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…

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 Nicholas

Details

AGLC: R v Nicholas [2017] NZHC 3043
Case: [2017] NZHC 3043
Decision Date: 08 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Sean Clifford Nicholas, pleaded guilty to charges of threatening to do harm to people or property, and breaching release conditions. The court was required to decide on an appropriate sentence, taking into account the aggravating and mitigating factors. The court established a starting point for the offending, adjusting it up or down based on personal factors. The court considered the defendant's criminal history, health conditions, and pleas of guilty. Ultimately, the court decided to uplift the starting point by three months to reflect the defendant's previous convictions, resulting in an overall starting point of 19 months' imprisonment. However, the court granted a discount of five months for the defendant's pleas of guilty, resulting in an overall sentence of 14 months' imprisonment, to be served concurrently.

The court also considered the defendant's health conditions, which include fibromyalgia and various mental health problems. The court acknowledged that the defendant's health problems may contribute to his offending behaviour, but ultimately decided not to give a discount for these conditions as they also make him a danger to the public. The court denied the defendant's request for leave to apply for home detention in the future, given his criminal history and ongoing danger to the public. The court did not make a reparation order as the defendant has no means to meet it. The final orders of the court were for the defendant to serve 14 months' imprisonment for the charge of threatening to do harm to people or property, and four months' imprisonment for the charge of breaching release conditions, with both sentences to be served concurrently.

Orders