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Nicholl v The King

Nicholl v The King

Case [2024] NZHC 1638 20 June 2024

Appeal

Sentencing

Breach of Contract

Unconscionable Conduct

Restitution

Criminal Law

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-73

[2024] NZHC 1638

BETWEEN
RICKY WILLIAM NICHOLL

Appellant

AND

THE KING

Respondent

Hearing: 5 June 2024

Appearances:

K J Beaton KC for the Appellant G L Collett for the Respondent

Judgment:

20 June 2024

JUDGMENT OF ROBINSON J

[Sentence appeal]

Solicitors/Counsel:
K J Beaton KC, Christchurch Crown Solicitor, Christchurch

NICHOLL v R [2024] NZHC 1638 [20 June 2024]

Introduction

[1] On 1 November 2023 Mr Ricky Nicholl accepted a sentence indication and pleaded guilty to the following charges:

(a)two charges of being a party to dangerous driving causing death;1

(b)being a party to dangerous driving causing injury;2 and

(c)attempting to pervert the course of justice.3

[2] Judge Lynch indicated a starting point of three years and six months’ imprisonment on the driving charges, with an uplift of six months for attempting to pervert the course of justice. Judge Lynch also indicated a discount of 12.5 per cent for the appellant’s guilty plea.

[3] On 5 March 2024 Judge Lynch sentenced the appellant to two years, five months and two weeks’ imprisonment.4 In doing so the Judge:

(a)applied a five per cent uplift for the appellant’s previous convictions (and an additional charge of operating a vehicle with sustained loss of traction); and

(b)allowed credits of 43 per cent for personal mitigating factors, including the indicated 12.5 per cent discount for the appellant’s guilty plea.

[4] Judge Lynch also convicted and discharged the appellant on a charge of driving a motor vehicle with sustained loss of traction.5

[5]The appellant appeals his sentence.

1      Land Transport Act 1998, s 36AA(1)(b). Maximum penalty of 10 years’ imprisonment or a
$20,000 fine.
2      Land Transport Act, s 36(1)(a). Maximum penalty of five years’ imprisonment or a $20,000 fine.
3      Crimes Act 1961, s 117(e). Maximum penalty of seven years’ imprisonment.
4      R v Nicholl [2024] NZDC 4651.
5      Land Transport Act, s 36A(1)(c). Maximum penalty of five years’ imprisonment or a $20,000 fine; and minimum one year disqualification from holding or obtaining a driver license.

Background

The relationships

[6] The appellant was involved in dangerous driving which tragically caused the death of his cousin, Mark Nicholl Junior, and a family friend, William Clark.

[7] The appellant was charged as a party to the principal offending of Shannon Nicholl, who is the appellant’s cousin and Mark Nicholl Jnr’s brother. Shannon Nicholl suffered severe head injuries in the incident. He was found unfit to stand trial.

[8] The appellant was also charged alongside his uncle Mark Nicholl Senior. Mr Nicholl Snr is the father of Mark Nicholl Jnr and Shannon Nicholl. Mr Nicholl Snr was also charged as a party to his son Shannon’s principal offending. Mr Nicholl Snr declined a sentence indication and was acquitted after a jury trial in November 2023.

The offending

[9] The facts as accepted by the appellant through his guilty pleas are…

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 Nicholl v The King

Details

AGLC: Nicholl v The King [2024] NZHC 1638
Case: [2024] NZHC 1638
Decision Date: 20 June 2024

CaseChat Overview and Summary

Ricky William Nicholl, the appellant, appealed against his sentence for being a party to dangerous driving causing death, dangerous driving causing injury, and attempting to pervert the course of justice. The sentencing judge, Judge Lynch, had indicated a starting point of three years and six months’ imprisonment on the driving charges, with an uplift of six months for the attempt to pervert the course of justice. The judge also indicated a discount of 12.5 per cent for the appellant’s guilty plea. Ultimately, the judge sentenced the appellant to two years, five months and two weeks’ imprisonment. The appellant argued that the sentence was manifestly excessive due to errors in calculating the uplift for previous convictions and the credits for personal mitigating factors. The court assessed the appellant's submissions and found no errors in the sentence. The starting point was well within the range available to the sentencing judge. While the 10 per cent discount for the appellant’s remorse and willingness to engage in restorative justice could have been higher, it was not so low as to be an error requiring correction on appeal. The 10 per cent discount for the appellant’s neurodiversity was also within the range reasonably available. The 7.5 per cent discount for the impact of imprisonment on the appellant’s child was within the range reasonably available, taking into account the relevant Court of Appeal judgments. The appellant’s business was not a matter for the court to take into account. The appeal was dismissed.

Orders