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…

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.

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Details

Case: [2019] NZHC 2114
Decision Date: 27 August 2019

CaseChat Overview and Summary

In Nelson v Police, the appellant, Joseph Nelson, challenged the two-year, three-month prison sentence he received for domestic violence and breaching a protection order. The case was heard in the High Court of New Zealand at Hamilton, and the decision was rendered on 27 August 2019. The key issue before the court was whether the sentence imposed was manifestly excessive, particularly in light of the error made by the sentencing Judge regarding the timing of the offences.

The court examined the legal issues surrounding the appropriate guilty plea discount and the allowance for remorse. It was established that the Judge had made a factual error by stating that the offending occurred in April 2018 instead of October 2018. This error influenced the discount given for the guilty plea, which was set at 10 percent. Nelson argued that the error should result in a higher discount and that the Judge should have made an allowance for his remorse. The court found that while the discount was slightly inadequate, a 15 percent discount was appropriate, and no allowance for remorse was necessary.

In its reasoning, the court noted that a 15 percent discount resulted in a sentence of 25 and a half months, which was very close to the 27-month sentence actually imposed. The court concluded that the Judge could have easily adopted a higher starting point given the severity of Nelson’s violence, particularly the repeated kicking and stomping on the victim's head. Despite the error, the sentence imposed was deemed appropriate. The court dismissed the appeal, holding that the sentence should not be different.

Orders