Nandan v Police - [2024] NZHC 505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000046

[2024] NZHC 505

BETWEEN
SELVIN SANGESH NANDAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 March 2024

Appearances:

L Ameye for the Appellant

R van Boheemen for the Respondent

Judgment:

12 March 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 12 March 2024 at 3 pm

Registrar/Deputy Registrar Date:

Solicitors/counsel:
L Ameye, Auckland
Meredith Connell, Auckland

NANDAN v NEW ZEALAND POLICE [2024] NZHC 505 [12 March 2024]

[1] Selvin Nandan appeals his sentence of three years’ imprisonment imposed by Judge K Maxwell in the Auckland District Court on 16 January 2024.1

[2] The sentence was for offending occurring on five separate dates from 2021 to 2022.

[3]The submissions for Mr Nandan on appeal are:

(a)the starting point adopted by the Judge was too high;

(b)the uplift for the balance of the offending was too severe and the Judge failed to consider the principle of totality;

(c)further discounts were available, especially for addiction; and

(d)the order of applying discounts and uplifts was not consistent with the two step approach envisaged in Moses and this led to an error in the sentence.2

[4] The respondent’s position is that the District Court Judge did not err as alleged by Mr Nandan and the end sentence of three years’ imprisonment is not manifestly excessive.

Summary of offending

[5] The Judge set out a summary of the offending which I accept is accurate by reference to the various summaries of facts. However, some of the Judge’s summary does not relate the facts to the particular charges. Ms van Boheemen, counsel for the respondent, has included references to the various charges in the summary she sets out in her submissions. I accept her summary is accurate and I reproduce it (with some minor amendments) rather than adopting the Judge’s summary.

1 New Zealand Police v Nandan [2024] NZDC 629.
2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

(a) 22 July 2021: In the afternoon, Mr Nandan made repeated attempts to enter a number of properties in Goodwood Heights. In relation to the first house, he attempted to gain entry by opening a latched window (unlawfully in an enclosed yard).3 The first victim was at home with her children.

The first victim’s neighbour (the second victim) observed the defendant in the first victim’s yard. Mr Nandan raised a brick at the second victim in a threatening manner (behaves threateningly).4 The second victim retreated.

Mr Nandan climbed over another fence and entered the outside of the property of the third victim (unlawfully in an enclosed yard).5 The third victim chased the defendant off his property.

About five minutes later, Mr Nandan entered another property on the same street in Goodwood Heights. The fourth victim was asleep on a couch inside his house at the time. Mr Nandan entered the house through sliding doors while…

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 Nandan v Police

Details

AGLC: Nandan v Police [2024] NZHC 505
Case: [2024] NZHC 505
Decision Date: 12 March 2024

CaseChat Overview and Summary

Selvin Nandan appeals against his sentence of three years’ imprisonment imposed by Judge K Maxwell in the Auckland District Court on 16 January 2024. Nandan’s offending spanned from 2021 to 2022 and included charges of burglary, theft, driving offences, and breaches of probation orders. The appeal raises several issues: whether the starting point for the sentence was too high, whether the uplifts for the balance of the offending were too severe, whether further discounts were available, and whether the order of applying discounts and uplifts was correct. The respondent argues that the District Court Judge did not err and that the sentence was not manifestly excessive.

The court first examined the starting point for the lead charge of burglary, which was set at two years and four months. The court found that this was not inconsistent with appellate authority, considering factors such as the nature of the premises, the extent of the loss, and premeditation. The court also reviewed the uplifts for the remaining offending, concluding that while some uplifts were at the higher end, they were justified by the nature and severity of the offending. The court further assessed the discounts given for a guilty plea and rehabilitative efforts, finding that they were appropriate given the information available to the Judge. Finally, the court addressed the order of applying discounts and uplifts, confirming that the Judge followed the correct methodology as outlined in Moses v R.

Ultimately, the High Court found that the sentence was not manifestly excessive and dismissed the appeal. The court acknowledged the severity of Nandan’s offending but concluded that the Judge’s sentencing process was sound, and the final sentence was within an acceptable range.

Orders