R v Nicholas

[2017] NZHC 3043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-6230 [2017] NZHC 3043

THE QUEEN

v

SEAN CLIFFORD NICHOLAS

Counsel:

E L Woolley for Crown

A Prasad and H Redwood for Prisoner

Sentenced:

08 December 2017

Charges:

Threatening harm to people or property
Breaching release conditions

Plea:

Guilty

SENTENCING NOTES OF BREWER J

Solicitors:

R v NICHOLAS [2017] NZHC 3043 [8 December 2017]

Meredith Connell (Auckland) for Crown

Public Defence Service (Auckland) for Prisoner

Introduction

[1]      Mr Nicholas, you have pleaded guilty to one charge of threatening to do harm to people or property,1  and one charge of breaching release conditions.2    The first charge carries a maximum penalty of seven years’ imprisonment,3 while the second carries a maximum penalty of one year’s imprisonment or a fine not exceeding

$2,000.4

[2]      My task today is to sentence you for that offending.  I know that you are very familiar with the sentencing process and I think you realise, as do I, that I have very limited options for dealing with you.  What I am going to do now is go through the facts of the offending, establish a starting point, see whether the starting point should be adjusted up or down for your personal factors, and then reach an end sentence.

Facts

[3]      On 13 June 2017, you went to Bunnings Warehouse in New Lynn. You bought various flammable chemicals.  You then returned to your accommodation and spent eight hours constructing a device.

[4]      Six days later, in the afternoon of 19 June 2017, you went to 666 Great South Road in Ellerslie.  This address is a large business development, with multiple high- rise buildings.

[5]      You entered one of those high-rise buildings.  The particular building has five levels in which 14 businesses have their offices. At least 100 people were working in

the building at the time.

1      Crimes Act 1961, s 307A(1)(a).

2      Sentencing Act 2002, s 96(1).

3      Section 307A(1).

4      Section 96(1).

[6]      The businesses share a reception area.   You went there, got out of your wheelchair and sat on a sofa.  You had brought a suitcase with you.  You placed that at your feet.

[7]      You then asked to speak to someone from Consolidation Chemicals Ltd, which is one of the businesses in that building.  You said you had a bomb in your suitcase and you would blow yourself up and all the buildings in the area. You added that the bomb was set to a timer which could not be altered.

[8]      The building was  evacuated and  the Police were called.   Three  workers remained with you to try to appease you. Just under an hour after you had entered the building, the Police arrived and came to arrest you.  As you saw the Police coming towards you, you set light to a wick protruding from the side of the suitcase using a cigarette lighter you had with you.  The wick started burning.  But it stopped when it reached the side of the suitcase. You were then arrested.  By way of explanation, you said that you had prepared and placed chemicals in the suitcase with the intention of blowing both yourself and the building up.

[9]      A Police bomb expert formed the view that the fuse in the suitcase would not have achieved your intended purpose, but, if introduced to a significant heat source, the contents of the suitcase had the potential to burn and emit toxic fumes. I note that nobody was injured during this incident.

[10]     I also note that this offending facilitated a breach of your special conditions for release from prison.  I gather that you have a history of damaging accommodation when you are released from prison and so there was a condition in this case that you treat any property appropriately and abide by the rules of the accommodation provider. In fact, in putting together your device, you caused so much damage to your rented room that a Biohazard company needed to be contracted to clean it.   Community Corrections is seeking reparation for the invoice it received from the Biohazard company, namely $6,627.35.  The overall cost to Corrections of your breach of this condition, including compensating the motel for loss of business, amounts to approximately $16,000.

Starting point

[11]     Mr Nicholas, the law says that I should first set a starting point for your sentence to take account of the facts of your offending, and then adjust it up or down taking into account your personal circumstances.

[12]     Ms Woolley for the Crown submits I should adopt an overall starting point for your offending of between 21 and 27 months’ imprisonment.  Ms Prasad submits that a starting point in the vicinity of 15 months’ imprisonment is appropriate.

[13]     The charges are connected.  You breached your special conditions for release by attempting to build a bomb to facilitate your main offending. Concurrent sentences of imprisonment are appropriate.5

[14]     The threatening to do harm to people or property charge is more serious and so I will begin by assessing a starting point for that charge.  I will then impose an uplift for the charge of breaching release conditions to reach an overall starting point.

Threating to do harm to people or property

[15]     Ms Woolley submits that a starting point for this charge in the range of 15 to

18 months’ imprisonment is appropriate.

[16]     There is no general tariff case I can look at to gauge where your offending sits. I have looked at a number of previous cases.  I will not go through them with you but I will list them in the written record of these sentencing notes.6

[17]     I have identified the following aggravating features of your offending:

(a)       Actual or threatened violence7 – you constructed what you intended to be  an  explosive  device  using  various  flammable  chemicals.  You

threatened to blow yourself and everyone in the building up. Although

5      Sentencing Act, s 84(2).

6      R v Theodore CA95/92, 12 June 1992; Bryan & Rudduck v Police HC Auckland CRI-2009-404-

45, 3 April 2009.

7      Sentencing Act, s 9(1)(a).

the device was not capable of achieving that, the threat was taken seriously, at least initially.  No-one knew the capabilities of the device. When the Police arrived, and I think this is significant, you set light to the wick, intending to trigger the device.

(b)Extent of loss, damage or harm you caused8 – I accept that the level of harm caused was low in the sense that no-one was injured.  There was no  damage  to  the building or  any property.    However,  there was significant disruption to the lives of the 100 or so people working in the building that day.  They had to be evacuated. The Police had to come. The Army bomb disposal team had to come.

(c)      Premeditation9 – the level of premeditation was high. You bought these chemicals six days before the offending.  You spent about eight hours constructing the device.  You clearly intended to use it in this sort of offending which you then carried out.

[18]     The high point in New Zealand law at the moment for offending of this general type is a case called R v Coombs.10   The Court of Appeal upheld a starting point of three years’ imprisonment in that case.  I regard the offending in Coombs as being far greater than yours because a number of dry ice bombs were exploded and a bystander was injured.   That means I have to come back significantly from the three years’ starting point that was upheld in that case.

[19]     Looking at the other cases, which I will list,11 some of which were less serious than yours and some of which were, again, more serious, I adopt a starting point of

14 months’ imprisonment.

8      Sentencing Act, s 9(1)(d).

9      Sentencing Act, s 9(1)(i).

10     R v Coombs [2008] NZCA 329.

11     R v Mangu DC Whangarei CRI-2008-088-5325, 28 April 2009; R v Bron HC Gisborne CRI-2006-

016-1785, 1 December 2006; Taylor v R [2017] NZHC 1356.

Breach of release conditions

[20]     Ms Prasad emphasises the lack of significant aggravating features in this offending.  She submits that a small uplift of two to three months’ imprisonment is appropriate.  On the other hand, Ms Woolley submits that I should adopt a starting point of six to nine months’ imprisonment.

[21]     Again, there is no tariff decision.  Ms Woolley has referred me to three cases, which I will list.12

[22]     In my view, the gravity of your offending lies, firstly, in the fact that you knew what the special conditions of your release were and, secondly, the damage that you did in your deliberate breach of the conditions.   The cost to the Department of Corrections, as I have said, was approximately $16,000.  Therefore, I consider that a starting point of four months’ imprisonment is appropriate.

Overall starting point

[23]     Because I am going to impose concurrent sentences of imprisonment, I have to decide on a totality basis how I combine those two starting points.

[24]     I am going to uplift the starting point of 14 months’ imprisonment for the first charge by two months’ imprisonment to reflect the breach of release conditions charge. This results in an overall starting point of 16 months’ imprisonment.

Personal factors

[25]     Mr Nicholas, I now have to look at you and decide whether the starting point

should be adjusted up or down.

[26]     The first matter I have to look at is your previous convictions.  It has been submitted that I should increase the starting point to take account of your criminal

record and because you committed these offences while you were still subject to an

12     King v Department of Corrections [2013] NZHC 3378; Jenkins v Department of Corrections

[2014] NZHC 2895; Ngamotu v Department of Corrections [2015] NZHC 1814.

earlier sentence.13  Ms Woolley points out that you have four previous convictions for breach of release conditions.   She submits I should adopt an uplift of one or two months’ imprisonment.

[27]     I think I should go through your more recent convictions because it is the overall effect of them that I have to take into account:

•On 17 June 2013, you went into a bank at the same address as the offending on this occasion.  You had with you an air pistol and you made threats.  You were charged with committing burglary with a weapon and on 22 April 2014 you were sentenced to two years’ imprisonment.

•On 25 November 2014, you were convicted of unlawfully possessing a firearm and sentenced to four months’ imprisonment.

•    On 2 July 2015, you were convicted of possessing a knife in a public place.

That was the occasion where you went to the New Zealand Stock Exchange with the knife and made threats to blow up the building.  You were sentenced to two months’ imprisonment.

•On 29 January 2016 you were again convicted of unlawfully possessing a firearm and sentenced to one year and 10 months’ imprisonment

[28]     Then we have the breaches of Court release conditions.  You were convicted on 8 July 2015 and sentenced to two months’ imprisonment. You were convicted again on 20 March 2017 and you were convicted and discharged. But on another charge on the same date you were sentenced to eight months’ imprisonment.  And, on 8 June

2017, you were again convicted of breach of release conditions and sentenced to three months’ imprisonment.

[29]     The reason why previous convictions are regarded as warranting an uplift in a sentence is because they indicate that the message is not getting through and that a person is continuing to present a danger to the public.

[30]     If the charge that you are facing were more serious than the charge actually is, then I would use that list of previous convictions to impose a very significant uplift. But I have to have regard to the sentence to which you are going to be subject and I have to achieve a degree of proportion, so I am going to uplift the starting point by three  months  to  reflect  those  convictions,  making  an  overall  starting  point  of

19 months’ imprisonment.

[31]     I now turn to your health conditions.  Ms Prasad submits you should receive a discount of 10 per cent to reflect your health conditions. You suffer from a number of health conditions but principally fibromyalgia which means that you suffer from continual pain and are confined to a wheelchair.

[32]     There is some suggestion that being in a wheelchair is also a reaction to your various mental health problems which are summarised under the term “personality disorder”.  You have paranoid, antisocial and borderline traits.  The point is that your mental health is not so serious that the mental health authorities can intervene without your consent, but you are, as a result of the personality disorders, assessed as a very high and continuing risk to the public.

[33]     I acknowledge Ms Prasad’s submission to the effect that a lot of your offending is your way of attracting attention because you want to be treated but you disagree with the quality or extent of the treatment that has been offered.  I cannot do anything about that myself.  Ultimately you are going to have to make your own decisions.

[34]     As it is, I am not going to give a discount for your health problems because, as I said to Ms Prasad, the very health problems you have are the ones that make you an ongoing danger to the public.  But one discount I can and must give you is for your pleas of guilty. The Supreme Court has made it clear that that the maximum discount for a plea of guilty is 25 per cent,14 and there is no contest here that you entered your pleas at the first reasonable opportunity and so you are entitled to that discount. I will round it up to five months.  I am not going to give an additional discount for remorse because I see no tangible evidence of genuine remorse.

[35]     Neither am I going to make a reparation order, Mr Nicholas. It is accepted that you have no means to meet a reparation order and it is unlikely that you ever will, so there is no point making a reparation order.

Sentence

[36]     Mr Nicholas, on the charge of threatening to do harm to people or property, I sentence you to 14 months’ imprisonment.   On the charge of breaching release conditions, I sentence you to four months’ imprisonment, with those two sentences to be served concurrently so that the overall sentence is 14 months’ imprisonment.

[37]     Ms Prasad, in her written submissions, asked me to give you leave to apply for home detention if a suitable address is identified in the future.  I cannot do that, not given your record and your ongoing danger to the public. That application is denied.

[38]     You may stand down.

Brewer J