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 larger than the young man.  The victim was 16 years of age and vulnerable because of her age.  It was plainly a terrifying and violent incident for her and understandably she has suffered significantly from the attack.  The effect on her was an aggravating feature.

[8]       We are satisfied, however, that the uplift of three years from the starting sentence of eight years’ imprisonment was outside the range properly available to the Judge.  While comparisons of facts of other cases are difficult the examples provided by the parties to this appeal illustrate the uplift was beyond the range.

[9]       In R v A, the offending was premeditated, the appellant threatened to kill the complainant, and he was violent towards her including holding a knife to her throat and punching her.  He assaulted a child who was trying to ring the police and who was also present during the rape.  Victim impact for both the victim and the child was described as high.  These aggravating features this Court concluded justified the three-year uplift and a final sentence of nine years’ imprisonment after a guilty plea was taken into account.

[10]     An increase of two years’ imprisonment was considered appropriate in this Court following a Solicitor‑General appeal in R v Takiari [2007] NZCA 273 for predatory behaviour, abduction, two incidents of oral sex and the fact the complainant was especially vulnerable given she was visually impaired. In R v Anderson CA199/05 2 November 2005 the aggravating features included premeditation and stalking, youth and vulnerability of the victim (she was 18 years of age and intoxicated), some violence accompanying the rape and sexual assaults in addition to the rape.  This case also involved dragging a young woman from the street and sexually assaulting her nearby.  This Court described a two-year uplift for these aggravating features as stern.  A two-year uplift resulting in a ten year sentence of imprisonment for rape was described by this Court in R v Seller [2007] NZCA 422 as stern. The aggravating features included a vulnerable victim who was drunk and distraught and 18 years of age, a breach of trust, premeditation, violence and severe victim impact.

[11]     These cases illustrate that similar aggravating circumstances to the current case albeit often in different combinations have typically resulted in two-year uplifts from the appropriate starting sentence.  Uplifts of three years have generally been kept for severe aggravating circumstances especially where there has been significant additional violence in combination with other seriously aggravating features.

[12]     We are satisfied that a two-year uplift in this case would have properly met all the combination of aggravating circumstances.  The two-year deduction for the guilty plea was appropriate and was not challenged by either Crown or appellant.

[13]     We are satisfied, therefore, that the sentence of nine years’ imprisonment was manifestly excessive and should be reduced by one year to reflect the appropriate uplift for aggravating features.

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

Solicitors:

Crown Law Office, Wellington