Nicholson v Police - [2015] NZHC 3341

IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY

CRI 2015-454-28

[2015] NZHC 3341

BETWEEN
TAMATI TUHI NICHOLSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2015

Counsel:

E J Forster for Appellant N J Wynne for Respondent

Judgment:

22 December 2015

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is 11.00am on the 22nd day of December 2015

NICHOLSON v NEW ZEALAND POLICE [2015] NZHC 3341 [22 December 2015]

Introduction

[1] Mr Nicholson pleaded guilty in the District Court to one charge of assault, one charge of male assaults female and three charges of wilful damage. A sentence of 18 months and two weeks imprisonment was imposed.1 The two weeks imprisonment was for remission of fines totalling $1,543.33.

[2] Mr Nicholson originally appealed the sentence on three grounds: that it was manifestly excessive, there was no consideration of the totality principle and relevant matters were not considered when home detention was refused. In the course of the hearing of the appeal Mr Forster, for the appellant, submitted that this third ground was no longer advanced.

Facts

[3] In February 2015 the appellant and victim were at their home address in Dannevirke. They began to argue and the appellant attempted to take the victim’s cell phone from her. When she would not surrender the phone the appellant reached into the victim’s bag and removed her electronic tablet which he then broke over his knee. He managed to take her cell phone from her and threw it on the floor causing it to smash. The appellant proceeded to smash up a bedroom causing further damage. The appellant then entered the hallway and grabbed the victim by the throat and pinned her against the wall. While holding the victim by the throat with one hand he drew back his other arm and held his fist up as if to punch the victim. The appellant’s mother intervened and the appellant then released the victim and left the address. I refer to this episode as “the February 2015 incident”.

[4] The February 2015 incident led to one charge of male assaults female2 and one charge of wilful damage.3

1      New Zealand Police v Nicholson [2015] NZDC 20816.
2      Crimes Act 1961, s 194(b) (maximum penalty two years imprisonment).
3      Summary Offences Act, s 11(1)(a) (maximum penalty three months imprisonment).

[5] In April 2015 while the appellant was on bail for that offending he was at the home of the victim in breach of his bail conditions not to associate with her. She was going to move out. The appellant began to throw her possessions onto a concrete path. The victim telephoned the police. The appellant picked up a 43 inch television set and threw it at the victim. It missed her and smashed on the driveway. The appellant then grabbed the victim pushed her against the house, grabbed her by the hair in an attempt to get her phone from her. She managed to break free. I…

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 [2015] NZHC 3341
Case: [2015] NZHC 3341
Decision Date: 22 December 2015

CaseChat Overview and Summary

The case of Nicholson v Police [2015] NZHC 3341 concerns an appeal by Tamati Tuhi Nicholson against the sentence imposed on him by the District Court. Nicholson was convicted of multiple charges including assault, male assaults female, and wilful damage. The District Court sentenced him to 18 months and two weeks imprisonment, with two weeks for remission of fines. Nicholson appealed the sentence, arguing it was manifestly excessive, did not consider the totality principle, and failed to consider relevant matters when home detention was refused. However, during the appeal hearing, the ground regarding home detention was abandoned.

The legal issues before the court were whether the sentence imposed was manifestly excessive and if the court had properly considered the totality principle and relevant matters when refusing home detention. The court reviewed relevant case law and compared the circumstances of this case with those in other cases to determine if the sentence was appropriate. The court found that while domestic violence is a serious issue, the appellant's conduct was at the lower end of the scale for such cases. The court determined that a starting point of seven months for the most serious charge was appropriate, and the cumulative sentences resulted in an excessive overall sentence.

The court concluded that the sentence of 18 months and two weeks imprisonment was indeed excessive. The appropriate starting point for the most serious charge was seven months, and the cumulative sentences resulted in a nominal sentence of 16 months, which should be reduced by 22 per cent for the guilty plea, resulting in a sentence of 12 months and two weeks imprisonment. The appeal was allowed, and the sentence was substituted with 12 months and two weeks imprisonment. All other orders made by the District Court remained in place.

In summary, the court found that the District Court's sentence was manifestly excessive and did not appropriately consider the totality principle and relevant mitigating factors. The court substituted the sentence with 12 months and two weeks imprisonment, while maintaining the other orders made by the District Court.

Orders