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Nicol v Police

Nicol v Police

Case [2022] NZHC 1771 22 July 2022

Sentencing

Appeal

Addiction

Discount for Time Spent on Bail

Mitigating Factors

Rehabilitative Justice

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-404-165

[2022] NZHC 1771

BETWEEN
AMY NICOL

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing: 19 July 2022

Appearances:

J Scott for Appellant

S-L Litt for Respondent

Judgment:

22 July 2022

JUDGMENT OF HARVEY J

[on appeal against sentence]

This judgment was delivered by me on 12.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Whangarei Thode Utting, Albany

NICOL v NEW ZEALAND POLICE [2022] NZHC 1771 [22 July 2022]

Introduction

[1] Amy Nicol pleaded guilty to six charges of offering to supply methamphetamine1 and one charge of possession of methamphetamine for the purpose of supply.2 On 9 May 2022, Judge D J McDonald imposed a sentence of two years and four months’ imprisonment.3

[2]Ms Nicol now appeals that decision arguing that the sentencing Judge:

(a)failed to take account of her role in the offending;

(b)imposed an excessive uplift for prior convictions;

(c)gave insufficient weight to her personal mitigating factors; and

(d)ultimately failed to commute the sentence of imprisonment to one of home detention.

The offending

[3] On 9 July 2020, Vodafone New Zealand, in response to a production order, provided Ms Nicol’s telecommunications data to police. That information revealed that on six occasions Ms Nicol offered to supply methamphetamine.4 On 6 June 2020, Ms Nicol received a text from an associate enquiring whether she had methamphetamine for sale, and in reply she offered to supply half a gram. The pair then organised to meet. Later, Ms Nicol received a request from a second unidentified associate, who she offered three grams of methamphetamine for sale. The pair then discussed how much the purchaser already owed Ms Nicol for previous sales.

[4] On 16 June 2020, Ms Nicol received a text from a third unknown associate asking for a “whole” because they had “a couple pple wanting”. Ms Nicol advised that she could. The purchaser then asked if she could “do 2”. Several phone calls

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty of life imprisonment.
2      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). Maximum penalty of life imprisonment.
3      Police v Nicol [2022] NZDC 8157.
4      The associates to whom Ms Nicol offered to supply methamphetamine are unknown, although their cellphone numbers formed part of the data handed over by Vodafone.

followed, and Ms Nicol offered to supply two grams of methamphetamine.

[5] On 26 June 2020, Ms Nicoll received a phone call from a fourth unknown associate and several text messages, which included them saying “yay birthday puffs haha” and asking her to “plz save 2”. Ms Nicol replied, “see you soon” and offered to supply two grams of methamphetamine. The next day that same associate sent a text asking “3?” Ms Nicol replied “yip”. The associated asked if it was “for a tun?” Ms Nicoll responded “sweet” and offered to supply three grams of methamphetamine for
$1,000. Several days later the same associate text Ms Nicol asking…

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 Nicol v Police

Details

AGLC: Nicol v Police [2022] NZHC 1771
Case: [2022] NZHC 1771
Decision Date: 22 July 2022

CaseChat Overview and Summary

Amy Nicol appealed against her sentence of two years and four months’ imprisonment, imposed by Judge D J McDonald, following a guilty plea to multiple charges of methamphetamine dealing and possession for the purpose of supply. The appeal focused on the starting point for her offending, the uplift for previous convictions, and the weight given to personal mitigating factors. The court allowed the appeal and commuted the sentence to seven months’ home detention, with a deduction of three months for time spent in custody.

The court found that the Judge had adopted an inappropriate starting point for the offending, which it considered should be lower due to the lesser role played by Ms Nicol in the offending. The Judge had concluded that Ms Nicol was a street level dealer with a profit motive, but the court found this conclusion was not supported by the evidence, which indicated that her offending was, at least in part, driven by addiction. The court also found that the uplift for previous convictions was not excessive, given the relevance of the prior convictions and the escalating seriousness of Ms Nicol’s offending over time. Lastly, the court found that insufficient weight had been given to personal mitigating factors, including the guilty plea, addiction-driven offending, and time spent on electronic monitoring bail. The court found that a full guilty plea discount of 25 per cent and a discount of five months for time spent on electronic monitoring bail were appropriate. The court concluded that the sentence of imprisonment should be commuted to one of home detention, given the rehabilitative needs of Ms Nicol, while still facilitating the deterrent and denunciative purposes of sentencing.

Orders