Nicholas v The Queen - [2019] NZHC 3426

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-406-17

[2019] NZHC 3426

KANE NICHOLAS

v

THE QUEEN

Hearing (via AVL): 13 December 2019

Counsel:

R A Harrison for Appellant

J W Cameron for Respondent

Judgment:

19 December 2019

JUDGMENT OF CHURCHMAN J

[1] Kane Nicholas was convicted (following the entry of guilty pleas) on 11 charges that included:

(a)representative charge of indecent assault;1

(b)sexual violation by unlawful sexual connection (x3);2

(c)male assaults female;3

(d)assault with intent to injure;4

1      Crimes Act 1961, s 135 (maximum sentence of seven years’ imprisonment).
2      Sections 128 and 128B (maximum sentence of 20 years’ imprisonment).
3      Section 194 (maximum sentence of two years’ imprisonment).
4      Section 193 (maximum sentence of three years’ imprisonment).

NICHOLAS v R [2019] NZHC 3426 [19 December 2019]

(e)abduction for sexual connection;5

(f)injuring with intent to injure (x2);6

(g)strangulation;7 and

(h)theft.8

[2] The offending all occurred in Blenheim on 23 May 2019 and the victim in all of the offending was unknown to Mr Nicholas prior to that day (the May offending).

[3]Mr Nicholas also pleaded guilty to:

(a)breaching bail between 1 May 2018 and 8 April 2019 (x5);

(b)receiving stolen goods between 28 October 2018 and 18 December 2018 (x3);9

(c)theft (on 13 April 2019);10 and

(d)representative charge of unlawfully using a document (the other offending).11

[4] These offences occurred in Gisborne. They resulted in a six-month uplift from the lead charges of unlawful sexual connection.

[5] For all charges, Mr Nicholas was sentenced by Judge Zohrab to nine years six months’ imprisonment with a 50 per cent minimum period of imprisonment (MPI) (being four years eight months’ imprisonment).12

5      Section 208 (maximum sentence of 14 years’ imprisonment).
6      Section 189(2) (maximum sentence of five years’ imprisonment).
7      Section 189A (maximum sentence of seven years’ imprisonment).
8      Sections 219 and 223(b) (maximum sentence of seven years’ imprisonment).
9      Sections 246 and 247(c) (maximum sentence of three months’ imprisonment).
10     Sections 219 and 223(d) (maximum sentence of three months’ imprisonment).
11     Section 223(1)(b) (maximum sentence of seven years’ imprisonment).
12     R v Nicholas [2019] NZDC 20109.

[6] He now appeals his sentence both on the basis that the finite sentence is manifestly excessive and that an MPI was not justified in the circumstances. The Crown opposes the appeal.

Relevant history of this appeal

[7] The appeal was lodged within time, but the original hearing date was adjourned on 13 November 2019 to 13 December 2019 (at Mr Nicholas’ counsel, Mr Harrison’s, request). The reason for the adjournment was to allow Mr Harrison adequate time to prepare the appeal.

[8] On 28 November, Mr Harrison filed a memorandum with the Court seeking a second adjournment of the hearing. The basis for the request was that following discussions with trial counsel:

... it is clear that a s 27 cultural report had been ordered for sentence but due to the constraints of time, the report writer withdrew from completing the report. What…

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 Nicholas v The Queen

Details

AGLC: Nicholas v The Queen [2019] NZHC 3426
Case: [2019] NZHC 3426
Decision Date: 19 December 2019

CaseChat Overview and Summary

The case of Nicholas v The Queen involves an appeal by Kane Nicholas against his sentence imposed by the District Court. Nicholas was convicted of a number of serious charges, including sexual violation by unlawful sexual connection, male assaults female, and assault with intent to injure. The District Court imposed a sentence of nine years and six months imprisonment with a 50 per cent minimum period of imprisonment. Nicholas appeals his sentence on the basis that the finite sentence is manifestly excessive and that an MPI was not justified in the circumstances. The Crown opposes the appeal. The Court considered the appellant's arguments, including the starting point of the sentence, the need for a s 27 cultural report, and the imposition of an MPI. The Court found that the starting point was appropriate, that a s 27 cultural report was not necessary, and that the imposition of an MPI was justified. The Court dismissed the appeal.

Orders