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Stead Nuku v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 592 of 2018

    Decided On, 28 February 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE MILLER
    By, THE HONOURABLE MR. JUSTICE SIMON FRANCE & THE HONOURABLE MR. JUSTICE PETERS

    For the Appellant: A.S. Bloem, Advocate. For the Respondent: JEL Carruthers, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Nuku was sentenced to preventive detention for stabbing two fellow prisoners, on separate occasions, with a home-made knife or shank.[1] In each case the charge, to which he pleaded guilty, was wounding with intent to injure.[2]

[2] These were third-strike offences, meaning that the maximum sentence applied and the two sentences must be imposed concurrently.[3] But for that Downs J would have imposed a determinate sentence of five years and one month’s imprisonment. That calculation is not challenged. The Judge held however that the maximum sentence of seven years imprisonment was not manifestly unjust. He would have imposed that sentence had he not opted for preventive detention.

[3] Mr Nuku appeals, saying that preventive detention was unwarranted. He sensibly abandoned an argument that the maximum sentence would also be manifestly unjust. His grounds come down to this: his strike offending has all occurred in prison, where he is subject to influences that encourage violence as a response to slights, and his reoffending risk on release into the community is not high enough to warrant preventive detention.

[4] We think the Judge was correct, and we can explain why quite shortly.

Circumstances of the offending

[5] The facts of the instant offences are not in dispute. We adopt the Judge’s summary:

[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 had taken his CD player. And, you had contemplated a different type of attack, in which you would have stabbed the victim “through the eye”.

[10] Less than a month later, you approached another prisoner from behind. Again, you had a metal shank. You stabbed the victim with it repeatedly. While you did so, another prisoner punched and kicked the victim. You stabbed the victim not fewer than 12 times. You inflicted seven wounds to his back; four to his arm; and one behind his ear. You stopped only when prison officers began to lock-down prisoners. You told the writer of the pre-sentence report the victim had taken your biscuits, hence the attack.

[6] The previous strike offences were very similar, although the first one did not involve a weapon. Again, we adopt the Judge’s summary:

[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: 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”. All this you already know.

[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. The Judge made this sentence cumulative on that imposed by Woolford J.

[7] As this narrative shows, there is a pattern to Mr Nuku’s violent offending. He says he does not go looking for trouble but he responds violently when challenged and then “I go for maximum damage”. That is evidently why he uses a weapon. He says he finds it necessary to behave in this way in the maximum-security environment in which he is detained.

Personal circumstances

[8] Mr Nuku was aged 26 at sentencing and 23 when he committed the firststrike offence in 2015. We were told that were he to serve the maximum sentence instead of preventive detention his sentence would expire in 2025.

[9] He has some 68 previous convictions in New Zealand, including several for violent offending or disobedience to court orders or release conditions, but those committed in prison are his most serious. Most of his relevant convictions were for property offences such as burglary. We note indications that he has committed other offences for which he was not charged; notably, he self-reported that at the age of 14 he had stabbed his mother’s partner.

[10] As the Judge put it, Mr Nuku’s background is unremarkable but depressing. He was born into a gang family, experienced neglect and abuse, and followed in his father’s footsteps as a Mongrel Mob member before joining the Killer Beez in prison. He has limited family support and no connection to his Maori heritage.

[11] The pre-sentence and health assessors’ reports paint a picture of a man who is committed to his gang culture, content to remain in prison, and uninterested in rehabilitation. He has no mental disorder that might mitigate his sentence. His risk of violent reoffending in future is assessed as high. It is especially so in a custodial setting, where he is heavily influenced by his gang associates.

[12] There are some indications that Mr Nuku may change his ways in future as he matures. At that point he will be able to undertake rehabilitation programmes that require some commitment of the prisoner.

The appeal

[13] Mr Nuku does not fit the statutory paradigm. His reoffending risk is highest while he is in prison, but his reoffending risk must be assessed at sentence expiry date, on the assumption that he will be released into the community unless sentenced to preventive detention. As noted, his counsel, Mrs Bloem, argued that in the community his risk is much lower, sufficiently so to preclude preventive detention. She emphasised that he has some family support and capacity to form relationships, which may serve as protective factors and submitted that his violent offending, while grossly excessive, is a response to what he perceives as provocation.

[14] We do not accept this submission. We consider that without any serious attempt at rehabilitation on Mr Nuku’s part his risk of serious violent reoffending at sentence expiry date will remain high. Assuming he were to be released, he is likely to return to his past pattern of property offending, which always carries a risk of violence. He is also likely to retain his gang associations. We observe that the risk assessment tools employed by the health reporters all point to a high risk. Their reports identify his relevant characteristics as an antisocial personality, impulsivity, unwillingness to accept responsibility, disregard for others and absence of remorse.

[15] There are indications that Mr Nuku recognises the need for rehabilitation, but we are not persuaded that he will commit to it during the term of a determinate sentence. It requires a sustained commitment to a series of programmes, beginning with some that would reduce his risk profile sufficiently to allow him to participate in others. Mr Nuku himself seems determined to make the points that he sees no need to change his ways and imprisonment is no deterrent for him. That being the position at this time, it is impossible to say that Downs J was wrong to impose preventive detention.

[16] Mrs Bloem recognised that Mr Nuku may continue to offend while in prison. We agree. She submitted that release will lower that risk and accordingly it is in his and the community’s interests.

[17] There are three answers to that submission. The first is that the test is whether he is likely to reoffend violently at sentence expiry date. For the reasons just given, we think that he is unless and until he

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commits to rehabilitation. The second is that it also is in the interests of the community to deter violent offending within prisons. [18] The third is that Downs J considered that preventive detention will provide an incentive to undertake rehabilitation while Mr Nuku is still in prison. We agree that he needs that incentive, and there are indications in the material before us that preventive detention may provide it. His expressed attitudes notwithstanding, it is plain that he would prefer not to be in prison. Result [19] The appeal is dismissed. -------------------------------------------------------------------------- [1] R v Nuku [2018] NZHC 2510. [2] Crimes Act 1961, s 188(2). [3] Sentencing Act 2002 ss 86D(3),(6). Downs J did not make the sentence cumulative upon Mr Nuku’s existing sentence. We did not hear argument on the question whether s86D precludes that course of action.
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