R v Nicol

[2014] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-002146 [2014] NZHC 2110

THE QUEEN

v

STEVEN ROBERT NICOL

Counsel:

R G Douch for Crown

M Bates for Prisoner

Sentence:

5 September 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Nicol, you appear for sentence in relation to the following charges: (1)    two charges of burglary;1

(2)       one charge of unlawfully taking a motor vehicle;2

(3)       unlawful possession of a pistol;3 and

(4)       attempted murder.4

[2]      You pleaded guilty to all charges other than the charge of attempted murder. A jury found you guilty of that charge.

1      Crimes Act 1961, s 231(1)(a).

2      Section 226(1)(a).

3      Arms Act 1983, s 45(1)(b).

4      Crimes Act 1961, s 173.

R v NICOL [2014] NZHC 2110 [5 September 2014]

[3]      In sentencing you I shall: (1)     set out the facts;

(2)       explain your previous convictions;

(3)       explain the starting point which I adopt;

(4)       set out the adjustments that need to be made to the starting point; (5) set out your end sentence; and

(6)       explain why I am imposing a minimum period of imprisonment.

Your offending

Attempted murder

[4]      On 17 April 2013 you went to an address in Hamilton where you met the victim, Mr Young. You invited Mr Young to go for a drive with you.  You drove him to a place near Raglan.  As you were backing the vehicle into a lay-by you asked Mr Young to check the side of the vehicle to make sure it was not beyond the edge of the lay-by.  When Mr Young finished checking the position of the vehicle, he turned around at which point you shot him in the side of the head with a sawn-off .22 rifle.

[5]      A struggle then ensued.  You left the scene.  Remarkably, Mr Young did not realise he had been shot.   He managed to drive back to Hamilton.   After he was admitted into hospital it became apparent that the .22 bullet had lodged in the front of his head but had not caused injury to his brain.  The bullet remains in Mr Young’s head today.

[6]      You claimed that in fact Mr Young had grabbed the rifle when your attention was focused elsewhere and that in the ensuing struggle he accidentally shot himself.

[7]      The fundamental problem with your theory was that the trajectory of the bullet meant that the gun needed to be pointing at an angle which would ensure the

bullet travelled through the side of Mr Young’s head towards the centre and front of his head. You described the position of the gun and angle of Mr Young’s head during what you said was a struggle in which Mr Young accidentally shot himself.   If Mr Young had shot himself the bullet would have had to have turned at an acute angle after leaving the gun in order to pass through Mr Young’s head in the way it did.  That was impossible and illustrates that your argument Mr Young accidentally shot himself was wrong.

Possession of the unlawful pistol

[8]      This charge relates to your possession of the sawn-off .22 rifle which was used when Mr Young was shot.

Burglary

[9]      On 9 April 2013 you went to a property at Maihiihi.  You broke into a garage and stole the vehicle that was used by you at the time Mr Young was shot.

[10]     On 18 and 19 April 2013 you broke into a workshop at a property in Ohaupo where you stole a wetsuit, a set of flippers, diving boots and a fishing rod and reel. The total value of the goods you took was approximately $1,300.  Later, you went to a property at Taupiri where you took from a vehicle, cash, an eftpos card, driver’s licence, a telephone and sun glasses worth approximately $250 in total.

Unlawfully taking a motor vehicle

[11]     On 19 April 2013 you stole a Mazda car worth approximately $3,000.  It was from that vehicle that you stole the goods worth approximately $250 I have just referred to.

Your previous convictions

[12]   You have 24 previous convictions for a range of offending that covers dishonesty, drugs, driving and violence offending.   You have previously been sentenced to prison for a period of one year and 11 months.   That sentence was

imposed in October 2011 for eight offences relating to dishonesty, driving and drug offending.

[13]     Notwithstanding your list of previous convictions I do not propose to treat your previous convictions as being factors that I should take into account when sentencing you in relation to the principal charge upon which I will sentence you today, namely the charge of attempted murder.   The reason I have reached this conclusion is because your previous convictions for crimes of violence were in 2002 and 2006 for which you were fined and sentenced to community work.  I regard that offending as being at the low end of the spectrum of violent offending and not relevant to the sentence I will impose on you today.

Starting point

[14]     The charge of attempted murder is the lead offence for sentencing purposes. In setting the appropriate starting point I have compared your case with others in which a gun has been used to attempt to murder a victim.

[15]     I have also derived assistance from R v Taueki,5 although I acknowledge that was not a case involving charges of attempted murder.

Comparable cases

[16]     With one exception, the cases  I have examined  have resulted in starting points for attempted murder that have ranged between 10 to 14 years.6

[17]     The exception to the cases which I have examined is R v Garlick.7   That case was very unusual and does not provide guidance to the way I should approach your

case.

5      R v Taueki [2005] 3 NZLR 372 (CA).

6      R v Jackson HC Wanganui CRI-2006-083-1891, 7 February 2007; Marsters v R [2011] NZCA

505; Rajgopaul v R [2011] NZCA 593; R v Vaioleti [2013] NZHC 3358; R v Skinner HC Auckland CRI-2008-092-14599, 30 August 2010; R v Gosset HC Christchurch CRI-2010-009-

1205, 4 March 2010 and R v O’Brien HC Christchurch T0307546/02, 17 October 2003.

7      R v Garlick HC Nelson CRI-2008-042-1111, 13 March 2009.

Taueki factors

[18]     The aggravating factors identified in Taueki that are relevant to your case are: (1)     The use of a weapon.

You chose to use a sawn-off .22 rifle to shoot Mr Young at point blank range.

(2)       The attack to the head.

You aimed the rifle at the side of Mr Young’s head.  The bullet lodged

in front of his brain in the centre of his forehead. (3)   Serious injuries.

You caused very serious injury to Mr Young.   He could have haemorrhaged  to  death  from  the  wound  you  inflicted.     It  is remarkable that he survived your attack.

(4)       Premeditation.

I do not know what motivated the attack or how long you had been planning it.   It is clear, however, that you picked up the gun when Mr Young was distracted and for reasons known only to you, aimed it at his head when he was looking to his left.   You then pulled the trigger.  There appears to have been no argument or actions that could possibly explain what motivated you to shoot Mr Young.  All I can conclude is that you did so deliberately and with some degree of forethought.

[19]     Using Taueki  as  a  guide,  and  comparing  your  case  to  those  that  I have examined, I adopt a starting point of 11 years’ imprisonment.

Adjustments

[20]     I do not propose to increase your sentence to reflect your earlier offending.

[21]     I will, however, increase the starting point to reflect the totality of  your offending for which you are to be sentenced today.  All of your offending took place over the course of a 10 day period and involved separate instances of criminal activity that needs to be recognised in the sentence which I impose upon you today. In my assessment, that is best achieved by increasing the starting point by a further six months’ imprisonment.  In my assessment, a total period of imprisonment of 11½

years is proportionate to the gravity of your overall offending.8

[22]     I have endeavoured to ascertain if there are any factors that would justify a reduction in the sentence of 11½ years’ imprisonment.  I can find nothing that would entitle me to reduce your sentence.

Minimum period of imprisonment

[23]     I accept that your offending is substantially driven by your methamphetamine addiction and that you are endeavouring to take some steps to address this major source of your offending.

[24]     I also accept that you are a person with some qualities as is evident from the letters of support which I have carefully read.

[25]     Notwithstanding your attempts to address the causes of your offending and your underlying good qualities, I do need to impose a minimum period of imprisonment in order to:

(1)hold you accountable for the harm you did to Mr Young and the community by your offending;9

(2)       denounce your conduct;10

8      Sentencing Act 2002, s 85(2).

9      Section 86(2)(a).

10     Section 86(2)(b).

(3)       deter you and others from committing the same or similar offences;11

and

(4)       protect the community from you.12

[26]     That minimum period of imprisonment shall be six years’ imprisonment.

Overall assessment

[27]     Before  reaching  my final  decision  on  your  sentence  I have  reflected  on whether or not the sentence which I am proposing to impose reflects the purposes and principles of the Sentencing Act 2002.

[28]     In my assessment, the purposes and principles of the Sentencing Act 2002 set out in ss 7 and 8 of that Act are achieved by the sentence I am about to impose.  In particular, it is the least restrictive outcome that is appropriate in the circumstances of your case.

Conclusion

[29]     Mr Nicol, please stand.

[30]     On  the  charge  of  attempted  murder  I  am  sentencing  you  to  11½  years’

imprisonment.

[31]     On all other charges I am sentencing you to two years’ imprisonment.

[32]     All sentences are concurrent.  This means that the maximum time you will serve  in  prison   is  11½   years,  with  the  minimum  period  being  six   years’ imprisonment.

[33]     Stand down.

11     Section 86(2)(c).

12     Section 86(2)(d).

D B Collins J

Solicitors:

Crown Solicitor, Hamilton