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…

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 Nelson-Bell

Details

AGLC: R v Nelson-Bell [2023] NZHC 799
Case: [2023] NZHC 799
Decision Date: 17 April 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Nelson-Bell involved the defendant, William Nelson-Bell, who had been sentenced to home detention for various criminal offenses. The Department of Corrections applied for the cancellation of Nelson-Bell's home detention sentence, seeking its substitution with imprisonment due to his failure to comply with the conditions of his detention. The court was required to determine whether the defendant had breached the conditions of his home detention sentence and, if so, whether his sentence should be cancelled and substituted with imprisonment.

The court found that Nelson-Bell had indeed failed to comply with the conditions of his home detention sentence. The breaches went beyond the initial failure of the Grace Foundation, which was responsible for supervising Nelson-Bell's home detention, to maintain him at the designated home detention address. The court held that the continuation of Nelson-Bell's home detention sentence was no longer appropriate, as it was not effectively holding him accountable for the harm he had caused or promoting a sense of responsibility for that harm. Additionally, the court found that there was insufficient information to suggest that Nelson-Bell's rehabilitation and reintegration would be advanced by any special conditions of home detention.

The High Court decided to cancel Nelson-Bell's home detention sentence and substitute it with a sentence of imprisonment, adjusted to account for the portion of the home detention sentence that remained unserved. The court re-sentenced Nelson-Bell to one year and one month's imprisonment, based on its original sentence. This decision took into consideration Nelson-Bell's youth, background, and the multiple purposes of sentencing, which had not been met by the home detention sentence.

Orders