R v Nelson-Bell

[2023] NZHC 799

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754

[2023] NZHC 799

THE KING

v

WILLIAM NELSON-BELL

Date of hearing:	24 March 2023
Appearances:	C P Howard for the Crown V Letele for Mr Nelson-Bell
Date of judgment:	17 April 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 17 April 2023 at 1.00pm.

………………………… Registrar/Deputy Registrar

Solicitors:

Kayes Fletcher Walker, Manukau Law and Justice Limited, Auckland

R v NELSON-BELL [2023] NZHC 799 [17 April 2023]

[1]                 On 27 October 2022, on his convictions for intentional damage (x 3),1 participation in an organised criminal group2 and aggravated burglary,3 I sentenced William Nelson-Bell to one year’s home detention at the Grace Foundation’s Ōtāhuhu facility, in substitution for two years’ imprisonment.4 The Department of Corrections now applies for cancellation of that sentence, for substitution with one of imprisonment, on grounds Mr Nelson-Bell has failed to comply with detention conditions.5

Background

[2]                 The Department earlier had recommended a sentence of home detention for Mr Nelson-Bell as holding him to account for his offending and, together with the Department, enabling a high level of oversight and opportunity to address offending- related factors and reduce the risk of re-offending.

[3]                 The home detention sentence was subject to standard conditions,6 including Mr Nelson-Bell “must not leave the home detention residence at any time except in [specified] circumstances”.7 Except with a probation officer’s approval,8 the specified circumstances then only were “to seek urgent medical or dental treatment” and “to avoid or minimise a serious risk of death or injury” to himself or anyone else.9 A probation officer may require him to submit to electronic monitoring of compliance with his detention conditions, and to take part in any rehabilitative and reintegrative needs assessment.10

[4]                 The sentence commenced on 3 November 2022. The Foundation took upon itself to relocate Mr Nelson-Bell soon after to its less-secure Papakura facility, which a probation officer approved in retrospect. On 25 November 2022, the Foundation advised probation officers of his absence at an address in Manurewa, allegedly

1      Crimes Act 1961, s 269(1): maximum penalty, 10 years’ imprisonment.

2      Section 98A: maximum penalty, 10 years’ imprisonment.

3      Section 232: maximum penalty, 14 years’ imprisonment.

4      R v Nelson-Bell [2022] NZHC 2796.

5      Sentencing Act 2002, s 80F.

6      Section 80C.

7      Section 80C(2)(b).

8      Section 80C(3)(c) and (4)–(5).

9      Section 80C(3)(a)–(b).

10     Section 80C(2)(d) and (g).

drink-driving and spray-painting a neighbouring fence. On 27 November 2022, he was absent again from the home detention residence and consent to his return was withdrawn.

[5]                 The Foundation accepted its relocation of Mr Nelson-Bell to its Papakura facility was premature. Its founder and general manager, David Letele, explained the Ōtāhuhu facility is the Foundation’s:

… EM Bail-dedicated facility, housing up to 30 individuals and is more than sufficient to securely house the calibre of high/med-risk individuals such as Mr Bell. The property has 24/7 security personnel, 3 on-site staff, CCTV and the property is accessible only via pin-code at the gate. Our inter-dependent homes [such as the Papakura facility] are for individuals filtered out from [the Ōtāhuhu facility], who have been assessed as self-motivated, showing progress in programmes and engaging in household duties as well as complying with Grace kaupapa/house values.

He said Mr Nelson-Bell’s “struggled somewhat” on his “trial” at the Papakura facility “and needed to be in a more structured environment” such as the Ōtāhuhu facility, or preferably a West Auckland Māori youth facility, which “may present a better chance for him to grasp onto a genuine opportunity for positive change”.

[6]                 On 13 January 2023, Judge R J Earwaker in the District Court at Manukau admitted Mr Nelson-Bell to electronically-monitored bail at the Foundation’s Ōtāhuhu facility. The Judge noted “[t]his will give Mr Nelson-Bell the opportunity to demonstrate that he can comply with a sentence of home detention and with any conditions”.11 His Honour expressly and repeatedly warned Mr Nelson-Bell non-compliance  risked  his  imprisonment  and  “real  adverse  effect[s]”,  which  Mr Nelson-Bell directly acknowledged to the Judge.12

[7]                 I heard the Department’s application on 24 March 2023. My minute of that date recorded:

Before me today was the Department’s 23 February 2023 application to cancel Mr Nelson-Bell’s home detention sentence at the Grace Foundation’s Otāhuhu facility, on grounds of his failures to comply with its conditions.

I am satisfied the application remains appropriately to be determined by me, notwithstanding references to a similar application before Judge R J Earwaker

11     R v Nelson-Bell [2023] NZDC 403 at [19].

12     At [20]–[23].

in the District Court at Manukau. I accept counsel’s advice the Judge declined to deal with the application in his court pending my determination of its replica in mine. In addressing bail breach allegations before him, the Judge readmitted Mr Nelson-Bell to his home detention sentence. I also accept such readmission was not to determine the continuing appropriateness of a home detention sentence, which remains for my decision on the Department’s application.

In my preliminary view, while Mr Nelson-Bell’s conduct in the initial weeks of his sentence has not assisted his case, as supervisor of his home detention sentence, Grace Foundation made a significant contribution to his failures both to comprehend his constraints and comply with them. I have no information on Mr Nelson-Bell’s conduct — since his readmission to his home detention sentence, after a month or so in custody — except for Ms Letele’s report of oral advice from Grace Foundation he is doing well. I am unable sensibly to address the Department’s application without that advice.

I have directed Mr Nelson-Bell’s counsel to file and serve a comprehensive report of Mr Nelson-Bell’s time since readmission to his home detention sentence, including any contemporaneous documents of record, by Friday, 31 March 2023, together with any further submission counsel cares to make. If the Department wishes then to respond in substance or submission, it should advise accordingly and by when.

[8]                 Regrettably, I remain without advice as to Mr Nelson-Bell’s supervision and oversight, despite both the Department’s and the Foundation’s roles in providing such. Counsel for the Department, Chris Howard, advises Mr Nelson-Bell presently again is in custody, after having been arrested in Auckland’s central business district at

3.00 am on 25 March 2023 on alleged breach of bail and curfew and subject of an investigation into an alleged assault. For the Foundation, David Letele observes:

William has made great strides in his rehabilitation journey thus far and we believe it would be counter-productive to send him back to prison now.

Considering his family background and the depth of inter-generational trauma and offending, William has made immense progress in the programme. There have been many ups and downs, as per usual for an individual with the rearing and environment that William has been raised in, but the development he has exhibited has far outweighed any regressions.

For many of our men, we often see an escalation of breaches when sentencing is approaching. They seem to get restless and self-sabotage without any rational thought to the consequences. This is not to disregard all the good he has made up to this point in his recovery.

We see hope for William. He has made marked improvement. The time period between his breaches is getting further apart and his thought processes, beliefs and cognizance has developed to a place where we know his life will be enriched should he be allowed to carry on his placement with Grace Foundation.

[9]                 I advised counsel, unless they required further to be heard, which could not then be accommodated until after the Court’s Easter vacation, I would deal with the Department’s application on the papers. Mr Howard consented; I have no response from Mr Nelson-Bell’s counsel, despite the Registry’s repeated enquiries of her. I am not prepared further to delay my decision.

[10]              I am satisfied Mr Nelson-Bell has failed to comply with detention conditions. Those failures go beyond the Foundation’s initial failure to maintain him at the home detention address. Plainly continuation of Mr Nelson-Bell’s sentence remains necessary in the interests of at least the community, as well as for him. I took account of his youth and background in discounts which enabled a home detention sentence. That sentence has proven not appropriate to meet sentencing’s multiple purposes in relation to him. I have had regard for the manner in which Mr Nelson-Bell has responded to the sentence. His own disregard for its conditions means it is not effective in holding him accountable for the harm he has caused or promoting in him a sense of responsibility for that harm. I am not provided with any concrete information as may permit me to consider his rehabilitation and reintegration would be advanced by any special conditions of home detention.

[11]              I will cancel my home detention sentence, and substitute the two-year sentence of imprisonment I could originally have imposed on him,13 adjusted to take account of the portion of the home detention sentence that remains unserved.14 Notwithstanding Mr Nelson-Bell was not compliant with the conditions of the ‘served’ portion of his home detention sentence, approximately six and a half months of the original home detention sentence remains unserved at the date of this judgment.

[12]              On the basis of my original sentence,15 I re-sentence Mr Nelson-Bell to one year and one month’s imprisonment.

—Jagose J

13     Sentencing Act, s 80F(4)(d).

14     Section 80G(2).

15     R v Nelson-Bell, above n 4, at [28].