-year minimum period of imprisonment would be manifestly unjust would not arise and the Judge would not have devoted four paragraphs of her judgment to addressing this issue.[43] In any case, we are satisfied a minimum period of seven years' imprisonment would have been sufficient for the purposes of the safety of the community in terms of s 89(2)(b). This conclusion is consistent with the sentence imposed by Downs J for Mr Nuku's first third-strike offending, which was affirmed on appeal to this Court — preventive detention with a minimum period of imprisonment of seven years.29The present offending was similar and occurred a comparatively short time later. Unsurprisingly, the relevant risk assessment at the time of sentencing was unchanged.[44] The question is then whether the minimum period of imprisonment of 14 years imposed in combination with the sentence of preventive detention was manifestly unjust. The Judge considered that all relevant purposes of sentencing would be served by a sentence of 10 years and six months' imprisonment with a minimum non-parole period of seven years.30 For the reasons given, it is arguable that a finite sentence of seven years and nine months' imprisonment would have sufficed. Either way, the disparity in the length of the minimum period of imprisonment is gross — being double. The 14-year minimum period of imprisonment imposed is also significantly longer than any justifiable finite sentence and we do not consider it can be justified. To impose it would mean Mr Nuku would be treated in the same way as an offender27 Sentencing Act, s 89(2).28 High Court judgment, above n 3, at [35].29 R v Nuku, above n 2; aff'd Nuku v R, above n 2.30 High Court judgment, above n 3, at [35].who had no personal mitigating factors reducing their culpability and had not accepted responsibility or pleaded guilty at an early stage.[45] It is unfortunate that Mr Nuku was exposed to the negative influences of imprisonment from when he was very young, only 17. It is well-established that functions of the brain such as impulse control and resistance to peer influence continue to develop in young men well into their twenties.31 Mr Nuku was 27 at the time of sentencing. Apart from supervision in the Youth Court, he has never received a rehabilitative sentence and it appears he has not had the benefit of any form of treatment, counselling or other assistance to address the causes of his offending. It would be counterproductive, and contrary to the public interest, to impose a minimum period of imprisonment on a relatively young man like Mr Nuku that is so crushing as to remove all hope of rehabilitation and eventual reintegration. As it stands, he has no prospect of being able to apply for parole until he is in his early forties, irrespective of the outcome of any rehabilitative efforts made by him in the meantime. By then, he will have spent the better part of 25 years in prison.[46] We conclude that the minimum period of imprisonment of 14 years is manifestly unjust in all the circumstances. Given our conclusion that the maximum justifiable finite sentence could not exceed 10 years' imprisonment, we consider that a minimum period of imprisonment of this duration should be substituted.Result[47] The appeal against sentence is allowed.[48] The minimum period of imprisonment of 14 years is set aside.[49] A minimum period of imprisonment of 10 years is substituted.[50] The sentence of preventive detention is confirmed.31 For a useful discussion of this topic, see Andrea Păroşanu and Ineke Pruin "Young adults andthe criminal justice system" [2020] NZLJ 296.Solicitors:Crown Law Office, Wellington for Respondent