Nightingale v Police

[2020] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000081

[2020] NZHC 2889

BETWEEN

DANIEL LANCE NIGHTINGALE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 November 2020
Counsel:	GA Walsh for Appellant AN Gray for Respondent
Judgment:	3 November 2020

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. GA Walsh, Hamilton.

NIGHTINGALE v POLICE [2020] NZHC 2889 [3 November 2020]

[1]                 On 25 August 2020, Judge G S Collin sentenced Daniel Nightingale to a term of 26 months’ imprisonment.1 Mr Nightingale appeals. He contends the Judge erred and a different sentence should be imposed.

[2]Mr Nightingale committed many criminal offences. I list them:

(a)Injuring with intent to injure;

(b)Threatening to kill;

(c)Two charges of assaulting a person in a family relationship;

(d)Two charges of driving while disqualified;

(e)One charge of failing to stop;

(f)One charge of unlawfully taking a car;

(g)Three charges of breaching District Court bail;

(h)One charge of possessing a pipe for consuming controlled drugs; and

(i)One charge of possessing an offensive weapon.

[3]The facts are best explained by adopting the Judge’s helpful summary:2

The first series of offending are that on 24 December 2017 Mr Nightingale was stopped when driving his vehicle and found to be disqualified. In explanation he said he was going to see his children for Christmas, knew he shouldn’t be driving but couldn’t get there otherwise. He appeared in court on that matter on 25 January 2018 and was remanded on bail.

On 26 February 2018 whilst on bail, he was observed driving a vehicle. The police activated red and blue flashing lights and sirens, but the vehicle did not stop, it passed a black ute and effluent truck. The police decided not to continue the chase and deactivated their lights and sirens knowing the road was dangerous. The police continued and located the vehicle parked out of sight in the driveway of the defendant’s father, he was not present.

1      Police v Nightingale [2020] NZDC 17528.

2      At [2]–[12].

He appeared in court on those matters and was remanded on bail. There was some delay occasioned by Mr Nightingale’s failures to appear in court from time to time.

The second series of offending occurred when on 4 May 2019, a vehicle was reported stolen from an Auckland address. Mr Nightingale was the driver of the stolen vehicle on 5 September 2019. Police recognised him and activated their blue and red lights in an effort to get him to stop. He attempted to evade the police, driving down a road before going on to a gravel forestry track. He left the vehicle which police found abandoned. The defendant ran off into a bush, he was not located. The vehicle was impounded and checks later revealed the vehicle was stolen.

During a search of the vehicle the police located a large military style bayonet in the driver’s door and some methamphetamine in the glovebox.

The third series of charges involved the victim Heidi Moliejn. These occurred whilst the defendant was either on bail, or if not when he had failed to appear. Ms Moliejn and Mr Nightingale had been in a relationship for seven years. they had two children together aged then between two and four and at the time lived in Whitianga. In July 2019 they moved to Thames.

On 23 July 2019 Ms Moliejn went into town for an appointment. She returned home at 2.30 pm. The defendant was awake and watching a movie. When Ms Moliejn walked in the room Mr Nightingale told her to: “fuck off and shut the door”. An argument started.

Mr Nightingale left the bedroom and ran at the victim. He pulled her to the ground causing her to fall heavily on her backside. While lying on the ground the defendant kicked Ms Moliejn to her ribs, winding her and causing her to experience  significant  pain  in  her  stomach  and  ribcage.   She  asked    Mr Nightingale to leave, he said he wouldn’t and that she would have to deal with the situation she created.

Mr Nightingale then stood over her and demanded she hand him the phone. When she said she did not have it he instructed her to find it. When she was looking for the phone Mr Nightingale followed her around hitting her on the head and the body stating: “Do you need inspiration to find the phone”. He said that: “If she couldn’t find it he was going to smash her teeth out with a hammer and she would know pain when bending over with her teeth in her hand”. Ms Moliejn found the phone, dropping it in front of Mr Nightingale.

She went into the bedroom and her face was hurting. She then locked herself in the toilet and started to cry. Mr Nightingale kicked at the toilet door. Fearing that it would be damaged, Ms Moliejn opened it. Mr Nightingale came in punching her causing her to fall to the floor where he again kicked her. When she was lying on the floor he spat at her, calling her: “A stupid piece of shit and a cunt”.

As a result of the assaults Ms Moliejn received injuries to her limbs, torso, face and head and needed to seek medical treatment in the days following the assault.

[4]                 The Judge adopted a global starting point of 38 months’ imprisonment. He deducted six months for Mr Nightingale’s pleas of guilty, and another six months because Mr Nightingale was on electronically monitored bail for some time. This produced a sentence of 26 months’ imprisonment.

[5]                 Everyone agrees the discounts are unimpeachable. The appeal focusses on the global starting point, more particularly the family violence component of this. About this, the Judge said:3

My overall assessment of this  matter  is  that  for  the  charges  involving  Ms Moliejn a starting point of two years four months is the appropriate starting point. In respect of the other factors I consider that the first series justifies an uplift of six months and the second series a further uplift of     six months, each of these being concurrent on the two years four months.

The starting point is therefore a term of imprisonment of 38 months.

[6]                 Although the Judge said each six month uplift was concurrent, this must have been a slip of the tongue given what else the Judge said; and the Judge’s arithmetic. The Judge must have meant to say cumulative. This leaves an apparent mathematical error. Two years and four months, plus six months, plus another six months’ equals 40 months, not 38 months.

[7]                 On behalf of Mr Nightingale, Mr Walsh argues even if the starting point for the family violence offences was 26 months, rather than 28 months, this was much too high. Mr Walsh says this component ought not to have been more than 15 months’ imprisonment.

[8]                 Mr Walsh expresses the argument in different ways. He says Mr Nightingale’s violence is less serious than the violence in R v Kimiora4 and Police v Dennis. In the first, Hinton J adopted a starting point of 20 months’ imprisonment. In the second, Judge D J Sharp adopted a global starting point of 30 months’ imprisonment for family violence. This was upheld on appeal by Whata J.5

3      Police v Nightingale, above n 1, at [36]–[37].

4      R v Kimiora [2015] NZHC 1940.

5      Dennis v Police [2018] NZHC 886.

[9]                 I agree with Mr Walsh that Mr Nightingale’s offending is less serious than that of Mr Dennis. Mr Dennis committed many offences over several years. But, his starting point was higher.

[10]              I disagree with Mr Walsh that Mr Nightingale’s offending is less serious than Mr Kimiora. In that case, Hinton J noted the defendant unlawfully entered the victim’s house and put his hands around the victim’s throat. He strangled her for a brief time, then stood up and placed his foot across her throat. Mr Kimiora then kicked and punched the victim to the arms and legs. She suffered what the Judge described as reasonably significant bruising. The victim and the defendant were in a relationship. Unlike Mr Nightingale, Mr Kimiora did not strike his victim to the head. Nor did he kick her to the torso while she was on the ground.

[11]              In any event, Judge Collin considered Mr Nightingale’s offending was similar to the facts in the Court of Appeal’s guideline judgment of Nuku v R.6 The Judge said:7

Mr Walsh and I have had a discussion regarding Nuku v R. There is a remarkable resemblance between the facts in Nuku v R and the facts in this case. Mr Walsh attempted to distinguish them by referring to the fact that in Nuku v R there were four kicks to the face. I accept that there were not four kicks to Ms Moliejn’s face but on the other hand there were kicks and she was hit to the face causing injuries.

There are other factors that are similar. In Nuku v R he attempted to break into a bathroom. Mr Nightingale attempted to break into the toilet and when the door was opened to him he punched Ms Moliejn. He then spat and swore at her. I do not think there is significant difference, although in Nuku v R the injury suffered by the victim do appear slightly worse because she was taken to hospital where she had a wound on her head stapled closed.

I further accept the fact that in R v Taueki assaults to the head are identified as a particular factor contributing to the seriousness of grievous bodily harm offending. To that extent I accept that the Nuku v R assault was worse than that suffered by Ms Moliejn because the victim was hospitalised as a consequence. Ms Moliejn was not.

[12]              Mr Walsh contests this analysis. He says Mr Nightingale’s offending is much less serious than Mr Nuku, especially because Mr Nuku committed home invasion; Mr Nightingale did not.

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

7      Police v Nightingale, above n 1, at [27]–[29].

[13]              I acknowledge this distinction.  However,  the  starting point  in  Nuku  was 36 months’ imprisonment, or three years. Moreover, in that case the attack ended at the point the victim was in the toilet or bathroom because Police intervened. Here it did not. Mr Nightingale subjected the victim to further violence once he entered the toilet.

[14]              Mr Walsh also contends the Judge erred in referring to the case as being within the higher end of band one of Nuku, but “in all likelihood in band two”.

[15]              Again, I disagree with Mr Walsh. Mr Nightingale’s offending involved at least two aggravating factors. The first of victim vulnerability; the second of blows to the head. Moreover, while Mr Walsh correctly refers to Mr Nightingale’s offending as involving one transaction, it was also a transaction that involved multiple acts of violence. It follows the starting point the Judge adopted in relation to the family violence was open to him.

[16]              Mr Walsh made no real contest of the uplifts totalling 12 months. I consider he was correct here. The other offending was serious. It required discrete sanction. This means the global starting point was available to the Judge and because there is no contest about the discounts, so too the ultimate sentence of 26 months’ imprisonment.

[17]The appeal is dismissed.

……………………………..

Downs J