NELSON v POLICE [2019] NZHC 2114

NELSON v POLICE [2019] NZHC 2114 [27 August 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-000049[2019] NZHC 2114BETWEEN JOSEPH NELSONAppellantAND NEW ZEALAND POLICERespondentHearing: 27 August 2019Counsel: GA Walsh for AppellantASC Alcock for RespondentJudgment: 27 August 2019ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:Crown Solicitor, Hamilton.GA Walsh, Hamilton.[1] Mr Joseph Nelson appeals his two-year, three-month prison sentence. It iscommon ground the Judge made a mistake. Judge M L S F Burnett said the offendingoccurred in April 2018, when it occurred in October 2018. This influenced the guiltyplea discount, which the Judge set at 10 percent on the basis it had taken Mr Nelson"some time" to plead guilty.1 However, the ultimate issue is whether the sentence ismanifestly excessive. A sentence appeal may be allowed only when there has been anerror and a different sentence should have been imposed.2[2] The victim is the defendant's partner. On the afternoon of 3 October 2018,Mr Nelson punched her to the face. He did so as he believed she was "flirting" withhis cousin. Much more serious violence followed in the early hours of the nextmorning when the couple argued over car keys.[3] Mr Nelson dragged the victim from the porch and then "fly-kicked" her to thehead. She fell to the ground. Mr Nelson then repeatedly kicked the victim in the head.She tried to protect herself by covering her head with her arms. Mr Nelson pulled herarms away and continued to kick her to the head. He then stomped once on thevictim's head. And left.[4] The victim lost two teeth. She suffered swelling to her face and bruising to anunderarm and collar bone. She also suffered "mild concussion". Both assaultsoccurred in breach of a protection order.[5] Charges were laid 12 October 2018. Mr Nelson pleaded guilty on 10 May2019 following a plea arrangement. A charge of injuring with intent to cause grievousbodily harm was amended to a charge of injuring with intent to injure. The finalconstellation of charges involved this charge, a charge of male assaults female (for thepunch to the face on 3 October), two charges of breaching a protection order, anddriving while disqualified. When Mr Nelson drove away, he was a disqualified driver.[6] The Judge adopted a 22-month starting point on the primary charge of injuringwith intent and added three months for the rest of the offending. The Judge added a1 Police v Nelson [2019] NZDC 13217 at [11].2 Criminal Procedure Act 2011, s 250.further five months because of Mr Nelson's bad criminal record. Mr Nelson had fiveearlier convictions for breaching a protection order and 12 earlier convictions fordomestic violence.[7] Mr Nelson takes no issue with the starting point or uplifts. He contends theguilty plea discount was inadequate because of the Judge's mistake about timing.Mr Nelson also contends the Judge should have made an allowance for remorse.Mr Nelson wrote a short letter to the Court and victim, and had been a model prisonerwhile remanded in custody before sentencing. Mr Nelson submits his sentence shouldhave been about two years' imprisonment.[8] I accept the Judge's discount was a little low for the reason Mr Nelsonidentifies. A discount of about 15 percent was appropriate. A higher discount was not.The pleas were not prompt and Mr Nelson benefited from the plea arrangement. It isclear from the Supreme Court's decision in Hessell v R the latter is a relevantconsideration when assessing guilty-plea discount.3[9] The Judge did not err in making no allowance for remorse or rehabilitation.The pre-sentence report was pessimistic. It said Mr Nelson posed a very high risk ofharm to intimate partners. Mr Nelson disagreed with aspects of the summary of facts.Nothing exceptional arose in relation to remorse or rehabilitation.[10] A 15 percent discount produces a sentence of 25 and a half months'imprisonment, not 27 months' imprisonment. The one-and-a-half-month difference,could well be tinkering. In any event, a more significant point arises. The Judge couldeasily have adopted a higher starting point. Mr Nelson's violence on 4 October wasvery serious.[11] In Thompson v Police,4 Mr Thompson hit his partner to the head once with awooden chair. She fell forward onto concrete and suffered facial injuries. The first-instance Judge adopted a two-year starting point. Simon France J said there was "nomerit" in the challenge to this; he described the attack as "shameful". While3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60].4 Thompson v Police [2017] NZHC 3039.Mr Thompson used a weapon, Mr Nelson's offending is more serious. He repeatedlykicked his partner to the head, including while she was on the ground. He also pulledher arms away to continue the attack. He also stomped on her head. This cowardlyviolence could have resulted in life-changing—or life-threatening—injury.[12] If Judge Burnett had adopted a 24-month starting point—which would easilybe within range—and applied the same uplifts but discounted the sentence by15 percent, Mr Nelson would have received a 27-month sentence of imprisonment, thesame sentence as that actually imposed by the Judge. So, while the Judge erred, thesentence ought not be different.[13] The appeal is dismissed...Downs J