R v Nelson-Bell [2022] NZHC 2796 (27 October 2022)

Last Updated: 6 April 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-11754 [2022] NZHC 2796

THE KING

v

WILLIAM NELSON-BELL

Date of hearing:	27 October 2022
Appearances:	C P Howard for the Crown V Letele for Mr Nelson-Bell
Date of sentence:	27 October 2022

SENTENCING COMMENTS OF JAGOSE J

Solicitors:

Kayes Fletcher Walker, Manukau Law and Justice Limited, Auckland

R v NELSON-BELL [2022] NZHC 2796 [27 October 2022]

[1] Mr Nelson-Bell, as you know, I am today to sentence you on your convictions for intentional damage (x 3),¹ participation in an organised criminal group² and aggravated burglary.³

[2] Your guilty pleas to those charges followed my indication you were likely to be sentenced to imprisonment for a period of no more than six years,⁴ which indication allowed I had yet to apply any personal mitigating factors to you, which could be significant in your case. Subject to any influential new information, that indication is now binding on me.⁵

Your offending

[3] I need first to cover off the background to your offending, so that people in the room understand what it is that I am sentencing you for.

[4] During daylight hours on 20 November 2020, there were a series of linked firearms incidents in Auckland’s Ōtara. These were in apparent inter-gang retaliation for actions carried out against another member of your gang, Michael Crawford, who led the offending. The incidents included drive-by shootings at three Ōtara addresses, leading to the intentional damage charges against you, and an armed home invasion at a fourth address, leading to the aggravated burglary charge against you. All were of properties associated with the other gang.

[5] Your personal involvement is difficult to discern from the summary of facts. You were a member of your gang’s Facebook Messenger group chat, on which the incidents were co-ordinated. You were arrested some days later, driving one of the cars involved in the incidents and in which then were found shotgun shells. And, obviously, you have pleaded guilty.

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 Cassidy [2022] NZHC 1951 at [21].

⁵ Criminal Procedure Act 2011, s 116(2).

[6] Presumably because of the inter-gang nature of the offending, I have no victim impact statements to consider. That is, frankly, as short-sighted as the offending itself.⁶

Personal circumstances

[7] You will turn 20 years old in a few weeks. This is your first brush with adult court, having turned 18 years old on the day of the offending. You are the father of a young child, of whom your grandparents have custody as they previously had of you. You presently are remanded on electronically-monitored bail to Grace Foundation, a faith-based rehabilitation centre.

—criminal history

[8] A charge of assault with intention to commit sexual violation in September 2019 was found proven against you in the Youth Court on 23 August this year.⁷ The present offending was carried out while you were remanded on bail in relation to that charge. You also are alleged to have offended on multiple occasions while on bail for the present offending, of nuisance offending but also threatening to kill, presenting a firearm and aggravated robbery (the last of those while on electronically-monitored bail).

—PAC report

[9] For your sentencing, I have a pre-sentence report prepared by the Department of Corrections. You largely declined to engage with the report-writer’s interview of you, who described you as “nonchalant” and “avoidant” with limited insight into the causes or effects of your offending. The report-writer assesses you as having a high risk of reoffending and causing harm to others, and recommends a sentence of electronically-monitored detention at a faith-based rehabilitation centre as effective antidote to your “unstructured and unbalanced lifestyle”.

6. After my sentencing of Mr Nelson-Bell concluded, Mr Howard explained victim impact statements had been submitted for Mr Crawford’s sentencing, which he had anticipated would have flowed through to me. They had not. I now have seen the one he handed up but plainly had no regard for it or others in sentencing Mr Nelson-Bell.

⁷ Crimes Act, s 129(2); and Police v MM [2022] NZYC 454.

—s27 report

[10] You asked I hear Anthony Jacobsen on your background and its relevance to your offending and sentence. From his interviews with you and others who know you, he explains your exceptionally dysfunctional childhood and adolescence led you to gang membership and offending. He observes you lack any other identity — through culture, family, whānau and community — which sentencing should seek to restore. He identifies the benefit in these respects you are drawing from your time at Grace Foundation, which you acknowledge has “woken [you] up to the opportunities” it offers. You say the Grace programmes reinforce your own responsibility for yourself. The Foundation’s leaders say you are a constructive participant, and at a pivotal moment now to be able to maintain your progress.

Approach

[11] As I explained in giving my indication, sentencing involves two steps.⁸ First, I indicate what sentencing point offending of these types would attract. That involves identifying the aggravating and mitigating features of your offending. Second, I would adjust that starting point up or down to take into account your personal circumstances.

[12] The usual purposes and principles of sentencing are relevant.⁹ They include holding you accountable for the harm you have done and getting you to accept responsibility for it. Your sentence must be proportionate to the offending’s seriousness, consistent with others for similar offending and the least restrictive outcome appropriate in all the circumstances.

[13] Of critical context here was Mr Crawford’s seven years and four months’ imprisonment sentence on his guilty pleas to three charges of the same intentional damage.¹⁰ Powell J there took the three shootings as the lead charges, for uplift by reference to the other offending (which, in Mr Crawford’s case, also included firearms and ammunition charges).¹¹

⁸ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

⁹ Sentencing Act 2002, ss 7–8.

¹⁰ R v Crawford [2022] NZHC 1588.

¹¹ At [13].

[14] Your sentence is to be consistent with Mr Crawford’s sentence,¹² subject to your own role in the overall offending and those aggravating or mitigating factors personal to you.¹³

Starting point

[15] Powell J took a starting point of six years’ imprisonment for Mr Crawford’s direct intentional damage offending,¹⁴ uplifted by two years for each his criminal organisation participation and indirect aggravated burglary offending.¹⁵ He arrived at that ten-year starting point with reference to comparable caselaw,¹⁶ the offending’s lack of any mitigating factors, and four aggravating factors, largely shared by your offending. Those are “brazen and reckless use of firearms in multiple suburban streets”, “in broad daylight with an absolute disregard for the public who were in the community at the time”, “on multiple days and at multiple locations, ultimately damaging more than nine properties and a vehicle”, and with “a high degree of planning and premeditation”.¹⁷

[16] The charges against you relate only to a single day’s mayhem, in which you played a lesser role than Mr Crawford’s lead. Nonetheless, direct intentional damage offending on that day only would justify a small reduction. You are convicted as a party to intentional damage offending, which means you share culpability, or responsibility or blame.

[17] My sentencing indication took a starting point of five years’ imprisonment for your intentional damage offending. I saw no reason to distinguish you from Mr Crawford on your alleged participation offending. That offending is not defined by the extent of your engagement in the intentional damage offending. Your participation is not otherwise distinct from Mr Crawford’s offending “carried out within [a gang]

¹² Sentencing Act, s 8(e).

¹³ R v Kohey (2003) 20 CRNZ 62 (CA) at [20].

¹⁴ R v Crawford, above n 10, at [17].

¹⁵ At [19] and [23].

¹⁶ At [14], citing R v Tamati [2012] NZHC 221, R v Jolley [2018] NZHC 93, R v Taipeti [2018]. NZHC 1482, and R v Waihape [2012] NZHC 198, each with six-year starting points except for the three-and-a-half year starting point for Jolley’s “foot soldiers”.

¹⁷ At [15].

context and in the context of inter-gang violence”.¹⁸ For parity, I uplifted the starting point by the same two years’ imprisonment, which incorporates a measure for the totality of the offending.¹⁹

[18] Mr Crawford’s two-year uplift for the aggravated burglary offending was combined with a fourth intentional damage offence, in neither of which did Mr Crawford “participate personally in the offending as it unfolded”.²⁰ The summary of facts does not contend you personally participated in the aggravated burglary either. Although aggravated burglary is the more serious offence, and therefore could be thought to carry a larger proportion of the two-year allocation, my indication split the uplift at one year. Totality also was addressed by that approach.²¹

[19] At this point, then, I had arrived at a starting point of eight years’ imprisonment for you. I have read your explanation now you became caught up in the group’s offending, were not involved in its planning or driving, but limited to “watching from the road” from one of the cars. That is new information of which I was not aware at the time I gave my indication. If reliable, it might have justified a starting point of six, rather than eight, years’ imprisonment. But the Crown has not had opportunity to respond to that explanation.

Adjustment for personal circumstances

—aggravating factors

[20] My indication then noted, while your intentional damage offending is aggravated by its connection with your gang participation,²² no further uplift was justified than was imposed for your participation offending. I said I would assess your offending while on bail together with any mitigating factors, otherwise as a nascent disregard for Court orders.

¹⁸ R v Crawford, above n 10, at [19].

¹⁹ At [19].

²⁰ At [20 and [23].

21. My sentencing indication mistakenly referred to “aggravated robbery” charges, meaning ‘aggravated burglary’: R v Cassidy, above n 4, at [13].

²² Sentencing Act, s 9(1)(hb).

—mitigating factors

[21] By reason also of parity with Mr Crawford, I will allow you the full 25 per cent discount for your guilty pleas. Thus I indicated your likely six years’ imprisonment, but subject to “any other personal mitigating factors” open to being drawn from reports then to be made available to me.

[22] Your youth seemed a likely basis on which your ultimate sentence may be reduced. That is because there are age-related neurological differences between young people and adults, meaning younger offenders may be less culpable or less responsible for their wrong-doing if driven by impulsivity, negative influences and peer pressure. In that context, I doubt you saw remand on bail as a material limitation. Youth also has greater capacity for rehabilitation, with longer-run community benefit, compared to the ‘crushing’ impact of longer terms of imprisonment. Any absence of contrition or remorse may be as indicative of immaturity.²³

[23] Your own account of your offending indicates your immaturity. You came away from family celebration of your birthday to join your gang’s activities, because that is what you did with friends, provided mutual support without question. You say you were not aware of the prior planning and did not directly engage with the firearms or home invasions. Your strutting presentation to the Corrections’ report-writer and denials of active involvement to Mr Jacobsen are indicative of your misplaced gang loyalty. You have an emerging comprehension such blind devotion may be to your detriment. On the other hand, you are now on the cusp of adulthood. It may be too late to expect you to acquire the discipline to change, to accept responsibility for your actions, despite Grace Foundation’s assessment you have taken the first steps toward re-establishing your own separate identity located in your family.

[24] In a range of roughly 10–40 per cent discounts for youth,²⁴ I take the midpoint of 25 per cent as the available discount for you. It recognises both your limited criminal history and your prospect for change, while acknowledging also your own decisions to offend at an increasingly responsible age. If your limited demonstrated

²³ Rolleston v R [2018] NZCA 611 at [28] and [36]; Churchward v R [2011] NZCA 531 at [77].

²⁴ Roberts v R [2020] NZCA 441 at [35]; BB (CA732/2012) v R [2013] NZCA 139 at [13].

remorse reflects your immaturity, the 25 per cent discount incorporates any discount available under that head.

[25] Sentencing principle also is to allow a discount for credible background factors causing impaired choice and (therefore) diminished moral culpability.²⁵ I have no difficulty in concluding a systemic background of familial dysfunction and cultural dislocation has led to your alternative gang support and, coupled with unquestioning participation in gang activities, the present offending.

[26] Especially given your own identification with the gang from an early age and the retaliatory nature of the offending, your ‘choice’ to avoid offending very materially was impaired. Your background’s disadvantage can be seen across generations of your family, from your parents’ and uncle’s affiliations and demises, to your own son’s custody. Your continued attendance at Grace Foundation appears to offer an opportunity to break the cycle, which opportunity you seem incentivised to pursue.

[27] Discounts of 15 per cent routinely are made under this head, with room for more in appropriate circumstances.²⁶ Your prospects for rehabilitation and reintegration here, demonstrated by your progress at the Grace Foundation, justify that ‘more’. The time for intervention plainly is now.²⁷ I will allow a 25 per cent discount here also, any higher discount risking double-counting your youth.

[28] In short, those are discounts of 75 per cent, bringing your final sentence to two years’ imprisonment. As a short-term sentence, it is substitutable with a sentence of home detention.²⁸ Taking into account sentencing’s multiple purposes, I am satisfied home detention in active rehabilitation programmes at the Grace Foundation is the least restrictive outcome appropriate in the circumstances. It holds you accountable for your part in the group offending, while promoting your sense of responsibility for that harm and assisting in your rehabilitation and reintegration.

²⁵ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [161]–[162]; Poi v R [2020] NZCA 312 at

[32]–[51]; and Carr v R [2020] NZCA 357 at [55].

²⁶ Tipene v R [2021] NZCA 565 at [22]–[23], citing Carr v R, above n 25, at [65]–[66].

²⁷ Nuku v R [2022] NZCA 11 at [45].

²⁸ Sentencing Act, s 15A.

[29] I want to be very clear, Mr Nelson-Bell, you will never again enjoy mitigatory discounts of this scale. Your youth at the time of your offending already is well in your past. You can expect any further sentencings to treat you as an adult, as may be the case with any convictions for your alleged offending on bail. And if you pass on your family’s and other support now in preference for retaining your gang ties, the opportunity you are here offered will never return. I want you to understand that to the very bottom of your heart.

Sentence

[30] Mr Nelson-Bell, please stand. On your convictions, I sentence you to one year’s home detention. You may stand down.

—Jagose J