Nogueira v The Queen

[2017] NZHC 3059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-446

CRI-2017-404-447 [2017] NZHC 3059

BETWEEN

JOAO NOGUEIRA

Appellant

AND

THE QUEEN Respondent

Hearing:	On the papers
Appearances:	W Andrews for Appellant V McCall for Respondent
Judgment:	8 December 2017
Reasons:	11 December 2017

REASONS FOR JUDGMENT OF LANG J [on appeal against sentence] [

This judgment was delivered by me on 11 December 2017 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JOAO NOGUEIRA v THE QUEEN [2017] NZHC 3059 [8 December 2017]

[1]      On  8  December  2017,  I  allowed  an  appeal  by  Mr  Nogueira  against  an effective sentence of one year’s imprisonment imposed on two charges of being in unlawful possession of a firearm.   I quashed those sentences and in their place I convicted and discharged Mr Nogueira on each charge.  I now give my reasons for that decision.

Background

[2]      Mr Nogueira pleaded guilty in the District Court to one charge of injuring his partner with intent to injure her and two charges of common assault.  One of these was laid under the Crimes Act 1961 and the other was laid under the Summary Offences Act 1981.   In addition, the Department of Corrections had applied for a review of a sentence of seven months home detention Mr Nogueira had received on

30 March 2017 on two charges of being in unlawful possession of a firearm.

Sentencing in the District Court

[3]      Judge Sainsbury sentenced Mr Nogueira and dealt with the application for review on 9 October 2017.1   By that stage Mr Nogueira had been in custody for just over six months after having been arrested and charged with assaulting his partner just three days after being sentenced to home detention on 30 March 2017.

[4]      The Judge’s sentencing remarks make it clear he sought to impose a sentence that  ensured  Mr  Nogueira  would  spend  six  more weeks  in  prison  before being released.  The Judge endeavoured to achieve that result by imposing a sentence of

15 months imprisonment on the charges of injuring with intent to injure.  This meant that Mr Nogueira would be eligible for automatic release approximately six weeks after he was sentenced.  The Judge imposed concurrent sentences of six months and three months imprisonment respectively on the two assault charges.

[5]      The  Judge  then  cancelled  the  existing  sentence  of  home  detention  and imposed a further concurrent sentence of 12 months imprisonment on each of the

two charges of being in unlawful possession of firearms.

1      New Zealand Police v Nogueira [2017] NZDC 22936.

[6]      A  problem  subsequently  arose  when  counsel  discovered  the  sentences inposed on the firearms charges meant Mr Nogueira would be required to remain in prison until June 2018.  At that point, after unsuccessfully endeavouring to persuade the Judge to revisit those sentences, Mr Nogueira appealed against sentence.

Reasons for decision

[7]      Counsel for the Crown advised me by memorandum that the appropriate way to achieve the result the Judge intended was to quash the sentences of imprisonment imposed on the firearms charges and to convict and discharge Mr Nogueira on those charges.  Counsel also agreed the appeal could be dealt with on the papers and that an oral hearing was not required.

[8]      This explains why I made the orders that I issued on 8 December 2017. These  resulted  in  Mr  Nogueira  being released  from  prison  on  the  afternoon  of

8 December 2017.

[9]      The sentences in respect of the remaining charges are not disturbed.

Lang J

Solicitors/Counsel: Crown Law Office

Wendy Andrews, Auckland