Nahora v The Queen - [2021] NZHC 189

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-1

[2021] NZHC 189

RENEE MARIA NAHORA

v

THE QUEEN

Hearing: 16 February 2021

Appearances:

W R Hawkins for the Appellant L Marshall for the Respondent

Judgment:

17 February 2021

JUDGMENT OF COOKE J

[1] Ms Nahora appeals against an end sentence of three years and five months’ imprisonment following the entry of guilty pleas to the following charges:1

(a)Aggravated burglary;2

(b)Shoplifting under $500;3

(c)Failure to answer District Court bail;4

1      R v Nahora [2020] NZDC 25566.
2      Crimes Act 1961, s 232(1)(a).
3      At ss 219 and 223(d).
4      Bail Act 2000, s 38.

NAHORA v R [2021] NZHC 189 [17 February 2021]

(d)Possession of methamphetamine utensils;5

(e)Common assault.6

[2] The grounds of appeal are that the District Court Judge erred by adopting a starting point that was excessive and failing to give the proper discount for mitigating features and that the end sentence was manifestly excessive. The appellant submits that the appropriate end sentence would have been in the range of two years and two years three months’ imprisonment.

[3] The appeal is governed by s 247(b) of the Criminal Procedure Act 2011,7 and to be determined in accordance with s 250 of that Act. Ms Nahora’s half-sister and co-offender, Ms Sulusi has successfully appealed her sentence in this Court in Sulusi v New Zealand Police.8 The key issue on appeal is whether Ms Nahora’s sentence should be reduced in much the same way as her sister’s has. The appeal is not opposed by the respondent such that the main issue is what the appropriate sentence should be.

Relevant offending

[4] The aggravated burglary charge is the lead charge, and relates to the victim’s car, wallet and hand bag. The other charges were dealt with by minor concurrent sentences and discharges.

[5] Ms Nahora had earlier given the victim of the offending $7,000 in cash to hold for safekeeping. The victim subsequently told Ms Nahora that the cash had been stolen. Ms Nahora thought this claim was false. She repeatedly requested the victim to return the cash.

[6] On 1 March 2019 Ms Nahora demanded over the phone that the victim return the money, or her vehicle would be taken as “collateral”. The victim again said the money had been stolen.

5      Misuse of Drugs Act 1975, ss 13(1)(a) and (3).
6      Crimes Act 1961, s 196.
7      Criminal Procedure Act 2011, s 247(b).
8      Sulusi v New Zealand Police [2020] NZHC 3314.

[7] On 2 March 2019, Ms Nahora and Ms Sulusi, as well as two associates, arrived at the victim’s address at about 11:30 am. One of the associates, a male, was wearing a Mongrel Mob patch. The victim and a friend were asleep in the lounge at the time. Ms Nahora was able to gain access into the house through an open window and by then unlocking the front door. She then retrieved a firearm from…

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 Nahora v The Queen

Details

AGLC: Nahora v The Queen [2021] NZHC 189
Case: [2021] NZHC 189
Decision Date: 17 February 2021

CaseChat Overview and Summary

Ms Nahora appeals against the end sentence of three years and five months' imprisonment imposed after she pleaded guilty to charges including aggravated burglary and possession of methamphetamine utensils. Ms Nahora contends that the District Court Judge erred by adopting a starting point that was excessive and failing to give the proper discount for mitigating features and that the end sentence was manifestly excessive. The appellant submits that the appropriate end sentence would have been in the range of two years and two years three months' imprisonment. The appeal is not opposed by the respondent, so the main issue is what the appropriate sentence should be.

The High Court found that the District Court erred by adopting a starting point that was excessive. The starting point adopted by the District Court was six years' imprisonment, which was significantly higher than the starting point of four and a half years' imprisonment regarded as appropriate in comparable cases. The Court found that the starting point and end sentence were manifestly excessive. The Court also found that the District Court Judge erred by failing to give the proper discount for mitigating features. The circumstances justifying a discount were very similar to those of Ms Sulusi, Ms Nahora's half-sister and co-offender, who received a 30 per cent discount on appeal. For that reason, the Court found that Ms Nahora should also receive a 30 per cent discount as her sister to reflect personal and cultural factors. The appeal is allowed and a sentence of two years is substituted for that of three years five months on the aggravated burglary charge.

The Court ordered that the sentences on the other charges are confirmed. The Court also ordered special release conditions, which include attending alcohol and other drug assessments, abstaining from non-prescription drugs, undertaking any further counselling/programmes as directed by the Probation Officer, and not communicating or associating with the victims of the offending without prior written consent of the Probation Officer. The Court did not agree with a condition relating to the consumption of alcohol, as it saw that as an unrealistic expectation post-release.

Orders