R v Nielsen - [2020] NZHC 1222

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-027-1265

[2020] NZHC 1222

THE QUEEN

v

MARCUS NIELSEN

Hearing:
4 June 2020

(Heard at Auckland)

Appearances:

S Barnaart for Crown

J A G Moroney for Defendant

Judgment:

4 June 2020

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Whangarei Thode Utting, Auckland

R v NIELSEN [2020] NZHC 1222 [4 June 2020]

[1] Mr Nielsen, you appear for sentence today having pleaded guilty to one charge of theft1 and one charge of committing a threatening act.2 The maximum penalty for the charge of theft is seven years imprisonment, whilst that for the charge of committing a threatening act is three years imprisonment.

The charges

[2] The charges were laid as a result of an incident that occurred around midday on 29 June 2018. On that date you and two others went to the victim’s address in Paihia. You had sent the victim a message earlier in the day saying you would be over to see him some time that day. You went into the property and told the victim you were here to collect the money he owed you. The summary records that the victim knew you were there to collect payment of a debt owing by him to you. When he refused to give you anything, you said “I will just take something from the house”. You then picked up a Samsung 55 inch television set valued at more than $1,000 and removed it from the address. You did so despite the fact that the victim told you the television did not belong to him and that it belonged to his mother.

[3] When the victim told you that his mother would probably go to the police, you replied, “If you do go to the police I will come back and burn the house down”. When the victim said he would call the police, you told him that if he did you would be coming back to burn the house down with him in it.

[4] The police subsequently recovered the television set from your house and returned it to the victim. As a result the victim and his mother did not lose any property.

Starting point

[5] Charges of this nature would not normally be determined in this Court. They are in this Court because you were originally charged with much more serious offences. Shortly before your trial the Crown agreed to a resolution under which these were reduced to the charges to which you have now entered guilty pleas.

1 Crimes Act 1961, ss 219(1)(a) and 223(b).
2 Crimes Act 1961, s 308(a).

[6] Setting a starting point for your offending is not particularly easy, but I consider it has several aggravating features. The first is that you went to the victim’s address accompanied by two others. That, it can readily be inferred, was designed to intimidate the victim because he knew he was at risk from three persons and…

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 Nielsen

Details

AGLC: R v Nielsen [2020] NZHC 1222
Case: [2020] NZHC 1222
Decision Date: 4 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand at Whangarei, the defendant, Marcus Nielsen, faced sentencing after pleading guilty to charges of theft and committing a threatening act. These charges stemmed from an incident on June 29, 2018, where Nielsen, along with two others, went to the victim's address in Paihia to collect money owed to him. Upon refusal, Nielsen stole a Samsung 55-inch television and made threats to burn down the victim's house if the police were contacted. The stolen television was later recovered by the police and returned to the victim. The court had to determine the appropriate sentence considering the nature of the offences and any relevant mitigating or aggravating factors.

The legal issues the court needed to address included establishing an appropriate starting point for sentencing, considering the aggravating factors such as the involvement of multiple offenders and the threats made, and evaluating mitigating factors including the time Nielsen had already spent on electronic monitoring bail and the difficulties in his upbringing. The Crown argued for a starting point of 18 months imprisonment, which the judge deemed too high for the nature of the charges. The court also had to account for the defendant's time spent on bail and the impact of his guilty pleas.

The judge, Lang J, concluded that an 11-month starting point was appropriate, reflecting the aggravating factors but not equating to a charge of burglary. An uplift of one month was added because Nielsen committed the offence while on bail for another serious charge. After applying various mitigating factors, including time spent on bail, difficulties in upbringing, and a discount for the early guilty plea, the total deductions amounted to nine months. Consequently, the court sentenced Nielsen to six months' supervision and ordered him to perform 80 hours of community work for each charge. The judge deemed a custodial sentence inappropriate given the time already spent on bail, but also rejected the suggestion of a conviction and discharge, considering the seriousness of the offending.

The final orders of the court were that Nielsen be sentenced to six months' supervision and ordered to perform 80 hours of community work for each of the charges to which he pleaded guilty.

Orders