Nicholls v Police - [2016] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000196 [2016] NZHC 1979

BETWEEN
CORY JAMES NICHOLLS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 August 2016

Counsel:

A Speed for Appellant
Z Hamill for Respondent

Judgment:

23 August 2016

JUDGMENT OF DOWNS J

Solicitors/Counsel: A Speed, Auckland.
R Chambers, Auckland.
Kayes Fletcher Walker, Auckland.

NICHOLLS v POLICE [2016] NZHC 1979 [23 August 2016]

[1] Before I discuss the appeal, I record a matter that arose at the outset of the hearing. Counsel for the appellant, Mr Chambers, did not appear. He is, I gather, overseas. Unfortunately Mr Chambers forgot to arrange for anyone to appear for the appellant on his, that is Mr Chambers’, behalf. But at short notice Mr Speed very kindly appeared to convey the position and to offer an apology, which I accept.

[2] Mr Speed said he could be ready to argue the appeal if given a little more time, but quite properly noted he did not have any specific instructions from the appellant. Mr Speed is in the same set of chambers as Mr Chambers.

[3] For the Crown Ms Hamill was neutral as to whether the appeal should proceed in these circumstances, while noting it had been adjourned once previously.

[4] I concluded the interests of justice favoured the case being heard and determined because:1

(a) The issues are simple and everyone agrees that to be so.

(b) Mr Chambers had filed full written submissions, which I had read.

(c) The only instructions that could be given would be to proceed with the appeal, abandon it, or seek to have it adjourned until Mr Chambers returned. No particular factual instructions would likely arise because the appellant pleaded guilty to an agreed summary of facts, and as noted I have had the benefit of Mr Chambers’ written submissions and now helpful oral argument from Mr Speed.

[5] And so to the appeal itself. It is a sentence appeal. The appellant was sentenced to a term of imprisonment for two years and six months on a charge of aggravated robbery pursuant to s 235 of the Crimes Act 1961.2 The appellant contends the sentence is manifestly excessive, largely by reference to the starting point of three years’ imprisonment adopted by Judge Field. The offending and
sentencing Judge’s methodology can be described briefly.

1 Section 325(2)(b) of the Criminal Procedure Act 2011 provides a party to an appeal may be represented by a lawyer at the hearing of the appeal. I was satisfied the appellant had the benefit of legal representation for the reasons set out above.
2 R v Nicholls [2016] NZDC 10650; maximum penalty 14 years’ imprisonment.

[6] The appellant and a co-offender, Mr Tonga, were charged with aggravated robbery following events on 17 July 2015. At approximately 2.15 pm that day, Mr Tonga knocked on the victim’s door wearing a Black Power t-shirt. Mr Tonga asked the victim if he wanted to buy any weed, and when the victim declined, Mr Tonga walked…

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.

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Details

Case: [2016] NZHC 1979
Decision Date: 23 August 2016

CaseChat Overview and Summary

Cory James Nicholls appealed against his sentence for aggravated robbery, arguing that the two-year and six-month term of imprisonment was manifestly excessive. Nicholls contended that the sentencing judge had erred in his assessment of the criminality of the offending, particularly by adopting a three-year starting point. The respondent, New Zealand Police, argued that the sentence was appropriate. The central issue for the High Court was whether the sentence imposed by the sentencing judge was manifestly excessive. The Court considered the appellant's role in the offence, the judge's adoption of a three-year starting point, and the arithmetic in relation to mitigating features. The Court found that the sentencing judge was entitled to conclude that Nicholls was there to provide additional "muscle" if needed, and that the adoption of a three-year starting point was appropriate given the nature of the offence. The Court also rejected the argument that it was not open to the judge to uplift the starting point by reference to Nicholls' criminal history. Ultimately, the Court found that the sentence was not manifestly excessive and dismissed the appeal.

The High Court dismissed Nicholls' appeal against his sentence for aggravated robbery. The Court found that the sentence of two years and six months' imprisonment was not manifestly excessive and that the sentencing judge's methodology was appropriate. The Court rejected Nicholls' contention that the starting point should have been lower and that the judge erred in uplifting the starting point by reference to Nicholls' criminal history. The Court concluded that the sentence was appropriate and that the appeal should be dismissed.

Orders