R v Nathan - [2017] NZHC 806

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-029-351 [2017] NZHC 806

THE QUEEN

v

MARK NATHAN

Hearing: 27 April 2017

Appearances:

NJ Dore for Crown
N Town for Defendant

Sentence:

27 April 2017

SENTENCING NOTES OF TOOGOOD J

R v Nathan [2017] NZHC 806 [27 April 2017]

[1] Mark Nathan, you appear for sentence on two charges of aggravated robbery, having pleaded guilty after you received a sentence indication on 16 March 2017.

First strike warning

[2] Given aggravated robbery is a qualifying offence under s 86A of the Sentencing Act, you are now subject to what is known as the “three strikes regime”. I must warn you, therefore, that if you are convicted of further serious violent offences, excluding murder, you will be required to serve the full sentence of imprisonment you receive without parole or early release.

[3] If you are convicted of murder after this warning, you will receive a life sentence of imprisonment without parole unless that would be manifestly unjust. You will be given that warning in a written notice which will be fuller than this brief description and Ms Town will explain that to you.

Sentencing approach

[4] In approaching the determination of the sentence to be imposed, I will set out first the circumstances of your offending and the effect on your two victims. Then I will address the part you played in the offending and set an initial sentence starting point appropriate to your culpability or blameworthiness; that is, to the extent to which you personally are considered to have been guilty of the offending. I will then make such adjustments to the sentence as are appropriate to reflect relevant factors which are personal to you before imposing the end sentence which I have determined you should receive.

[5] As you know, I sentenced one of your co-offenders, Mr Williams, yesterday, and you will also know that I do not propose to treat you both in the same way. That is because you were involved in the offending in very different ways; Mr Williams is older than you; unlike Mr Williams, you have no relevant criminal history, and you have shown insight into your role in this offending and expressed, what I accept as, genuine remorse.

The circumstances of the offending

[6] At around 4.00 am on Friday, 25 March 2016, you arrived with companions at a public carpark situated on the foreshore at Ahipara. The three of you who were proved to be involved in the offending got out of your vehicle and approached a parked campervan in which the male and female occupants were spending the night. They were overseas tourists.

[7] All three of you began to rock the van violently almost to the point of tipping it over. The victims, who were alarmed, opened the sliding door of the van to see what was happening and the 29 year old male victim yelled out, asking what was going on. He was immediately punched in the face…

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 R v Nathan

Details

AGLC: R v Nathan [2017] NZHC 806
Case: [2017] NZHC 806
Decision Date: 27 April 2017

CaseChat Overview and Summary

Mark Nathan was sentenced for two charges of aggravated robbery. He pleaded guilty after receiving a sentence indication on 16 March 2017. The key legal issues before the court were determining an appropriate starting point for Nathan's sentence, assessing his level of culpability, and deciding on a final sentence that balanced punishment, deterrence, denunciation, and rehabilitation. The court had to consider the circumstances of the offending, Nathan's role in the crime, and his personal factors.

The court found that Nathan's initial starting point should be four years and three months' imprisonment, reflecting the seriousness of the crime. However, because Nathan did not directly participate in the violent attacks, his culpability was lower. The court found him to be less blameworthy and set his initial starting point at three years' imprisonment. Nathan's youth, lack of criminal history, and genuine remorse were considered in determining a final sentence of five months' home detention, discounted to account for time spent in custody and on stringent bail conditions. The court emphasised the importance of rehabilitation and encouraged Nathan to take advantage of available programmes and support from his family.

The final orders of the court were that Nathan be sentenced to a period of five months' home detention to be served concurrently on each of the two charges of aggravated robbery, subject to specified conditions.

Orders