Solicitors:
D George, Public Defence Service, Auckland: Dana.George@justice.govt.nz
S McMullan, Meredith Connell, Auckland: sam.mcmullan@meredithconnell.co.nz

NELSON V NEW ZEALAND POLICE HC AK CRI-2012-404-211 [4 September 2012]

Introduction

[1] Nathan Sonny Nelson pleaded guilty to one charge of burglary, two charges of receiving stolen property, two charges of driving while disqualified, one charge of receiving stolen property, two charges of resisting a Police officer, one charge of escaping from lawful custody, and one charge of breaching a sentence of intensive supervision. The burglary was committed while the appellant was on bail on the driving and receiving charges.

[2] When the appellant appeared for sentence in the District Court at Auckland, Judge Everitt described him, having regard to his offending and his record (at the age of 45) of 84 previous convictions, as “a professional criminal, a dealer in stolen property, a thief and a burglar.”1

[3] The Judge considered a starting point of three years and six months' imprisonment to be appropriate on the burglary charge, bearing in mind the appellant's 19 previous burglary convictions. He uplifted the sentence by another 8 months to take account of the totality of the offending. Making due allowance for his pleas of guilty at a relatively early stage but taking into account the need for deterrence and the protection of the community, the Judge sentenced the appellant to an effective total sentence of three years and two months’ imprisonment. He declined to impose a minimum period of imprisonment.

[4] The appellant now appeals against the sentences imposed on two broad grounds argued by Ms George:

(a) that the Judge adopted a starting point on the lead offence of burglary, before taking personal factors into account, which was too high; and

(b) that the Judge failed to pay due regard to the appellant’s remorse and
his genuine attempts at rehabilitation from methamphetamine addiction which, it is said, was the root cause of his offending.

1 Police v Nelson DC Auckland CRI-2011-404-16542, 8 June 2012 at [19].

[5] For the respondent, Mr McMullan noted that, although this Court on appeal might adopt a different methodology to the determination of the appropriate sentence for the appellant’s offending overall, the ultimate issue for the Court is whether the sentence imposed was manifestly excessive. He argued that, while the end sentence of three years and two months’ imprisonment was towards the top of the range properly available to the Judge, it could not be regarded as clearly excessive.

[6] The questions arising on the appeal are:

(a) Did the Judge adopt an incorrect approach to determining the starting point?

(b)Did the Judge uplift 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.

Continue reading Nelson v Police

Details

AGLC: Nelson v Police [2012] NZHC 2266
Case: [2012] NZHC 2266
Decision Date: 4 September 2012

CaseChat Overview and Summary

Nathan Sonny Nelson appeals against sentences imposed on him by the District Court. The appellant pleaded guilty to various charges, including burglary, receiving stolen property, driving while disqualified, resisting a police officer, escaping from lawful custody, and breaching a sentence of intensive supervision. The burglary was committed while the appellant was on bail on the other charges. The District Court Judge sentenced the appellant to an effective total sentence of three years and two months’ imprisonment. The appellant's appeal is based on two grounds: (a) the Judge adopted a starting point on the lead offence of burglary, before taking personal factors into account, which was too high; and (b) the Judge failed to pay due regard to the appellant’s remorse and his genuine attempts at rehabilitation from methamphetamine addiction which, it is said, was the root cause of his offending.

The Court found that the Judge adopted an incorrect approach to determining the starting point, as the approach failed to give appropriate prominence to the actual offending in setting the starting point before any uplifts. The Court considered the appropriate starting point for the burglary charge to be within a range of 18 months to two years imprisonment. The Court also found that the Judge uplifted the sentence appropriately to reflect the totality of the offending, but erred in uplifting the sentence to reflect the added need for deterrence and community protection in light of the appellant's previous history of offending. Lastly, the Court found that the Judge discounted the sentence appropriately having regard to the appellant’s guilty pleas and expressions of remorse.

The Court allowed the appeal in part and confirmed the terms imposed by the District Court in respect of each of the charges but directed that all sentences are to be served concurrently. The total effective sentence is one of two years six months' imprisonment.

Orders