Neilson v Police - [2015] NZHC 2502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-250 [2015] NZHC 2502

BETWEEN
ORA NEILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 October 2015

Counsel:

E Priest for Appellant
M Anderson for Respondent

Judgment:

29 October 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 29 October 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Public Defender, Auckland
Meredith Connell

NEILSON v NEW ZEALAND POLICE [2015] NZHC 2502 [29 October 2015]

[1] This is an appeal against sentence. The appellant was sentenced to five years, nine months’ imprisonment by her Honour Judge Cunningham in the Auckland District Court on 3 August 2015. The sentence was in respect of:

(a) one charge of aggravated wounding; (b) one charge of theft; and
(c) one charge of unlawfully getting into a motor vehicle.

[2] He appeals against his sentence on the basis it is manifestly excessive and ought to be reduced. In particular, it was submitted that the Judge erred in relying on the tariff case of R v Taueki.1 And further, if the Judge was correct to apply Taueki, the starting point was excessive because:

(a) the serious injury was erroneously determined to be an aggravating factor; and

(b)blows to the head and use of a weapon were determined to be two separate aggravating factors when they ought to have been treated as single aggravating factor; or

(c) if the above two arguments are not accepted, the starting point was too high compared to comparable cases.

[3] It was further submitted that an uplift of one year was erroneously imposed for the theft charge when it should not have been, as committing the theft was an essential element in the charge of aggravating wounding or, alternatively, if the above argument was not accepted, the one year uplift was excessive.

[4] The appellant also submitted that the probation report should not have been relied on by the Judge because it was completed following a ten-minute stand-down

interview, which was not extensive enough to form a view on the appellant’s

remorse.

The facts

[5] The offending arose out of two separate incidents. The first, and minor incident, was on 21 May when the appellant was found in a stolen car in Huntly. He was drunk at the time. He is charged with unlawfully getting into the motor vehicle.

[6] The more serious offending, and the main subject of this appeal, is the charges of theft and of aggravated wounding. Five days after being found unlawfully in the motor vehicle, the appellant approached and entered a Michael Hill jewellery store in Sylvia Park in Auckland. He was carrying a hammer. He requested to see some jewellery. Before the store employee could respond to his request, he pulled the hammer out and smashed the glass case which housed the jewellery. He took a number of curb chains from the glass case and put them into his bag. The jewellery…

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 Neilson v Police

Details

AGLC: Neilson v Police [2015] NZHC 2502
Case: [2015] NZHC 2502
Decision Date: 29 October 2015

CaseChat Overview and Summary

In Neilson v Police, the appellant, Ora Neilson, appealed against the sentence of five years and nine months' imprisonment imposed by the Auckland District Court. The sentence was in respect of charges of aggravated wounding, theft, and unlawfully getting into a motor vehicle. Neilson argued that the sentence was manifestly excessive and ought to be reduced, contending that the District Court Judge had erred in relying on the tariff case of R v Taueki, and that the starting point was too high compared to similar cases. He also submitted that an uplift of one year for the theft charge was excessive and that the probation report should not have been relied upon by the Judge.

The court found that while Taueki does apply to cases under s 191(1) where the intent is less than to cause grievous bodily harm, it must be applied with caution to reflect the fact that the culpability of an offender who wounds with a lesser intent is less than one who wounds intending to cause grievous bodily harm. The court held that the District Court Judge was correct to apply Taueki to this case, but that it was necessary for the Judge to exercise some caution in doing so. The court also found that although there were probably only two aggravating features present in this case, it still fell within band two, and the District Court Judge was right to select a starting point towards the bottom of that band. However, the court considered that a starting point of six and a half years was excessive, and that a starting point of five years was more appropriate.

In conclusion, the appeal was allowed, and the sentence for the aggravated wounding was reduced to four years and eight months' imprisonment. The sentences for the other offences remain and are to be served concurrently with the sentence on the aggravated wounding charge.

Orders