Nelson aka Electra v The King - [2024] NZHC 1095

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000065/66

[2024] NZHC 1095

BETWEEN
MATTHEW RICHARD NELSON (also

known as PANDORA SADAKO MIA ELECTRA)
Appellant

AND

THE KING

Respondent

Hearing: 6 March 2024

Appearances:

S Taylor for the Appellant R L Mann for the Crown

Judgment:

7 May 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 7 May 2024 at 3.00 pm.

………………………………
Registrar/Deputy Registrar

Solicitors: Hamilton Legal

NELSON (aka ELECTRA) v R [2024] NZHC 1095 [7 May 2024]

[1] Pandora Electra appeals against concurrent sentences imposed in the District Court following her acceptance of a sentence indication given by Judge N D Cocurullo in the Hamilton District Court on 15 September 2022. Ms Electra is a transgender woman who was sentenced under her previous name. I refer to her by her present name in this judgment. Ms Electra was sentenced simultaneously in respect of further charges prosecuted by Police. That serious offending is not in focus on appeal.

[2]The grounds for appeal focus on three aspects:

(a)the starting point identified for charge five (wounding of Ms Electra’s former partner) is said to be too high;

(b)that the Judge erred by not applying credits to reflect cultural factors, remorse, and hardship of incarceration for Ms Electra as a transgender woman; and

(c)the minimum period of imprisonment imposed was either inappropriate or too high.

[3] On the second two issues, Ms Electra asks me to admit on appeal a s 27 cultural report,1 she obtained after sentencing and a letter of remorse she has written. The Crown opposes the admission of these documents.

[4] The effect of the adjustment sought on appeal is that the starting point would be reduced from 12 years 10 months to 11 years 10 months. After further discounts as sought are made, an end sentence of six years and one months’ imprisonment would be reached in contrast to the ultimate sentence of nine years three months imprisonment.

Factual background

[5] On 15 November 2022, following a sentence indication, Ms Electra was sentenced to nine years and three months’ imprisonment with a minimum period of

1 Sentencing Act 2002, s 27.

imprisonment of 60 per cent for three charges of wounding with intent to cause grievous bodily harm.2 These were charges four to six of the seven charges prosecuted by the Crown. The other charges from the Crown concerned:

(a)threatening to kill for which she received nine months’ imprisonment (charge one);

(b)assault with a weapon for which she received 18 months’ imprisonment (charge two);

(c)assault on a person in a family relationship for which she received nine months’ imprisonment (charge three); and

(d)intentional damage for which she received 18 months’ imprisonment (charge seven).

[6] Ms Electra was simultaneously sentenced in respect of six other charges prosecuted by Police.3

[7] Each of the prison sentences are concurrent. The focus of the appeal is therefore on the sentence Ms Electra received for the lead charge of wounding…

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 Nelson aka Electra v The King

Details

AGLC: Nelson aka Electra v The King [2024] NZHC 1095
Case: [2024] NZHC 1095
Decision Date: 7 May 2024

CaseChat Overview and Summary

The appeal before the court concerns a challenge by Matthew Richard Nelson, also known as Pandora Sadako Mia Electra, against the sentences imposed by the District Court. Ms. Electra, a transgender woman, was sentenced under her previous name for multiple charges including wounding with intent to cause grievous bodily harm to her former partner. The appeal focuses on three key issues: the appropriateness of the starting point for the charge of wounding with intent, the consideration of cultural factors and the impact of incarceration for Ms. Electra as a transgender woman, and the appropriateness of the minimum period of imprisonment imposed. The court admitted a cultural report on appeal, which provided additional context about Ms. Electra's background and its potential link to her offending, but declined to admit a letter of remorse submitted after sentencing. On the first issue, the court found that the Judge correctly identified the starting point within band three of Taueki, considering the extreme violence of the attack and other aggravating factors. Regarding the second issue, the court accepted that a modest additional discount should be applied to reflect the personal mitigating circumstances, including the impact of Ms. Electra's gender dysphoria and mental health issues, as well as the greater hardship she faces in prison. However, the court rejected the appeal's submissions that no minimum period of imprisonment should be imposed, or that it should be less than 60 per cent of the sentence. The court concluded that the Judge's assessment, based on the clinical report, adequately justified the imposition of a minimum period of imprisonment to address concerns about Ms. Electra's risk to the community. The appeal against sentence is allowed in part, reducing the sentence to eight years, but the other grounds of appeal are dismissed.

The final order of the court is that the sentence is reduced to eight years of imprisonment, with a minimum period of imprisonment of 60 per cent, to be served concurrently with the other sentences imposed.

Orders