R v Nicholson - [2014] NZHC 334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-005045 [2014] NZHC 334

THE QUEEN

v

ANDREW PARRY NICHOLSON JOHN GRANT CUTHERS

Hearing: 28 February 2014

Appearances: K Raftery and A Pollett for Crown
M Dyhrberg and M Hislop for Mr Nicholson
L Cordwell and H Leabourn for Mr Cuthers

Sentence: 28 February 2014

SENTENCING REMARKS OF LANG J

R v NICHOLSON & CUTHERS [2014] NZHC 334 [28 February 2014]

[1] Mr Nicholson and Mr Cuthers, you appear for sentence today having been found guilty by a jury on a charge of murder.1 As you know, the only realistic sentence that can be imposed in respect of that charge today is one of life imprisonment. The real issue in relation to that charge, as all counsel have emphasised, is the extent to which the Court should order that you serve a minimum term of imprisonment before being eligible to apply for parole

[2] You also pleaded guilty, Mr Nicholson, at the beginning of your trial to charges of offering to supply methamphetamine and theft of a motor vehicle. Those charges carry maximum sentences of life imprisonment and seven years imprisonment respectively.

[3] Mr Cuthers, you also pleaded guilty to a charge of offering to supply methamphetamine. That charge carries a sentence of life imprisonment. You also pleaded guilty to unlawfully getting into a motor vehicle. That carries a maximum sentence of two years imprisonment.

[4] You have also both pleaded guilty in the District Court to a number of charges. in your case, Mr Nicholson, you pleaded guilty to charges of conspiracy to supply methamphetamine and supplying methamphetamine. They carry maximum sentences of 14 years imprisonment and life imprisonment respectively.

[5] Mr Cuthers, you have pleaded guilty in the District Court to charges of conspiring to supply methamphetamine, offering to supply methamphetamine and supplying methamphetamine. As in the case of Mr Nicholson, the conspiracy charge carries a maximum sentence of 14 years imprisonment, whilst the remaining charges carry maximum sentences of life imprisonment.

[6] The District Court remanded you for sentence in this Court so that all charges could be dealt with together. All counsel acknowledge, of course, that it is not possible to impose a cumulative sentence for the drug offending on the sentence to be imposed on the charge of murder. As a result, the sentences in relation to the drug
offending will be concurrent sentences.

1 The Crown proceeded at trial under ss 167(b) and 168 of the Crimes Act 1961.

The facts

[7] The factual situation in relation to the murder charge and the other two charges to which you pleaded guilty at the beginning of your trial were fully canvassed during your trial. During this period you were both involved in reasonably extensive drug dealing at a retail level. This is how the murder charge in the present case came about.

[8] Late on the morning of 26 July 2011, you, Mr Cuthers, sent out a text to an associate of yours indicating that you…

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 Nicholson

Details

AGLC: R v Nicholson [2014] NZHC 334
Case: [2014] NZHC 334
Decision Date: 28 February 2014

CaseChat Overview and Summary

Nicholson and Cuthers were found guilty of the murder of Lee McMurdo. The only sentence that could be imposed on this charge was life imprisonment, with the real issue being the length of the minimum term before parole eligibility. The defendants were also guilty of various drug related charges and theft. The court began by sentencing the defendants for their drug related charges and theft, imposing concurrent sentences to avoid a cumulative effect with the murder sentence. For the murder charge, the court considered whether s 104 of the Sentencing Act 2002 applied, which required a minimum term of imprisonment of not less than 17 years if certain criteria were met. The court found that these criteria were met, and imposed the requisite minimum term on Nicholson. However, in Cuthers' case, the court found that a leap from 13 to 17 years imprisonment would be manifestly unjust and imposed a minimum term of 13 years. In all, Nicholson was sentenced to life imprisonment with a minimum term of 17 years for murder, and various concurrent sentences for his other charges. Cuthers was sentenced to life imprisonment with a minimum term of 13 years for murder, and various concurrent sentences for his other charges.

Orders