Nicholas v The Queen - [2019] NZHC 3312

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-406-17

[2019] NZHC 3312

KANE NICHOLAS

v

THE QUEEN

Hearing (via AVL): 13 December 2019

Counsel:

R A Harrison for Appellant

J W Cameron for Respondent

Judgment:

13 December 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] Prior to the commencement this morning of the hearing of this appeal against sentence, Mr Harrison, for the appellant, sought an adjournment. He had previously sought an adjournment on the grounds that the sentencing Court did not have available before it a report under s 27 in relation to cultural matters.

[2] It appears that initially counsel who appeared in the Court below, who was not Mr Harrison, had made arrangements to obtain a report under s 27 but that the person from whom the report had been commissioned became unavailable at some point with the result that no report from that person was available to the Court.

NICHOLAS v R [2019] NZHC 3312 [13 December 2019]

[3] Counsel, then appearing for the appellant, addressed this issue by having the appellant prepare what was described as an affidavit. Although it was not sworn, it is a document that was signed by Mr Nicholas. It is part in typewriting and attached to it was a further section in what appears to be the handwriting of the appellant himself. That document was tendered by the then counsel for the appellant to the Court, as being a document which spoke to the issues which might otherwise have been covered in a s 27 report. There is no doubt that it does refer to a number of factors in the background of the appellant which are of a cultural nature and are the sorts of factors that the Courts in similar cases have had regard to.

Facts

[4] I would also note that before the Court, in relation to the sentencing of this matter, as well as the material provided by the appellant himself focussing particularly on cultural issues, the Court also had a Provision of Advice to Court report which addressed in a much less detailed way, some of these issues.

[5] However, the Court also, of particular relevance, had before it, an unusually extensive psychological report which set out in some detail the various background issues including the deprived childhood that the appellant had at least from the ages of one to seven when he resided with his father.

[6] The report also identified a significant improvement in the appellant’s behaviour when he returned to his mother’s custody. It appears, according to the mother, that this occurred at about the age of seven although the appellant’s recollection was that it was at the age of 10.

[7] The report itself also addressed issues relating to the appellant’s psychological wellbeing and the issues of the extent to which it could be said that he suffered from any particular psychological or psychiatric disorder. It ultimately concluded that there was…

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 3312
Case: [2019] NZHC 3312
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the case of Nicholas v The Queen, the Court was tasked with considering an appeal against the sentence imposed on the appellant by the District Court. The appellant, Kane Nicholas, sought an adjournment to obtain a cultural report under section 27 of the Sentencing Act, which was not available at the time of the original sentencing hearing. Counsel for the appellant, Mr. Harrison, submitted that the cultural report was necessary to provide insight into the appellant's background and its potential impact on his offending behaviour. The Court had before it an affidavit from the appellant, which included cultural information, as well as a detailed psychological report.

The legal issues in this case centred around the necessity of a section 27 report for the Court to properly consider cultural factors in sentencing and on appeal. The Court needed to determine whether the information already available to it was sufficient for the purposes of the appeal, or if a formal report was required. The Crown argued that a section 27 report would have a modest effect on the outcome given the seriousness of the offending, and that the psychological report already before the Court provided a more focused understanding of the appellant's motivations.

The Court found that while cultural factors could be taken into account in sentencing, the case law suggested that their effect would be modest in cases of serious offending. The Court was satisfied that the information already before it, including the appellant's affidavit and the psychological report, was sufficient to consider the appellant's cultural background and its potential impact on his offending. The Court concluded that a formal report from Ms. Stephens, a respected academic with expertise in Māori and the legal system, was not necessary to establish the purpose for which such reports are normally obtained. Therefore, the appeal proceeded without an adjournment.

The Court's decision was based on the premise that while cultural reports can be valuable, they are not the sole source of relevant cultural information. The Court acknowledged that it was entitled to consider the appellant's cultural background in assessing his overall culpability and in relation to the appeal. The Court was satisfied that the information already available to it was sufficient to make a fair assessment of the appellant's case. The appeal proceeded without an adjournment.

Orders