Black v The King - [2023] NZHC 1575

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-000014

[2023] NZHC 1575

BETWEEN
DANIEL BLACK

Appellant

AND

THE KING

Respondent

Hearing: 22 June 2023

Appearances:

K Pascoe for the Appellant

R L Hicklin for the Respondent

Judgment:

26 June 2023

JUDGMENT OF ROBINSON J

[Sentence appeal]

This judgment was delivered by me on 26 June 2023 at 2:30 pm.

Registrar/ Deputy Registrar

Solicitors:
Nicholsons Lawyers, New Plymouth Crown Solicitor, New Plymouth

BLACK v R [2023] NZHC 1575 [26 June 2023]

Introduction

[1] On 17 March 2023 Mr Daniel Black was sentenced1 by Judge Hikaka at the New Plymouth District Court to six months’ home detention, to be followed by six months of post-detention conditions, on charges of assault with intent to injure,2 assault with a weapon3 and theft (over $1,000).4 Mr Black had earlier accepted a sentence indication5 and pleaded guilty to the charges, at which point he was granted bail pending sentence.6

[2] Mr Black also pleaded guilty to one charge of driving while disqualified. Judge Hikaka imposed a $300 fine for that, but did not disqualify Mr Black further.

[3] Mr Black appeals his sentence. Ms Pascoe, counsel for Mr Black, submits the end sentence is manifestly excessive because the Judge erred by failing to properly account for the 359 days Mr Black spent in custody pre-sentencing. Ms Pascoe says that because Mr Black spent six days short of a year in custody prior to sentence he should effectively have been sentenced to time served.

The offending

[4] The Judge accurately set out the background facts in his sentencing notes as follows:

[4] The victim was the owner of a motorbike that he purchased in 2018, it was valued at $20,000. You and the victim knew each other, he used to do repairs for you and the gang that you were associated with.

[5] On 15 September 2021, he and his partner were having an argument about his association with the gang and around the time his partner was leaving, you and another gang member arrived and she said to you and your associate that she knew what you were up to.

[6] So the next day, 16 September around 4 pm, you and another associate went to the address. The victim was working on the bike, you met him at the garage door, he said hello, you punched in the side of the head, he fell to the ground and you told him he was a snitch and that he had been telling his

1      R v Oka (aka Black) [2023] NZDC 5162.
2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
3      Section 202C(1)(a). Maximum penalty five years’ imprisonment.
4      Sections 219 and 223(b). Maximum penalty seven years’ imprisonment.
5      R v Black DC New Plymouth CRI-2021-043-1655, 11 November 2022 (Notes of Judge GF Hikaka on Sentencing Indication).
6      R v Black [2022] NZDC 22598, per Judge Greig.

partner everything. You and your associate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Black v The King

Details

AGLC: Black v The King [2023] NZHC 1575
Case: [2023] NZHC 1575
Decision Date: 26 June 2023

CaseChat Overview and Summary

In this case, Daniel Black appealed his sentence for various charges including assault with intent to injure, assault with a weapon, theft, and driving while disqualified. The appeal centered on whether the sentence imposed was manifestly excessive due to the failure to properly account for the 359 days Mr Black spent in pre-sentence custody. The High Court of New Zealand was tasked with determining if the Judge erred in not granting full credit for the time spent in custody, which could result in Mr Black effectively being sentenced to "time served."

The legal issue before the Court was whether the Judge erred by not adequately considering the 359 days Mr Black spent in pre-sentence custody when determining his sentence. The Court was required to balance the principles of sentencing, including the need for proportionality and the deterrent effect, against the credit for time served. The Court examined the principles and authorities guiding the calculation of credit for time spent in pre-sentence custody, considering the “one for one” and “two for one” approaches. The Court also had to determine if the final sentence was within the acceptable range as per the Sentencing Act 2002.

The Court found that while sentencing is an evaluative exercise, the principles and purposes of sentencing did not require Mr Black to be detained at home for six months in addition to the 12 months he was detained in custody. The Court considered that the end sentence of six months home detention was manifestly excessive because it did not adequately account for the time Mr Black spent remanded in custody. The Court held that Mr Black should effectively be sentenced to "time served." However, considering the three months Mr Black had already spent on home detention, the Court decided to replace the six months home detention with a sentence of three months home detention. The Court quashed the sentence of six months home detention and replaced it with a sentence of three months home detention, while all other aspects of the sentence were to remain unchanged.

The final orders of the Court were to allow the appeal, quash Mr Black’s sentence of six months’ home detention, and replace it with a sentence of three months’ home detention. All other aspects of the sentence, including the six months post detention conditions, were to remain as imposed by the original Judge.

Orders