Newton v The Queen

[2021] NZHC 3370

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000041

[2021] NZHC 3370

BETWEEN

NICHOLAS JAMES NEWTON

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 December 2021
Appearances:	S A Saunderson-Warner for Appellant C J Bernhardt for Respondent
Judgment:	9 December 2021

JUDGMENT OF EATON J

This judgment was delivered by me on  at           pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NEWTON v R [2021] NZHC 3370 [9 December 2021]

Introduction

[1]    The appellant, Nicholas Newton, was sentenced by Judge Turner to three years and one months’ imprisonment on charges of aggravated robbery,1 possession of a firearm,2 and unlawfully getting into a motor vehicle.3 He appeals against that sentence on the ground it was manifestly excessive.

Background

[2]    At around 9.45 pm on 23 March 2020, Mr Newton and his two co-offenders were in a stolen vehicle. They drove to a Z petrol station and parked directly outside the automatic doors. At the time, there was a sole attendant working inside the store.

[3]    Mr Newton was heavily disguised with his hood up, sunglasses and gloves on. He entered the service station while his co-offender, who was also heavily disguised, positioned himself between the automatic doors to prevent them from closing. The third co-offender remained in the vehicle.

[4]    As he entered the service station, Mr Newton was holding a sawn-off shotgun. He approached the counter and raised the firearm, pointing it at the attendant as he told him to put cash and tobacco into a bag provided.

[5]    Mr Newton and his co-offenders fled the shop with approximately $200 cash and 17-20 pouches of tobacco. This offending resulted in the charges of aggravated burglary and unlawfully getting into a motor vehicle.

[6]    At around 10.30 pm on 2 April 2020, Mr Newton was dropped on the street at the entrance to the Dunedin public hospital by his co-offenders who were driving a stolen vehicle. Mr Newton had a shotgun wound to his chest area. He told hospital staff he had been getting the shotgun out of the boot of a car when the gun had gone off, injuring him.

1      Crimes Act 1961, s 235; maximum penalty 14 years’ imprisonment.

2      Arms Act 1983, s 51; maximum penalty three years’ imprisonment.

3      Crimes Act, s 226; maximum penalty two years’ imprisonment.

[7]    Mr Newton’s co-offenders fled the hospital at speed, driving through a red traffic light. The vehicle collided with a large passenger bus as it was travelling through the intersection causing extensive damage to both vehicles.

[8]    The offenders fled with the loaded sawn-off shotgun. It was thrown onto the roof of a nearby building, where it was later recovered by police. Mr Newton was charged with unlawful possession of a firearm.

District Court decision

[9]    The District Court Judge adopted a starting point of five years’ imprisonment on the charges of aggravated robbery and unlawfully getting into a motor vehicle,4 referring to the guideline decision…