The Queen v Nicholas - [2009] NZCA 295

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA186/2009
[2009] NZCA 295
THE QUEEN
v
GARY IAN SHANE NICHOLAS
Hearing:6 July 2009

Court:Ellen France, Ronald Young and Miller JJ
Counsel:D N Bunce for Appellant

M J Inwood for Crown

Judgment:14 July 2009 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of nine years’ imprisonment is quashed and a sentence of eight years’ imprisonment substituted with respect to both charges.

____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]       Whether a three-year uplift from a starting sentence of eight years for the aggravating features of a sexual violation and rape resulted in a manifestly excessive sentence is the question in this appeal.
Facts
[2]       In the early hours of 1 June 2008 a young couple, she 16 years of age, he 17 years, were walking near Anzac Drive in Christchurch. The appellant approached the couple and threatened them. They walked off but he persisted, grabbing the female and forcing her into a garden area near the road. The young male, who was also threatened by the appellant, ran to the road to try to get help. The appellant then threatened to kill the female complainant unless she agreed to sex. He forcibly removed her jeans and underwear, performed oral sex on her and then raped her.
[3]       The appellant was caught shortly afterwards. He pleaded guilty one month before trial.
Sentencing
[4]       At sentencing Judge Noble agreed with counsel the initial starting point was eight years’ imprisonment (R v A [1994] 2 NZLR 129 (CA)) acknowledging the start sentence was before a guilty plea was entered. The Judge uplifted the starting sentence of eight years by three years identifying as aggravating features; the use of physical violence; the threat to kill; the fact there were two offences and victim impact.
[5]       As to the latter point the Judge said:
[5]       Having read the victim impact report unsurprisingly she is fearful, anxious (as is often the case), angry with herself, disgusted, sickened and concerned regarding her ongoing safety when on the street. So traumatised was she that she was off work for some three months. I am not sure when the most recent victim impact report was written. It is dated relatively recently and I will infer, in any event, that she will have ongoing emotional difficulties as a result of what you did to her, likely for a very long time.

Discussion
[6] No challenge is made to the Judge’s discount of two years as appropriately reflecting the late guilty plea.
[7] We accept there was some violence, beyond the violence inherent in a rape. Although no injury was caused to the complainant from this further violence, the threat to kill, the abduction albeit relatively brief, and the additional sexual offending were all aggravating features. The appellant was 28 years of age and considerably…

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 The Queen v Nicholas

Details

AGLC: The Queen v Nicholas [2009] NZCA 295
Case: [2009] NZCA 295
Decision Date: 14 July 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the sentence given to Gary Ian Shane Nicholas, who was convicted of sexual violation and rape. The appeal centred on the question of whether the three-year uplift from an initial eight-year imprisonment sentence for the aggravating features of these crimes was excessive. The Court considered whether the combination of aggravating factors, including the use of violence, the threat to kill, and the victim impact, justified the uplift.

The legal issue before the Court was whether the sentence imposed by Judge Noble was manifestly excessive. The Crown argued that the sentence was appropriate given the severity of the crimes, while the appellant contended that the uplift was excessive and should be reduced. The Court had to determine whether the uplift was within the range properly available to the Judge, taking into account the specific aggravating factors in the case and comparing them to other cases with similar circumstances.

The Court found that while there were indeed aggravating factors, the three-year uplift from the starting sentence of eight years was excessive. The Court compared the facts of the case to other cases with similar aggravating circumstances and found that a two-year uplift would have been more appropriate. The Court concluded that the sentence of nine years’ imprisonment was manifestly excessive and should be reduced by one year to reflect the appropriate uplift for the aggravating features. Therefore, the appeal was allowed, and the sentence was reduced to eight years’ imprisonment.

The final orders of the Court were that the sentence of nine years’ imprisonment was quashed and a sentence of eight years’ imprisonment was substituted with respect to both charges.

Orders