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…

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 Nicol

Details

AGLC: R v Nicol [2014] NZHC 2110
Case: [2014] NZHC 2110
Decision Date: 5 September 2014

CaseChat Overview and Summary

In the case of R v Nicol, the defendant was sentenced for multiple charges including attempted murder, burglary, unlawful taking of a motor vehicle, and unlawful possession of a pistol. Nicol pleaded guilty to all charges except attempted murder, for which he was found guilty by a jury. The court was tasked with determining an appropriate sentence for Nicol's crimes, taking into account the severity of the attempted murder, the totality of his offending, and his previous convictions. The starting point for sentencing was set at 11 years' imprisonment, reflecting the gravity of the attempted murder and the use of a weapon. The court adjusted the starting point upwards to account for the totality of Nicol's offending over a 10-day period. Ultimately, the court imposed a sentence of 11½ years' imprisonment for the charge of attempted murder and two years' imprisonment for the other charges, with all sentences running concurrently.

Collins J detailed the facts of the attempted murder, noting that Nicol shot the victim at point-blank range with a sawn-off.22 rifle, causing serious injury but remarkably allowing the victim to survive. The court rejected Nicol's claim that the shooting was accidental. The court also considered Nicol's history of previous convictions, primarily for dishonesty, drugs, driving, and violence, but found that only the recent offending was relevant for the current sentencing. A minimum period of six years' imprisonment was imposed to hold Nicol accountable, denounce his conduct, deter him and others, and protect the community, despite acknowledging his attempts to address his methamphetamine addiction and his underlying good qualities.

Orders