Nelson-Wright v Police

[2015] NZHC 2302

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000028 [2015] NZHC 2302

BETWEEN

CORDELL NELSON-WRIGHT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	23 September 2015
Counsel:	N M Graham for Appellant F E Cleary for Respondent
Judgment:	23 September 2015

JUDGMENT OF COLLINS J

Introduction

[1]      I am allowing Mr Nelson-Wright’s appeal against a sentence of 15 months’ imprisonment imposed by Judge Adeane in the Napier District Court on 7 July 2015. Mr Nelson-Wright was sentenced after pleading guilty to one charge of assault with intent to injure.1

[2]      I am quashing the sentence imposed by Judge Adeane and replacing it with a sentence of eight months’ imprisonment.  I have changed the sentence imposed by Judge Adeane for two reasons:

(1)       Judge Adeane  adopted  too  high  a  starting  point  when  sentencing

Mr Nelson-Wright.

(2)Judge Adeane failed to give appropriate weight to the fact Mr Nelson- Wright was aged 18 at the time of his sentence.

1      Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.

NELSON-WRIGHT v NEW ZEALAND POLICE [2015] NZHC 2302 [23 September 2015]

[3]      As  a  consequence,  Judge  Adeane  failed  to  impose  the  least  restrictive sentence available in the circumstances as he was required to do by s 8(g) of the Sentencing Act 2002.

Background

[4]      Mr   Nelson-Wright   and   the   complainant   have   been   in   a   tumultuous relationship  for  about  three  years.    On  19 April  2015  the  complainant  was  at Mr Nelson-Wright’s address in Napier.   Mr Nelson-Wright was at a party nearby where he was drinking alcohol.  He asked the complainant several times to come and join him, but she declined.

[5]     At about 1.00 am Mr Nelson-Wright returned home.   He was severely intoxicated and began to argue with the complainant when she refused to go to the party with him.   He became enraged and starting throwing items around in the lounge area.  He continued to smash items in the lounge before heading back to the party.

[6]      At 7.00 am Mr Nelson-Wright returned home again and fell asleep.   The complainant checked on him and pulled the blanket off of his face.  This woke him up and he attacked the complainant.  He grabbed her by her chest area and threw her against the bedroom wall.  When she tried to push him away, he grabbed her hair by her bun and slammed her head into the wall.  When Mr Nelson-Wright released the complainant, she fell to the floor.  He kicked her in the face twice and then kicked her to the left side of her body.   He began throwing the complainant around and dragging her by the hair.  She was kicking her legs to try and protect herself.  Mr Nelson-Wright then jumped on top of the complainant and straddled her while he punched her around the head and face several times with closed fists.  He also threw a beer can at her.

[7]      The complainant ran into the bathroom and locked the door.   Mr Nelson- Wright smashed a large hole in the door and eventually kicked it open.  He picked up large pieces of the broken door and threw them at the complainant.  She sat down on the floor and placed her hands over her head to protect herself.  Mr Nelson-Wright kicked and punched her to the head and body several times.

[8]      Mr Nelson-Wright then walked into the bedroom and began throwing the complainant’s clothes out of the bedroom window.  The complainant ran out of the house and down the driveway where she waited for the police.

[9]      As a result of the assault the complainant received bumps and bruises to her temple, shoulder and behind her right ear.   Mr Nelson-Wright later told the police that he was so drunk he could not remember getting home that morning and did not remember assaulting the complainant.

The District Court Judge’s decision

[10]     Judge Adeane concluded that Mr Nelson-Wright needed to serve a sentence of imprisonment in order to adequately condemn and denounce his conduct.2

[11]     Judge Adeane adopted a starting point of two  years’ imprisonment.   His

reasons for doing so included:

(1)the attack was an episode of domestic violence, which the courts must condemn;

(2)       it was behaviour which involved “domestic savagery”;3 and

(3)       it was a charge that was close to the worst of its kind.

[12]     Judge Adeane then gave Mr Nelson-Wright a 25 per cent discount for an early guilty plea.  He gave a further discount of three months to reflect Mr Nelson- Wright’s youth.

Legal principles governing an appeal

[13]     Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure

Act 2011 provides:

2      Police v Nelson-Wright [2015] NZDC 13008 at [2].

3 At [6].

(2)      The [High Court] must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction;  and

(b)      a different sentence should be imposed.

[14]     It  is  well-established that  an  appellate  Court  should  not  interfere  with  a sentence imposed by a lower court Judge unless the sentence is manifestly excessive or wrong in principle.4   In particular, the Court should not substitute its own opinion for that of the sentencing Judge.5  Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.6    Not every error in a sentence will provide the foundations for a successful appeal.

Assault with intent to injure

[15]     The  Court  of Appeal  revisited  the  different  offence  provisions  including “intent to injure” in Nuku v R.7   The Court of Appeal has cautioned against adopting a mathematical approach to any adjustment process where the charge involves a lesser degree of harm or culpability and therefore carries a lesser maximum penalty.8

In R v D the Court held that mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process.9    When setting the sentence in a particular case, the sentencing Judge needs to stand back and undertake an overall assessment of the seriousness of the offending.10

[16]     The Court of Appeal in Nuku found the Taueki approach to be useful when sentencing  for  offending,  which  involves  lower  levels  of  violence.     It  also

emphasised that a sentencing Judge must not only identify aggravating factors, but

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36]; R v Radich [1954] NZLR 86 (CA) at 87; R v Brooks [1950] NZLR 658 (CA) at 659.

5      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

6      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

7      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [5].

8      At [8]; citing R v Lambert CA456/05, 4 April 2006 at [22]; R v Morrison [2007] NZCA 78 at

[23]; and R v D (CA253/08) [2008] NZCA 267 at [43].

9      R v D (CA253/08), above n 8, at [43]; citing R v Taueki [2005] 3 NZLR 372 (CA) at [30].

10     Nuku v R, above n 7, at [43].

also evaluate the seriousness of a particular factor.11   One serious aggravating factor may have the effect of lifting the offending into a higher band.12

[17]     It is never easy to fix a starting point in cases involving domestic violence because the circumstances of cases vary so widely and sentencing Judges must work within a range available to them.13    In general, courts have imposed sentences of around two to three years imprisonment on multiple charges involving domestic violence.14    How prolonged of a time period that abuse has been inflicted upon a partner will often be taken into account when fixing a starting point.

[18]     In my assessment, a starting point of two years’ imprisonment for Mr Nelson- Wright’s assault on the complainant was beyond the range reasonably available to Judge Adeane on this occasion.  In reaching this conclusion I recognise Mr Nelson- Wright’s attack involved:

(1)       Domestic violence.    He attacked his partner, who is 16 years old.

While he was beating her he yelled “Stop crying or I’ll make you cry some more.  Do you want another crack?”  Inherent in this feature of the offending is the vulnerability of the young complainant.

(2)A prolonged  attack.    In  my  assessment,  this  is  the  most  serious aggravating feature of Mr Nelson-Wright’s offending.   The assault charge encompasses a chain of serious assaults within a short amount of time.  Mr Nelson-Wright pursued the complainant and smashed the bathroom door into pieces in order to reach her while she was in hiding.

(3)Attacking the head.   There was attacking to the head by punching, kicking and throwing pieces of the broken door frame and a beer can

at her.

11     R v Taueki, above n 9, at [30].

12     Nuku v R, above n 7, at [42].

13     R v Jury HC Gisborne CRI-2009-416-4, 31 July 2009 at [15] and [20].

14 At [20].

[19]     When I compare Mr Nelson-Wright’s offending to other cases and also stand back and undertake an overall assessment of the seriousness of the offending, I am satisfied that the starting point for this case should have been 18 months’ imprisonment.15

The least restrictive outcome

[20]     I am not satisfied that the end sentence which Judge Adeane reached was appropriate in the circumstances of Mr Nelson-Wright’s case for the following reasons:

(1)Mr  Nelson-Wright  is  18  years  old.    The  courts  have  repeatedly stressed age is a mitigating factor in sentencing because of the importance   of   keeping   youth   offenders   out   of   prisons   as imprisonment may have a more harsher effect on an adolescent than

an adult.16     The difficulty young people can have regulating their

behaviour and impulses,17  the lack of appreciation of the full gravity of  their  offending18   and  their  capacity  for  rehabilitation  are  also factors  that  weigh  against  sentencing  young  people  to imprisonment.19

(2)Although  Mr  Nelson-Wright  has  a  previous  history  in  the Youth Court, it is neither a particularly lengthy nor violent one.  He has one charge of common assault in the District Court, which involved an attack on his uncle.   Mr Nelson-Wright was fined $150 on that occasion.    This  indicates  his  prior  conviction  for  assault  did  not

involve serious offending.

15     Kahika v Police [2015] NZHC 1262; Arahanga v Police [2015] NZHC 488. Compare Tamihana v R [2015] NZCA 169, which was not a domestic assault.

16     R v Chankau [2007] NZCA 587 at [26]; R v Slade [2005] 2 NZLR 526 (CA) at [43].

17     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; R v Slade, above n 16, at [43].

18     R v Accused (CA265/88) [1989] 1 NZLR 643 (CA) at 655; R v Alletson [2009] NZCA 205 at

[66]; Overton v R [2011] NZCA 648.

19     Churchward v R, above n 17, at [77]; Overton v R, above n 18; R v Wilson [1989] 2 NZLR 308 (CA).

(3)       The most serious sentence Mr Nelson-Wright has previously received

is five months’ supervision and community work.

(4)The pre-sentence report recommended a combination of community detention, community work and supervision tailored to establish the most appropriate and least restrictive outcome for Mr Nelson-Wright. It also noted that home detention was an available option.

[21]     I propose to give Mr Nelson-Wright a 25 per cent discount for his guilty plea.

This reduces his provisional sentence to 13 and a half months’ imprisonment.

[22]     I  also  propose  to  reduce  Mr  Nelson-Wright’s  provisional  sentence  by  a further five and a half months to reflect his age and to give a proper recognition to the factors I have set out in paragraph [19](1) of this judgment.  This produces an end sentence of eight months’ imprisonment.

[23]     I am satisfied that an end sentence of eight months’ imprisonment is the appropriate sentence in this case.  In particular, this sentence will:

(1)hold Mr Nelson-Wright accountable for the harm done to his victim and the community;20

(2)promote in Mr Nelson-Wright a sense of responsibility for the harm he has done;21

(3)       provide for the interests of the victim;22

(4)       denounce Mr Nelson-Wright’s conduct;23 and

(5)deter Mr Nelson-Wright and others from offending in the same or a similar way.24

20     Sentencing Act 2002, s 7(1)(a).

21     Section 7(1)(b).

22     Section 7(1)(c).

23     Section 7(1)(e).

24     Section 7(1)(f).

It is also the least restrictive outcome that is available in the circumstances.25

Conclusion

[24]     The  appeal  is  allowed.     I  am  quashing  the  sentence  of  15  months’

imprisonment that Judge Adeane imposed and I am replacing it with one of eight

months’ imprisonment. All other orders made by Judge Adeane will remain in force.

D B Collins J

Solicitors:

Nicola Graham Law, Napier for Appellant

Crown Solicitor, Napier for Respondent

25     Sentencing Act 2002, s 8(g).