Neho v The Queen - [2016] NZHC 3082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000343 [2016] NZHC 3082

BETWEEN
SHAYNE MORGAN NEHO

Appellant

AND

THE QUEEN Respondent

Hearing: 12 December 2016

Appearances:

S Thode for Appellant
K Eastwood for Respondent

Judgment:

15 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 December 2016 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

NEHO v R [2016] NZHC 3082 [15 December 2016]

[1] In September this year Judge D Sharp sentenced Shayne Neho in the District Court at Auckland to 12 months’ home detention imposed in respect of offending that mostly occurred in the context of domestic violence against Mr Neho’s then partner; two charges of threatening to do grievous bodily harm, five of male assaults female, one of intimidation, one of sustained loss of traction, one of careless driving and one of breach of community work. Mr Neho appeals the sentence on the ground that it is manifestly excessive as a result of the Judge failing to give adequate allowance to reflect the mitigating factors and the time spent in custody following his arrest. Ms Thode, for Mr Neho, submitted that had appropriate recognition been given to these factors, the end sentence would have been six to seven months’ home detention.

[2] In fixing the end sentence the Judge took a starting point of three years’ imprisonment. He then allowed a 25 per cent discount for Mr Neho’s guilty plea and a further three months for mitigating factors (remorse and efforts at rehabilitation) and the eight months that Mr Neho had spent in custody prior to sentencing. This resulted in a short-term sentence of 24 months’ imprisonment which the Judge commuted to 12 months’ home detention.

[3] There is no challenge to the starting point, which was clearly appropriate for the nature and extent of the offending.

[4] The Judge did not follow the orthodox approach that would have seen a discount for Mr Neho’s guilty plea applied after the allowance for mitigating factors. It is also evident that the composite discount allowed for mitigating factors and time spent in custody was no more than three months, which equates to approximately eight per cent of the three year starting point. The allowance for mitigating factors and time in custody should have been separately identified and then the reduction made for the guilty plea. However, these irregularities will not justify my interfering in the sentence unless I am satisfied that the end result was manifestly excessive.

[5] The usual position under s 82 of the Sentencing Act 2002 is that pre-sentence detention is not taken into account in determining the length of the sentence because

that aspect is taken into account administratively under the Parole Act.1 Where the sentence is to be home detention, however, time spent on remand is not automatically taken into account in calculating an offender’s release date and in Laloni v R the Court of Appeal considered that:2

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 Neho v The Queen

Details

AGLC: Neho v The Queen [2016] NZHC 3082
Case: [2016] NZHC 3082
Decision Date: 15 December 2016

CaseChat Overview and Summary

Shayne Morgan Neho has appealed the sentence imposed on him by Judge D Sharp in the Auckland District Court for various offences, including domestic violence, assault, intimidation, and careless driving. The appeal was based on the claim that the sentence of 12 months’ home detention was manifestly excessive, due to the Judge's failure to adequately consider mitigating factors and time spent in custody prior to sentencing. Counsel for Neho argued that an appropriate sentence would have been six to seven months’ home detention.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the mitigating factors and time spent in custody. The court examined the starting point of the sentence, which was deemed appropriate, and the discount applied for the guilty plea and mitigating factors. It was noted that the Judge did not follow the orthodox approach in applying the discount for the guilty plea, and that the combined discount for mitigating factors and time spent in custody was less than expected. However, these irregularities did not warrant interference unless the end result was manifestly excessive.

The court concluded that the starting point of the sentence was appropriate, and that a discount of three to four months would have been suitable for the time spent in custody, resulting in an adjusted starting point of 32-33 months. The mitigating factors, including efforts at rehabilitation, remorse, and family support, warranted a reduction of two to three months, leading to an end sentence of 21-22 months’ imprisonment. An appropriate sentence of home detention would have been around 11 months. The sentence imposed was within the range available to the Judge and was not manifestly excessive, leading to the dismissal of the appeal.

Orders