R v Nicholls - [2012] NZHC 1334

PUBLIC VERSION

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

THE MATTERS REFERRED TO IN PARAGRAPHS [9] AND [11] ARE UNDERSTOOD TO BE SUBJECT TO EXISTING SUPPRESSION ORDERS. PUBLICATION OF THESE MATTERS IS PROHIBITED PENDING CLARIFICATION OF THE EXISTENCE OF SUCH ORDERS.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2011-042-3554 [2012] NZHC 1334

THE QUEEN

v

SAMUEL MARK NICHOLLS

Hearing: 13 June 2012

Counsel: J M Webber for the Crown
A J Bamford for Samuel Nicholls

Sentence: 13 June 2012

SENTENCING REMARKS OF MALLON J

[1] Mr Nicholls, you appear for sentencing today, having pleaded guilty to a charge of blackmail.1 The maximum penalty for that offence is 14 years’
imprisonment.

1 Section 237 of the Crimes Act 1961.

R v NICHOLLS HC NEL CRI 2011-042-3554 [13 June 2012]

[2] The circumstances giving rise to the charge were as follows. You and the complainant both had profiles on “Bebo”. Bebo is an internet social networking site. A user can send a “friend” request to another user. If the person receiving the request accepts the request, the users can then chat online and exchange personal messages.

[3] Sometime in 2010 you and the complainant became “friends” on the site and exchanged cell phone numbers. After that you exchanged text messages. In the course of these exchanges you asked the complainant to send to you naked pictures of herself. She sent two such pictures.

[4] Most of your communications were via the internet or through text messages. However, you did meet on one occasion in May 2011.

[5] On the morning of 9 August 2011, over a period between 8.30am and just after 10am, the complainant received over 20 text messages from you. The messages began with you wanting the complainant to come to your place. When the complainant replied saying that she did not want to and was busy, you replied with “shall I send those photos of you naked then”. The complainant told you to delete them. You said that you would delete them if the complainant had sex with you. The complainant told you that she had a boyfriend and that she was not going to go to the house and have sex with you. You sent a further message saying that if she did not then her photos would be “everywhere”. You sent a further text saying that you would send the photos in two hours unless she got someone else to go to your place and have sex with you. The complainant replied that she did not know anyone and asked “Why me. I have no money”. You then sent a text saying “Then you better get here then”. You sent a further text asking the complainant what she was going to do.

[6] After receiving this last text the complainant reported the matter to the police. The police spoke to you. You offered no explanation at the time.

[7] There is a victim impact…

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 Nicholls

Details

AGLC: R v Nicholls [2012] NZHC 1334
Case: [2012] NZHC 1334
Decision Date: 13 June 2012

CaseChat Overview and Summary

The case of R v Nicholls involved the defendant, Samuel Mark Nicholls, who was sentenced by Mallon J in the High Court of New Zealand, Nelson Registry. The defendant pleaded guilty to a charge of blackmail, which carries a maximum penalty of 14 years' imprisonment under Section 237 of the Crimes Act 1961. The offence arose from a series of text messages sent by the defendant to the complainant, who had previously sent him naked photographs of herself. The defendant threatened to distribute these photographs unless the complainant complied with his demands, leading to her reporting the matter to the police.

The legal issues before the court included determining the appropriate sentence for the offence of blackmail, considering the defendant's personal circumstances and the impact on the complainant. The court also had to weigh the aggravating factor of the defendant's previous offending against mitigating factors such as his guilty plea and remorse. Additionally, the court considered the need for rehabilitation due to the defendant's inappropriate sexual behaviour, which raised concerns about his potential to reoffend.

Mallon J sentenced the defendant to 12 months' supervision with the special condition that he undergo an assessment by a Department psychologist and attend any recommended treatment. The court also ordered the defendant to complete 200 hours of community work. The sentencing decision was influenced by the defendant's involvement in pro-social activities, his lack of complex needs, and the pre-sentence report's emphasis on the importance of maintaining his current lifestyle balance to reduce the risk of reoffending.

The final orders of the court were that Samuel Mark Nicholls be subject to 12 months' supervision with the specified conditions, and that he complete 200 hours of community work. This sentence aimed to address the defendant's inappropriate sexual behaviour, provide an opportunity for rehabilitation, and protect the community while considering the defendant's personal circumstances and the nature of the offence.

Orders