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 RespondentJudgment:
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…
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- Neilson v Police [2015] NZHC 2502
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- [2015] NZHC 2502
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CaseChat Overview and Summary
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.
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