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…

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 Nightingale v Police

Details

AGLC: Nightingale v Police [2020] NZHC 2889
Case: [2020] NZHC 2889
Decision Date: 3 November 2020

CaseChat Overview and Summary

The case of Nightingale v Police before the High Court of New Zealand involved Daniel Nightingale appealing against his sentence of 26 months' imprisonment. The appellant's appeal centred on the contention that the sentencing judge had erred in the determination of the appropriate starting point for his sentence. The appellant's criminal history included a range of offences including injuring with intent, threatening to kill, assault, driving while disqualified, unlawful taking of a vehicle, bail breaches, and possession of drugs and an offensive weapon. The judge's sentencing calculations involved a starting point of 38 months' imprisonment, reduced to 26 months' imprisonment after deducting time for pleas of guilty and time spent on electronically monitored bail.

The central legal issue before the court was whether the sentencing judge had erred in setting the global starting point for the appellant's sentence at 38 months' imprisonment. The appellant's counsel argued that the starting point for the family violence offences was excessive, suggesting a more appropriate starting point would have been 15 months' imprisonment. The counsel based this argument on comparisons with other cases, asserting that the appellant's offending was less serious than that in the cited cases. The court needed to determine whether the sentencing judge's starting point was appropriate and whether the reductions applied were justified.

The court found that the sentencing judge's starting point of 38 months was appropriate, despite an arithmetical error in the judge's calculations. The court concluded that the appellant's offending, while not as severe as in some cited cases, still warranted a high starting point due to the nature and severity of the family violence offences. The court noted that the appellant's offending involved significant acts of violence, including kicking and hitting the victim on the head while she was on the ground, and these factors justified the starting point set by the sentencing judge. The court also found that the uplifts applied for other offences were appropriate, and the overall sentence of 26 months' imprisonment was correct. The appeal was therefore dismissed.

Orders