Nicholson v Police

[2016] NZHC 300

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-00001 [2016] NZHC 300

ANDRE FRANCIS NICHOLSON

v

NEW ZEALAND POLICE

Hearing:	25 February 2016 (via audio visual link)
Appearances:	A Dooney for the Appellant J P Scott for the Respondent
Judgment:	29 February 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 29 February 2016 at 12pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

MWIS, Whangarei.

Counsel:

A Dooney, Whangarei.

NICHOLSON v NEW ZEALAND POLICE [2016] NZHC 300 [29 February 2016]

[1]      The appellant, Andre Nicholson, appeals against his sentence of 11 months’ home detention on one charge of assault with a weapon, six months’ home detention on two charges of threatening to kill, three months’ home detention on one charge of possession of an offensive weapon and two months’ home detention on one charge of resisting the Police, all to be served concurrently.

[2]      The appeal is on the basis that the sentence was imposed as a result of an error of law with the result the sentence was manifestly excessive.

[3]      The respondent opposes the appeal.

Facts

[4]      The offending occurred on 24 April 2015 at Whangarei.  Mr Nicholson was described as being very worked up and jealous that his former partner had formed a new relationship.  He went to her address, knocked on the door and, the moment the door was opened, barged in.

[5]      The appellant went into the kitchen of the address and uplifted a knife.  It is unclear whether the knife was a butter knife or a sharp steak knife.  He went into the bedroom, demanded the male victim leave and threatened to stab him.  Throughout the time during which the appellant was in the bedroom, he consistently stabbed the bedding  with  the  knife.    The  male  victim  refused  to  leave  the  room  but  the appellant’s former partner did.

[6]      There was then a confrontation outside the address.  The appellant grabbed his former partner by the collar and threatened to stab her.   She was five months pregnant at the time.  The appellant also threatened to stab the baby.  He held the knife to her throat, demanding she leave her new partner and resume her relationship with him.   When the Police arrived, the appellant vigorously resisted arrest and, during the course of the altercation, threatened to kill not only his former partner but also her new partner.

[7]      There was as a judge-alone trial. At that stage the appellant faced a charge of aggravated burglary on the basis of an allegation he had taken the knife to the address.  After hearing from the male victim, the District Court Judge formed the view that the Crown could not prove the appellant had taken the knife to the address. As a result of that indication, the charge of aggravated burglary was withdrawn and the appellant pleaded guilty to the other charges.

Grounds of appeal

[8]      Mr Dooney appeared for the appellant.  In his submission, the District Court Judge erred in not deducting from the sentence the time the appellant spent in custody and on bail with a 24 hour curfew.

[9]      Mr Dooney accepted that the starting point of two years’ imprisonment taken by the Judge was appropriate, as was the limited credit given for the late guilty plea. However, Mr Dooney noted that the appellant was remanded in custody from the end of April 2015 until bail was granted on 9 October 2015.   When the appellant was granted bail he was subject to a 24 hour curfew unless accompanied by his mother. The curfew lasted until the appellant was sentenced on 10 December 2015.

[10]     In Mr Dooney’s submission, by analogy with s 9(3A) Sentencing Act 2002, the  appellant  should  have  received  a  deduction  in  respect  of  the  time  spent  in custody and on restrictive bail.

[11]     In the Crown’s submission, even if there were an error in the sentence, the Court must be satisfied that a different sentence should be imposed.  Mr Scott, who appeared for the Crown, submitted that the end result was the correct one and could even be considered lenient.

District Court decision

[12]     The District Court Judge described the appellant as being a very fortunate young man saying:

The Crown has taken the view that although this was serious offending and although the Crown submit to me that a starting point should be somewhere

between two and two and a half years, they also take the approach that given your age, a term of imprisonment here would not be appropriate and accordingly, the Crown effectively associate themselves with your counsel’s submissions, that the term of imprisonment that I would otherwise impose is such that home detention is available to me.  I have already told you that I am not going to send you to prison.

[13]     The Crown does not entirely agree with the way in which its view of the matter was articulated by the sentencing Judge.  The Crown says its approach was to question whether the purposes of deterrence and denunciation would adequately be served by a sentence of home detention given the home invasion characteristics of the offending.

[14]     The Judge said he was satisfied that a starting point of two and a half years “would well be justified” but then said he did not intend to take that as a starting point because it would be counterproductive to send the appellant to prison.   The Judge took the charge of assault with a weapon as the most serious charge and factored in the other offences before concluding that the appropriate global starting point was one of two years’ imprisonment.

[15]     The Judge gave the appellant some limited credit for a very belated guilty plea, recognising that at least it meant the appellant’s former partner did not have to give evidence.  The Judge concluded that, despite the concerns set out in the pre- sentence report about the home detention address, he was not prepared to say the address was not suitable particularly given the fact the appellant had been bailed on a

24  hour  curfew  to  that  address  and  there  had  been  no  suggestion  of  any  bail breaches.

Approach to appeal

[16]     Section 250(2) of the Criminal Procedure Act 2011 states that the 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.

[17]     In any other case, the Court must dismiss the appeal.1

[18]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2  Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.3

[19]     The approach taken under the former Summary Proceedings Act was set out in Yorston v Police where the Court said:4

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[20]    The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5

Analysis

[21]     While the appeal is on the ground that the Judge did not take into account time the appellant spent in custody or on very restrictive bail, it was conceded at the

1      Criminal Procedure Act 2011, s 250(3).

2      Tutakangahau v R [2014] NZCA 279 at [26]-[27].

3      At [33], [35].

4      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].

5      Ripia v R [2011] NZCA 101 at [15].

appeal that this issue was not specifically addressed with the sentencing Judge.  In those circumstances, it seems a little unfair to contend that the Judge made an error.

[22]     Section 9(2)(h) Sentencing Act provides that the Court must take into account as a mitigating factor the time that the offender spent on bail with electronic monitoring.  Pursuant to s 9(3A), in taking that into account, the Court must consider the period of time spent on EM bail, the relative restrictiveness of EM bail and any other relevant matter.

[23]     Section 82 of the Sentencing Act provides that in determining the length of a sentence of imprisonment to be imposed, the Court must not take into account any pre-sentence detention as defined in s 91 of the Parole Act 2002. This is because that period is automatically taken into account by Corrections in determining the length

of a prison sentence.6   Section 82 applies only when a sentence of imprisonment is to

be imposed.   There is  no similar legislative position when a sentence of home detention is to be imposed, and the Courts have taken time spent on remand into account as part of the evaluative approach to determining the end period of home detention which is set.7

[24]     Section 9(4) provides that nothing in s 9(1) or (2) prevents the Court from taking into account any other mitigating factor that the Court thinks fits. It has been accepted that a reduction in sentence can be appropriate to account for particularly restrictive general bail conditions.8

[25]     I accept that the Court should recognise as a mitigating factor any relatively lengthy period spent on remand in custody when imposing a sentence of  home detention, provided that remand involves only the charges being sentenced, including any which have been withdrawn, and that any relatively substantial period of time on

restrictive bail can also be considered in mitigation.

6      Parole Act 2002, s 90.

7      See, for example, Laloni v R [2015] NZCA 55 at [9]: “Different considerations arise in respect of the time spent in custody. In such cases, an allowance is commonly made to reflect the time spent on remand in fixing the period in respect of a sentence of home detention.”

8      Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613, (2012) 26 CRNZ 125 at [137]; Bennett v

R [2012] NZCA 173 at [25]; R v Iosefa [2008] NZCA 453 at [43]

[26]     In any event, the issue for this Court on appeal is whether the end sentence was manifestly excessive.  For that reason I will reconsider the sentencing approach in this case.

[27]     I have had regard to a number of cases when considering the appropriate starting point.9

[28]     In this case the aggravating factors of the offending are actual use of the knife; the two victims; holding the knife to the throat of the female victim, who was pregnant and vulnerable; the threat to stab the unborn child; and the element of home invasion, including some premeditation.

[29]     Given that the aggravating factors include all the charges, with the exception of resisting Police, it is appropriate for a global starting point to be taken.  I adopt a starting point of two years and four months’ imprisonment, including of the charge of resisting Police, although I agree with the District Court Judge that a starting point of two and a half years’ imprisonment could be justified.10

[30]     The appellant was remanded in custody for five months and on restrictive bail for two months.   Mr Dooney accepts that being on a 24 hour curfew except when accompanied by his mother means that the appellant’s bail restrictions were not as severe as those associated with EM bail.   I allow a six month deduction in respect of those two matters and then a discount of five per cent for the late guilty plea.

[31]     That  brings  the end  result  to  21  months  which  on  a straight  conversion amounts to 10 and a half months’ home detention, essentially the same as the 11 months imposed by the sentencing Judge.

[32]     It is worth pointing out that, following the orthodox stepped approach to sentencing, the starting point of two years in fact adopted by the District Court Judge

9      Gollan v R [2013] NZCA 29; Bonfert v R [2012] NZCA 313; R v Wakelin HC Auckland

T03456); R v Taueki [2005] 3 NZLR 372 (CA).

10     Although the Judge took a starting point of two years, he did so after taking into account other considerations as noted above.

would result in a sentence of nine months’ home detention taking into account the additional discount which I would allow.  As such, the 11 months actually imposed could not, on any basis, be considered manifestly excessive.

[33]     The result in this case emphasises that the process by which the sentence is reached is not the determining factor but rather whether  the final sentence was manifestly excessive.

Result

[34]     For the reasons given, the appeal is dismissed.

Thomas J