Nathan v Police - [2018] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CRI-2018-419-000016 [2018] NZHC 1740

BETWEEN
PERE NATHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 July 2018

Appearances:

J Tarrant for the Appellant M Dillon for the Respondent

Judgment:

13 July 2018

ORAL JUDGMENT OF POWELL J

[Appeal against Sentence]

Solicitors:
Grantham Law, Hamilton Almao Douch, Hamilton

Counsel:
J Tarrant, Hamilton

NATHAN v NEW ZEALAND POLICE [2018] NZHC 1740 [13 July 2018]

[1] Pere Nathan pleaded guilty to a number of serious domestic violence charges. The first group of charges to which he pleaded took place in December 2016. After having accepted a sentence indication and pleading guilty to those charges he then committed further offences in January 2018 prior to having been sentenced on the first set of charges. In total Mr Nathan was sentenced to a total term of two years and nine months’ imprisonment.1 He appeals against the sentence imposed, and in particular the sentence imposed in respect of the December 2016 offences on the basis that the sentencing Judge, his Honour Judge Connell, gave an insufficient credit for Mr Nathan’s guilty plea to those offences.

Background

[2] The December 2016 offending commenced when on Wednesday 7 December, Mr Nathan’s partner the complainant arrived at her home. Although she and Mr Nathan had been in a relationship for about six years and have five children together, they did not habitually live at the same address. As the complainant arrived, she saw Mr Nathan angrily awaiting her in the driveway.

[3] Mr Nathan forced the complainant into the back of the car and drove her to her mother’s address. There he tried to drag her out and punched her in the face approximately 20 times. She tried to block these punches without success, and lost consciousness for an unknown amount of time.

[4] Mr Nathan then drove the complainant around various locations before stopping and punching her a further ten or so times in the face. Again the complainant tried to shield her face, but Mr Nathan pulled her hand away to get a clean punch to her face. After punching her, he attempted to drag her out of the car to force her to walk home. For this offending he was charged with injuring with intent to injure2 and assault with intent to injure.3

1      Police v Nathan [2018] NZDC 4717.
2      Crimes Act 1961, s 189(2). The maximum penalty is five years’ imprisonment.
3      Section 193. The maximum penalty is three years’ imprisonment.

[5] As a result of this attack, the complainant suffered a black eye and bruising and, as noted, lost consciousness during the first assault.

[6] Four days later, on Sunday 11 December, the complainant left her phone powered off and went to sleep. Mr Nathan turned it on and read her messages. What he saw must have enraged him as he woke the complainant up, accused her of cheating and threw her onto the floor. Fearful,…

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 Nathan v Police

Details

AGLC: Nathan v Police [2018] NZHC 1740
Case: [2018] NZHC 1740
Decision Date: 13 July 2018

CaseChat Overview and Summary

Pere Nathan appeals against the sentence imposed by the District Court in relation to domestic violence charges committed in December 2016 and January 2018. The appeal focuses on the sentence given for the December 2016 offences, specifically that the sentencing Judge gave insufficient credit for Nathan’s guilty plea, resulting in a manifestly excessive sentence. Nathan was sentenced to a total term of two years and nine months' imprisonment, with two years and five months for the December 2016 offences and an additional four months for the January 2018 offences.

The court was required to determine whether the sentence imposed was manifestly excessive due to insufficient credit being given for Nathan's guilty plea. It was noted that Judge Connell had provided a discount of four months for the guilty plea, which was approximately 12 per cent of the total sentence, rather than the full 25 per cent discount that was available at the time of sentencing. This discrepancy raised the question of whether the error in the discount led to a manifestly excessive sentence.

The court found that Judge Connell had indeed erred by not applying a full 25 per cent discount for the guilty plea. The court further concluded that this error resulted in a manifestly excessive sentence, as a full discount would have resulted in a sentence of two years and one month for the December 2016 offences, compared to the two years and five months imposed. The court held that despite the possibility of a higher starting point, the starting point agreed upon by two experienced District Court Judges was appropriate, and there was no reason to depart from the starting point given in the sentence indication.

The appeal was allowed, and the sentence for the December 2016 offences was reduced to two years and one month's imprisonment, while the sentence for the January 2018 offences remained unchanged at four months' imprisonment, to be served cumulatively with the sentence for the December 2016 offences, resulting in an overall sentence of two years and five months imprisonment.

Orders