[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 As a result of that indication, the charge of aggravated burglary was withdrawn and the appellant pleaded guilty to the other charges.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…

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 Nicholson v Police

Details

AGLC: Nicholson v Police [2016] NZHC 300
Case: [2016] NZHC 300
Decision Date: 29 February 2016

CaseChat Overview and Summary

The case of Nicholson v Police involves an appeal by the appellant, Andre Francis Nicholson, 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. Nicholson contends that the sentence was imposed as a result of an error of law, making it manifestly excessive, while the respondent, the New Zealand Police, opposes the appeal.

The primary legal issue in this appeal is whether the District Court Judge erred in not deducting from the sentence the time Nicholson spent in custody and on bail with a 24-hour curfew, which Nicholson argues should have been considered as a mitigating factor. The Court of Appeal must determine if there was an error in the sentence imposed and whether a different sentence should be imposed, considering whether the sentence is manifestly excessive.

The court found that while Nicholson spent a significant period in custody and on restrictive bail, this issue was not specifically addressed with the sentencing Judge. The court acknowledged that the time spent on remand in custody and restrictive bail can be considered in mitigation when imposing a sentence of home detention. However, upon reviewing the circumstances and the aggravating factors of the offending, the court concluded that the sentence of 11 months’ home detention was not manifestly excessive. The court also noted that the sentence could have been slightly lower if the orthodox stepped approach to sentencing was strictly followed, but it still concluded that the imposed sentence was appropriate.

Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders