Nicholson v Police - [2019] NZHC 493

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-421

[2019] NZHC 493

BETWEEN
DAVID NICHOLSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 March 2019

Counsel:

R Mansfield for Appellant F Culliney for Respondent

Judgment:

20 March 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 20 March 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

NICHOLSON v POLICE [2019] NZHC 493 [20 March 2019]

[1] Mr Nicholson pleaded guilty to three charges of indecently assaulting a boy between 12 and 16 years. This offending occurred between 1 September 1997 and 4 December 1997. He was sentenced to two years’ and four months’ imprisonment, comprising a start point of three years 10 months, a discount of 25 per cent for personal mitigating factors and a 20 per cent discount for guilty plea.1 This was his third sentence for offending of this kind, alongside a sentence of three years’ imprisonment in 2002 for an attempted sexual violation.

[2]The central issues raised by this appeal are:2

(a)Whether the Judge should have taken a totality approach to Mr Nicholson’s offending for fixing sentence; and

(b)If so, was the sentence imposed manifestly excessive.

Facts

[3] The complainant, B, was 15 and a ward of the state at the time of the offending. Mr Nicholson was 44. Mr Nicholson groomed B with a dinner, clothes, and a trip to the casino. This lead to Mr Nicholson and B watching pornography and masturbating together at Mr Nicholson’s home. On another occasion, again at Mr Nicholson’s home, B was asked to engage in sexual intercourse, which he initially declined. Mr Nicholson persisted, and made an unsuccessful attempt at anal intercourse. He then suggested B consume amyl nitrate, which he did. B recalls feeling “wasted”. Penetrative sex followed. B and the complainant continued to regularly meet over the following months. During these times they would engage in sexual acts, including penetrative anal sex as well as oral sex. This continued until B left state care when he turned 16.

Other offending

[4]Mr Nicholson has convictions for similar offending including:

1 R v Nicholson [2018] NZDC 21463.
2 Mr Mansfield, for the appellant, did not pursue an independent challenge to the starting point. He did, however, maintain for the totality assessment that a starting point of three years 10 months was too high and that the Judge exaggerated the consequences for the victim.

(a)Two indecent acts with a boy aged 12-16 in the period 8 June 1988 and 17 June 1988. He was sentenced on 18 August 1988 to 10 months’ imprisonment.

(b)An indecent assault on a boy aged 12-16 and offensive use of a telephone in the period 29 October and 4 November 1995. He was sentenced to one year six…

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 Nicholson v Police

Details

AGLC: Nicholson v Police [2019] NZHC 493
Case: [2019] NZHC 493
Decision Date: 20 March 2019

CaseChat Overview and Summary

David Nicholson, who pleaded guilty to three charges of indecently assaulting a boy between 12 and 16 years old between 1 September 1997 and 4 December 1997, was sentenced to two years and four months' imprisonment. Nicholson appealed the sentence, arguing that the judge should have adopted a totality approach when fixing the sentence, and that the sentence imposed was manifestly excessive. The central issues raised by this appeal were whether the judge should have taken a totality approach to Mr Nicholson's offending for fixing sentence and if so, whether the sentence imposed was manifestly excessive. The facts of the case involved a 15-year-old victim, who was a ward of the state, and Mr Nicholson, who was 44. Mr Nicholson groomed the victim with a dinner, clothes, and a trip to the casino, leading to sexual acts between them. The court found that Judge Ronayne did not materially err by not considering the totality of the two sets of offending when fixing the sentence for the 1997 offending. While the hypothetical combined sentence was three months less than the actual, the court was not satisfied that the sentence imposed was manifestly excessive. The appeal against the sentence was dismissed.

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Orders