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 not just one. Secondly, it involved the brazen taking of property that you knew did not belong to the person who owed you money. When the victim told you the police were likely to be involved, you then made threats to burn his house down and with him in it. These factors take the theft charge out of the usual run of charges of this type. It was effectively theft accompanied by threats of violence against property.

[7]                 The Crown contends that a starting point of around 18 months imprisonment is appropriate. I consider that to be too high because it would be more appropriate to a reflect a charge of burglary and you are not charged with burglary. I consider a starting point of ten months imprisonment is appropriate to reflect the aggravating features to which I have referred.

Aggravating factors

[8]                 The offending occurred at a time when you were on bail on a charge of receiving stolen property. You were sentenced to eight months home detention on that charge on 12 November 2018. It must therefore have been a reasonably serious charge of its type. The fact that you committed this offence whilst on bail on a charge of receiving stolen property requires an uplift and I apply an uplift of one month to reflect that factor. This produces a sentence of 11 months imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[9]                 I am prepared to give you discounts for three mitigating factors. The most significant of these is that you spent 12 days in custody after you were arrested. You then spent approximately two months on EM bail before you were sentenced to eight months home detention on 12 November 2018. You then spent a further 11 months on EM bail after you had completed the sentence of home detention. This means you have spent a total of approximately 13 months on EM bail and 12 days in custody. I need to give you credit for that in fixing the current sentence.

[10]             The fact that a person has been on EM bail does not result in a reduction on a month by month basis. Rather, a discount is given on a lesser basis. I consider it appropriate to make a deduction of five months to reflect the fact that you have spent a considerable time on EM bail and in custody.

[11]             I am also minded to give you a modest discount to reflect the factors referred to in the s 27 report prepared by your mother. There were clearly difficulties in your upbringing. It is arguably difficult to find a direct link between those and your present offending, but I take it into account to the extent that I am prepared to reduce the sentence by one month to reflect those factors.

[12]             The Crown acknowledges a full 25 per cent is available to reflect guilty pleas entered as soon as the charges were reduced to their present form. This results in a discount of three months. It follows that I can apply deductions totalling nine months to the original sentence of 11 months imprisonment.

[13]             I do not consider it appropriate to sentence you to two months imprisonment given the lengthy time these matters have been hanging over your head. I am not, however, prepared to convict and discharge you as your counsel suggests. That would be to trivialise the nature of the offending and that should not be done.

Sentence

[14]             On each of the charges to which you have pleaded guilty I sentence you to six months supervision and order you to perform 80 hours community work.

[15]Stand down.

Lang J