Nicol v Police - [2013] NZHC 3326

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-31 [2013] NZHC 3326

BETWEEN TALOR NICOL Appellant

ANDPOLICE Respondent

Hearing: 19 November and 11 December 2013

Counsel: C L Linton for Appellant
B Vanderkolk (11 December) with D Flinn (19 November) for
Respondent

Judgment: 11 December 2013

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] On Christmas Eve 2012 the appellant and four friends broke into the elderly victim’s house at Feilding. From that house they stole the victim’s antique arms collection. It was valued at over $13,000. Only two of 16 items stolen were recovered. A week later the appellant was found in possession of four small snap lock bags with 0.64 grams of methamphetamine. A month later, the appellant and two associates visited a number of properties in another part of Feilding. From two of them they stole various consumer goods. Two of the victims of that offending were also elderly.

[2] The result of all these incidents was that the appellant faced three charges of burglary, one of possession of a Class A controlled drug, two of unlawfully being in
an enclosed yard or area and one of charge of theft.

TALOR NICOL v POLICE [2013] NZHC 3326 [11 December 2013]

[3] In April 2013 the appellant pleaded guilty to these charges. At that stage he had only one prior conviction. It was for indecent assault of a female aged over 16 years. That offence was committed two years previously.

Sentence

[4] On 17 September 2013 a District Court Judge sentenced the appellant. He treated the Christmas Eve firearms burglary as the lead charge. He considered that the appellant fell between a “first time burglar” and a “spree burglar”. The Judge took a starting point of two years for the firearms burglary and uplifted it to six months for the other convictions. The Judge then gave a seven months discount for the guilty pleas to reach one year and 11 months’ imprisonment. The Judge then allowed a further discount of three months for other mitigating factors, (particularly the relative youth of the appellant) leading to a sentence of one year and eight months’ imprisonment.

[5] The Judge declined to order home detention. In part the Judge was influenced by a pre-sentence report. It is accepted that that report contains a number of serious errors. The Judge considered that home detention would insufficiently denounce the serious nature of the repeated offending in this case, and would insufficiently hold the appellant responsible for his involvement in the offending. The Judge also ordered the appellant to pay reparation of $1,998 for the firearms, and $3,713 for the burgled items.

[6] From that sentence the appellant appeals, on the basis that it is manifestly excessive.

Appeal

[7] The essential grounds for the appeal are, first, the errors in the pre-sentence report, in particular its conclusion that the appellant had failed to comply with previous community based sentences. Secondly, that the Judge relied too heavily on denunciation and…

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: [2013] NZHC 3326
Decision Date: 11 December 2013

CaseChat Overview and Summary

In the case of Nicol v Police, the appellant, Talor Nicol, appealed against the sentence imposed by a District Court Judge, arguing that it was manifestly excessive. The appellant had pleaded guilty to multiple charges including burglary, possession of a Class A controlled drug, unlawfully being in an enclosed yard or area, and theft. The appellant's criminal history included an offence of indecent assault committed two years prior. The District Court Judge sentenced the appellant to one year and eight months’ imprisonment, taking into account the appellant's status between a "first time burglar" and a "spree burglar" and discounting the sentence for the appellant's guilty pleas and other mitigating factors. The appellant appealed on the basis that the sentence was manifestly excessive, citing errors in the pre-sentence report, overemphasis on denunciation and deterrence, and inconsistency with the sentencing of co-offenders.

The High Court found that the appeal should be allowed and that a home detention-based sentence should be imposed instead. The Court noted that there was an agreement between the parties that the sentence of 20 months’ imprisonment should be remitted, and the appellant should serve eight months’ home detention with effect from the date of his release. The Court also ordered the appellant to complete 400 hours of community work, focusing on assisting elderly persons in Feilding, and imposed special conditions for the home detention sentence, including restrictions on association, consumption and possession of alcohol and non-prescription drugs, and requirements for alcohol and drug testing and containment of pets. The Court reminded the appellant that non-compliance with these conditions or any further offending during the period of home detention would likely result in a return to prison.

The appeal was allowed, and the sentence was varied as provided. The Court's decision highlights the importance of considering the least restrictive available outcome in sentencing and the need for consistency in sentencing co-offenders. It also demonstrates the Court's willingness to work with the parties to find a suitable alternative to imprisonment where appropriate.

Orders