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Nelson v Police

Nelson v Police

Case [2019] NZHC 2434 23 September 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000320

[2019] NZHC 2434

BETWEEN
JOHVAN NELSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 September 2019

Appearances:

D Taumihau for the Appellant T Stuart for the Respondent

Judgment:

23 September 2019

ORAL JUDGMENT OF HINTON J

Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland

NELSON v POLICE [2019] NZHC 2434 [23 September 2019]

Introduction

[1] Mr Nelson was sentenced by Judge Gibson in the Auckland District Court on 9 July 2019 on 15 charges, basically amounting to a lengthy petty crime spree:

(a)burglary;1

(b)unlawfully taking a motor vehicle;2

(c)possession of a utensil for cannabis (x 2);3

(d)possession of cannabis (x 2);4

(e)driving while disqualified;5

(f)failing to carry out obligations in relation to a computer search;6

(g)unlawfully in a building;7

(h)wilful damage;8

(i)unlawfully uses a document for a pecuniary advantage (x 2);9

(j)unlawfully in an enclosed yard;10

(k)shoplifting (under $500);11 and

(l)receiving property (over $1,000).12

1      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2      Section 226(1). Maximum penalty seven years’ imprisonment.
3      Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment.
4      Section 7(1)(a) and 7(2). Maximum penalty three months’ imprisonment.
5      Land Transport Act 1998, ss 31(1)(a) and 32(3). Maximum penalty three months’ imprisonment.
6      Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
7      Summary Offences Act 1981, s 29(1)(a). Maximum penalty three months’ imprisonment.
8      Section 11(1)(a). Maximum penalty three months’ imprisonment.
9      Crimes Act 1961, s 228(1)(b). Maximum penalty seven years’ imprisonment.
10     Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months’ imprisonment.
11     Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
12     Sections 246 and 247(a). Maximum penalty 10 years’ imprisonment.

[2] Judge Gibson sentenced Mr Nelson to 23 months’ imprisonment with leave to apply for home detention. Mr Nelson appeals his sentence on the grounds that the starting point was excessive, there was insufficient credit given for mitigating features, particularly youth and mental impairment, and the Judge failed to impose the least restrictive outcome appropriate. Mr Nelson is 22 years old.

[3]The respondent submits the sentence was appropriate.

Background

[4]There are four distinct sets of offending.

First set – 3 January 2019 offending

[5] The first set relates to unlawfully taking a motor vehicle, possession of cannabis and a pipe, driving while disqualified, and failing to comply with obligations in relation to a computer search. On 3 January 2019, Mr Nelson obtained access to an insecure vehicle and drove it away. He was caught by Police at another address. They conducted a warrantless search and found cannabis and a pipe. During the search, Police requested Mr Nelson’s pin code for his mobile phone and he refused. The Police also found the keys for the stolen car.

Second set – 24 and 25 January 2019 offending

[6] The second set of charges relates to the unlawfully in a building, possession of…

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 v Police

Details

AGLC: Nelson v Police [2019] NZHC 2434
Case: [2019] NZHC 2434
Decision Date: 23 September 2019

CaseChat Overview and Summary

Nelson appealed against his sentence imposed by Judge Gibson in the Auckland District Court, arguing that the starting point was excessive, there was insufficient credit given for mitigating features such as his youth and mental impairment, and the Judge failed to impose the least restrictive outcome appropriate. The respondent submitted that the sentence was appropriate. The High Court found that the starting point adopted by the Judge was too high, and that the discount for mitigating features was too low. The Court found that the appropriate starting point would be 14 months’ imprisonment, and that a discount for youth and mental impairment of 20 per cent was appropriate. The Court also found that a sentence of intensive supervision and community work would not be the least restrictive outcome available. The Court substituted the sentence of one year and 11 months’ imprisonment for a sentence of one year and five months’ imprisonment, and allowed the appeal. The Court encouraged Mr Nelson to do his best to promote an application for home detention.

The final orders made by the Court were that the appeal was allowed, and the sentence of one year and 11 months’ imprisonment was substituted for a sentence of one year and five months’ imprisonment. The Court also encouraged Mr Nelson to do his best to promote an application for home detention. The Court thanked counsel for their submissions, which it found very helpful.

Orders