Nelson v Police

[2019] NZHC 2114

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000049

[2019] NZHC 2114

BETWEEN

JOSEPH NELSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 August 2019
Counsel:	GA Walsh for Appellant ASC Alcock for Respondent
Judgment:	27 August 2019

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. GA Walsh, Hamilton.

NELSON v POLICE [2019] NZHC 2114 [27 August 2019]

[1]    Mr Joseph Nelson appeals his two-year, three-month prison sentence. It is common ground the Judge made a mistake. Judge M L S F Burnett said the offending occurred in April 2018, when it occurred in October 2018. This influenced the guilty plea discount, which the Judge set at 10 percent on the basis it had taken Mr Nelson “some time” to plead guilty.1 However, the ultimate issue is whether the sentence is manifestly excessive. A sentence appeal may be allowed only when there has been an error and a different sentence should have been imposed.2

[2]    The victim is the defendant’s partner. On the afternoon of 3 October 2018,  Mr Nelson punched her to the face. He did so as he believed she was “flirting” with his cousin. Much more serious violence followed in the early hours of the next morning when the couple argued over car keys.

[3]    Mr Nelson dragged the victim from the porch and then “fly-kicked” her to the head. She fell to the ground. Mr Nelson then repeatedly kicked the victim in the head. She tried to protect herself by covering her head with her arms. Mr Nelson pulled her arms away and continued to kick her to the head. He then stomped once on the victim’s head. And left.

[4]    The victim lost two teeth. She suffered swelling to her face and bruising to an underarm and collar bone. She also suffered “mild concussion”. Both assaults occurred in breach of a protection order.

[5]    Charges were laid 12 October 2018. Mr Nelson pleaded guilty on 10 May 2019 following a plea arrangement. A charge of injuring with intent to cause grievous bodily harm was amended to a charge of injuring with intent to injure. The final constellation of charges involved this charge, a charge of male assaults female (for the punch to the face on 3 October), two charges of breaching a protection order, and driving while disqualified. When Mr Nelson drove away, he was a disqualified driver.

[6]    The Judge adopted a 22-month starting point on the primary charge of injuring with intent and added three months for the rest of the offending. The Judge added a

1      Police v Nelson [2019] NZDC 13217 at [11].

2      Criminal Procedure Act 2011, s 250.

further five months because of Mr Nelson’s bad criminal record. Mr Nelson had five earlier convictions for breaching a protection order and 12 earlier convictions for domestic violence.

[7]    Mr Nelson takes no issue with the starting point or uplifts. He contends the guilty plea discount was inadequate because of the Judge’s mistake about timing.  Mr Nelson also contends the Judge  should have made an  allowance for remorse.  Mr Nelson wrote a short letter to the Court and victim, and had been a model prisoner while remanded in custody before sentencing. Mr Nelson submits his sentence should have been about two years’ imprisonment.

[8]    I accept the Judge’s discount was a little low for the reason Mr Nelson identifies. A discount of about 15 percent was appropriate. A higher discount was not. The pleas were not prompt and Mr Nelson benefited from the plea arrangement. It is clear from the Supreme Court’s decision in Hessell v R the latter is a relevant consideration when assessing guilty-plea discount.3

[9]    The Judge did not err in making no allowance for remorse or rehabilitation. The pre-sentence report was pessimistic. It said Mr Nelson posed a very high risk of harm to intimate partners. Mr Nelson disagreed with aspects of the summary of facts. Nothing exceptional arose in relation to remorse or rehabilitation.

[10]   A 15 percent discount produces a sentence of 25 and a half months’ imprisonment, not 27 months’ imprisonment. The one-and-a-half-month difference, could well be tinkering. In any event, a more significant point arises. The Judge could easily have adopted a higher starting point. Mr Nelson’s violence on 4 October was very serious.

[11]   In Thompson v Police,4 Mr Thompson hit his partner to the head once with a wooden chair. She fell forward onto concrete and suffered facial injuries. The first- instance Judge adopted a two-year starting point. Simon France J said there was “no merit” in the challenge to this; he described the attack as “shameful”. While

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].

4      Thompson v Police [2017] NZHC 3039.

Mr Thompson used a weapon, Mr Nelson’s offending is more serious. He repeatedly kicked his partner to the head, including while she was on the ground. He also pulled her arms away to continue the attack. He also stomped on her head. This cowardly violence could have resulted in life-changing—or life-threatening—injury.

[12]   If Judge Burnett had adopted a 24-month starting point—which would easily be within range—and applied the  same  uplifts  but  discounted  the  sentence  by  15 percent, Mr Nelson would have received a 27-month sentence of imprisonment, the same sentence as that actually imposed by the Judge. So, while the Judge erred, the sentence ought not be different.

[13]The appeal is dismissed.

……………………………..

Downs J