R v Nichol - [2018] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2015-004-13170

[2018] NZHC 2739

THE QUEEN

v

KEVIN NICHOL

Hearing: 23 October 2018

Appearances:

MB Smith for Crown G Anson for Defendant

Sentence:

23 October 2018

SENTENCING NOTES OF TOOGOOD J

R v NICHOL [2018] NZHC 2739 [23 October 2018]

Introduction

[1] Kevin James Nichol, you appear for sentence on seven charges of indecent assault on a child,1 having pleaded guilty following your acceptance of a sentence indication given to you on 6 July 2018. On the basis that the Crown does not offer any evidence on charge 5 in the Charge List, I discharge you on that charge under s 147 of the Criminal Procedure Act 2011.

The background facts

[2] The charges on which you are to be sentenced spread over a period of five- and-a-half months in 2012, and involve five separate occasions. The three complainants are all related and they were aged nine or ten years old at the time of the offending. The circumstances were that you groomed the three young boys by offering them sweets, money and food. There is also a suggestion that alcohol may have been involved and that one boy, at least, was given a personal Play Station console. On more than one occasion through the latter part of 2012, you accepted responsibility for looking after the complainants overnight after arrangements were made with their caregiver.

[3] On the first incident of offending, you masturbated the younger of the complainants by handling his penis. You tore off the boy’s t-shirt, pinned him down and simulated intercourse by rubbing your penis against his chest and stomach. You also kissed the boy on the lips and put your tongue in his mouth. The boy described the incident as your “treating him like his girlfriend”. That offending gives rise to three of the seven charges.

[4] The second incident involved you taking down the pants of a sleeping boy, and attempting anal intercourse. Contact between the boy’s anus and your penis was made but no penetration occurred. The third incident involved touching the complainant’s buttocks and crotch over the top of pyjamas that he was wearing.

1 Crimes Act 1961: s 132(3): maximum penalty of ten years’ imprisonment.

[5] The fourth incident again involved you pulling down the pants of a sleeping boy and penetrating the boy’s buttocks with your penis close to the anal entry. Later that night the boy suffered some discomfort which lasted several days. The fifth incident involved you pinning the complainant against the side of a couch and wall with some force, and there was again penile and anal contact although without penetration.

The impact on the victims

[6] Your victims are now 13 to 15 years old. Needless to say, they would like to put you and your offending behind them; but long-term emotional disability to the victims is inherent in offending of this kind,2 and this case is no different.…

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 R v Nichol

Details

AGLC: R v Nichol [2018] NZHC 2739
Case: [2018] NZHC 2739
Decision Date: 23 October 2018

CaseChat Overview and Summary

Kevin James Nichol was sentenced for seven charges of indecent assault on a child. The charges stemmed from incidents that occurred over five and a half months in 2012 involving three boys aged nine or ten. The court was required to determine the appropriate sentence considering the aggravating and mitigating factors, as well as the purposes and principles of sentencing. The judge considered the gravity of the offences, the vulnerability of the victims, the use of force, and the significant degree of premeditation and grooming. The defendant's criminal history, which included previous convictions for sexual offences, was also taken into account. The court decided against imposing preventive detention, believing that a lengthy finite sentence would be more appropriate to protect the community, especially if accompanied by an extended supervision order. The defendant was sentenced to ten years' imprisonment, to be served cumulatively with his current sentence, and a minimum period of imprisonment of five years. Additionally, the defendant received a three strikes warning, which means that any future convictions for serious violent offences will result in imprisonment without parole or early release.

The court's decision in this case highlights the importance of considering the gravity of the offences, the impact on the victims, and the defendant's criminal history when determining an appropriate sentence. The judge also emphasised the need for consistency in sentencing and the importance of protecting the community from high-risk offenders. The decision further demonstrates the court's commitment to ensuring that offenders are held accountable for their actions and that victims receive the necessary support and protection.

Orders