ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2018-404-421
[2019] NZHC 493	

BETWEEN	DAVID NICHOLSON
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	11 March 2019	
Counsel:	R Mansfield for Appellant F Culliney for Respondent	
Judgment:	20 March 2019	

JUDGMENT OF WHATA J

This judgment was delivered by me on 20 March 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:	Meredith Connell, Auckland

NICHOLSON v POLICE [2019] NZHC 493 [20 March 2019]

[1]	Mr Nicholson pleaded guilty to three charges of indecently assaulting a boy between 12 and 16 years.  This offending occurred between 1 September 1997 and   4 December 1997. He was sentenced to two years’ and four months’ imprisonment, comprising a start point of three years 10 months, a discount of 25 per cent for personal mitigating factors and a 20 per cent discount for guilty plea.1 This was his third sentence for offending of this kind, alongside a sentence of three years’ imprisonment in 2002 for an attempted sexual violation.

[2]	The central issues raised by this appeal are:2

(a)	Whether  the  Judge  should  have  taken   a   totality   approach   to Mr Nicholson’s offending for fixing sentence; and

(b)	If so, was the sentence imposed manifestly excessive.

Facts

[3]	The complainant, B, was 15 and a ward of the state at the time of the offending. Mr Nicholson was 44. Mr Nicholson groomed B with a dinner, clothes, and a trip to the casino. This lead to Mr Nicholson and B watching pornography and masturbating together at Mr Nicholson’s home. On another occasion, again at Mr Nicholson’s home, B was asked to engage in sexual intercourse, which he initially declined.     Mr Nicholson persisted, and made an unsuccessful attempt at anal intercourse. He then suggested B consume amyl nitrate, which he did. B recalls feeling “wasted”. Penetrative sex followed. B and the complainant continued to regularly meet over the following months. During these times they would engage in sexual acts, including penetrative anal sex as well as oral sex. This continued until B left state care when he turned 16.

Other offending

[4]	Mr Nicholson has convictions for similar offending including:

1	R v Nicholson [2018] NZDC 21463.
2	Mr Mansfield, for the appellant, did not pursue an independent challenge to the starting point. He did, however, maintain for the totality assessment that a starting point of three years 10 months was too high and that the Judge exaggerated the consequences for the victim.

(a)	Two indecent acts with a boy aged 12-16 in the period 8 June 1988 and 17 June 1988. He was sentenced on 18 August 1988 to 10 months’ imprisonment.

(b)	An indecent assault on a boy aged 12-16 and offensive use of a telephone in the period 29 October and 4 November 1995. He was sentenced to one year six months’ imprisonment in 1995.

[5]	Mr Nicholson also has convictions for offensive (grooming-type) behaviour on 31 December 1997, 8 and 14 February 1998 and an attempt to commit sexual violation on 27 August 1999. He received a fine for the former and a three-year prison sentence for the violation (comprised of a four-year starting point and 12-month reduction for personal mitigating circumstances).

Rehabilitation and restorative justice

[6]	Mr Nicholson received rehabilitative treatment programmes while serving the sentences for the other offending. He also participated in ongoing treatment sessions and professional rehabilitation with Dr Barry Kirkler in August last year. The risk picture is not entirely favourable. Dr Kirkler concluded:

It seems that Mr Nicholson has over relied on external contingencies to avoid reoffending such as fear of consequence, rather than fully addressing his internal drives and needs. His post treatment relapse treatment plan included not being involved in activities that involved young people, not becoming involved with a woman who had teenage children, not using pornography, building adult relationships and appropriately managing his mood and substance use. He has not been able to adhere to about half of these things. Further he has not been applying sexual reconditioning practices. Overall, it is assessed that for Mr Nicholson’s risk of reoffending to be reduced to low he both needs to re-engage in therapy and better use his support persons.

[7]	Nevertheless, Mr Nicholson has taken full ownership of his offending and propensity to offend. The record and the outcome of a restorative justice process with B reflects this. It is unnecessary to repeat the detail of what was said by Mr Nicholson or B, but it is evident Mr Nicholson acknowledged the harm caused by him and meaningfully sought to provide some redress for it. He offered to write a letter to B’s father acknowledging it, offered to participate in an inquiry into state care, and made

an offer of reparation of $5000, which was accepted. B’s statement at the end of the conference exemplifies the positive outcome of the restorative justice process:

… the amount of work that has been done here today on my journey has been phenomenal because of that and now I see no threats to that boy anymore. Even you, then, isn’t a threat to that boy anymore because he’s got me looking out for him. And you aren’t whatever I had in my head, you know, you’ve shown yourself to be something that isn’t actually for that boy to fear. Again, this isn’t a process of minimising your behaviour, but I’m very encouraged by what I see in front of me ….

The sentence

[8]	Judge Ronayne carefully reviewed the facts of the present offending and the other offending. He said that the 1988 offending would have warranted a significant uplift had Mr Nicholson been sentenced for the present offending in 1997.3 The 1994 offending would also have been factored into the sentence. He also considered that had the 1997 offending been known at the time of the 2002 sentencing on the attempted sexual violation, it would have led to an uplift, but would not “have added a lot to the quantum of any uplift” for the 1994 and 1988 offending.4

[9]	The Judge referred to the PAC report, which assessed Mr Nicholson as a medium risk of re-offending and a low-medium harm to the community. He did not place “much” on the ASR Scale used, because of Mr Nicholson’s engagement with a psychologist. He also referred to Mr Nicholson’s positive engagement with treatment post his 2003 release and to a recommendation of home detention (if end sentence permits it). The outcomes of the restorative justice process were also noted.

[10]	He noted the victim’s impact statement with the conclusion:5

In short, you robbed him of his full potential in life. Put another way you ruined his life.

[11]	Mr Nicholson’s remorse was also acknowledged, and the Judge accepted that he has engaged in meaningful rehabilitative processes and is motivated to continue treatment.

3	At [12].
4	At [14].
5	At [20].

[12]	Turning to the gravity of the offending, the Judge pointed to the age discrepancy and the nature and extent of the offending, including stupefaction, duration (three months), premeditation and grooming as aggravating factors. He said: “the harm you inflicted is immeasurable” and “ruined his life”.6

[13]	The starting point was fixed at three years 10 months, noting the starting point adopted in R v H of four years six months on four counts of indecency against a 13- year-old.7 He uplifted this starting point by three months to reflect other prior offending, leading to a cumulative start point of four years one month. He applied a 25 per cent discount for personal mitigating factors and a further 22 per cent discount (after rounding) for guilty plea. An end sentence of 28 months was imposed.

Totality

[14]	Mr Mansfield placed much reliance on the following statements of sentencing principle made by the Court of Appeal in Fissenden:8

(a)	Where separate sentences have been imposed for different offences, on appeal the proper approach to review is to assess what would have been the appropriate sentence had one Judge sentenced the offender on the same occasion for all the offences involved.

(b)	Where there is a significant change in the sentencing tariff since the offences have been committed, sentencing should be approached based on sentencing principles applicable when the offences were committed. However, sentencing should proceed based on the characteristics of the offender as they are when the offender appears for sentence.

(c)	Delay since the offences were committed does not entitle the appellant to any special consideration in regard to sentence.

6	At [34].
7	R v H CA434/96, 18 February 1997.
8	Fissenden v R CA364/95, 21 February 1996.

(d)	Charges on which the appellant was acquitted could not be taken into account against him.

(e)	Where the previous record of an accused indicates a predilection to commit a particular type of offence, the Court may take that into consideration and may lengthen the period of confinement for the protection of the public. In such a case, the sentence still ought to bear some relationship to the intrinsic nature and gravity of the offending for which the offender is before the Court, and a reasonable relationship to the penalty justified by the gravity of that offence must be maintained.

I refer to these principles collectively as the Fissenden totality principle.

[15]	In Fissenden, the appellant committed two rapes, one in July 1982 and one in October 1982. The appellant was convicted and sentenced on the October rape in 1985 to four years’ imprisonment. He was later convicted of the July rape in 1995. He was sentenced by the District Court Judge to seven years’ imprisonment (together with a concurrent sentence of three years for associated indecency). The Court of Appeal, applying the totality principle, reduced the second rape sentence to five years, commenting that a combined 11-year sentence for the two rapes was manifestly excessive.

[16]	Fissenden  preceded  the  introduction  of  the  Sentencing  Act  2002.  As  Ms Culliney submitted for the Crown, the concept of totality that Act adopted is not literally co-extensive with the concept as it was applied in Fissenden. Section 85(2) states:

If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[17]	But the totality principle as expressed by the Court in Fissenden has the same object. It responds to the most basic requirement of sentencing, namely that any sentence imposed is proportionate to the nature and gravity of the appellant’s offending. The Court of Appeal in Skipper also acknowledged the potential for the

totality principle to apply even though the first sentence had in fact been served, although it may tell against it.9 In cases like the present, it may therefore be necessary to have regard to this broader principle of totality, as the Court stated in Fissenden. Whether it is an appropriate case to take it into account will, as with all cases, depend on the facts. Lack of proximity between the separate acts of offending and delay since the first sentencing may militate against its application.

[18]	As Mr Mansfield submits, the Judge did not expressly consider the totality of the two sets of offending when fixing sentence for the 1997 offending. But, for reasons that I will now explain, I do not consider the Judge materially erred by not doing so.

A fair sentence

[19]	It is common ground the sentence must be fixed by reference to the sentencing principles as they applied at the time of the offending. Problematically, the salient facts for retrospective sentencing are substantially different from the facts presented to the Court of Appeal in 2002. Notably, the Court of Appeal appeared to place considerable weight on the fact that there was only one criminal act in an otherwise consensual setting with a 17-year-old student over a weekend.10 The Court also discounted  the  sentence   by   25   per   cent   for   personal   circumstances.   But Mr Nicholson’s offending in 1997 strongly suggests he was a recidivist offender who preyed on young men and boys. I doubt the Court of Appeal would have been as generous about the 1998 offending or about Mr Nicholson’s personal circumstances had the full picture of his offending been known to them.

[20]	Furthermore, Mr Nicholson’s personal circumstances have significantly changed since the 2002 sentence. He is now a very different person as the outcomes of the more recent restorative justice process reveal. It is, however, speculative to suggest that Mr Nicholson would have displayed a similar level of rehabilitation and remorse if sentenced at the time of the offending. Given these imponderables, I have therefore come to the view that recasting the salient sentencing facts is fraught and inapt.

9	Skipper v R [2011] NZCA 250 at [35]-[36].
10	At [23]-[24]

[21]	In any event, with that strong caveat in mind, I have undertaken a hypothetical totality sentencing exercise. Both counsel agree that R v H provides a helpful reference point for the type of sentence that might be imposed for offending of the present kind. H was convicted on four charges of indecency involving a boy aged between 12 and
16. Like the present case, the offending spanned a period of months and involved grooming (including use of alcohol), acts of anal penetration and other sexual acts. An aggravating feature of that case is the presence of another adult offender. A starting point of about four years six months was adopted.11 The starting point adopted by Judge Ronayne of three years 10 months for the 1997 offending was therefore within range. The three-month uplift for prior convictions was also within range.

[22]	The starting point sentence on the 1998 attempted sexual violation offending of four years is also plainly unobjectionable. The combined starting point is therefore eight years one month. As with Fissenden, that combined total would have been too high had Mr Nicholson been sentenced at the time of the offending. But as noted, the present offending casts the 1998 offending in a very different light. I am not prepared to approach the facts of the 1998 offending with the same level of equanimity as the Court of Appeal. Rather, I adopt a four-year six-month starting point for the attempted rape, together with a two-year uplift for the indecency offending (being entirely separate offending against a separate victim).12 This results in a combined hypothetical start point of six years six months.

[23]	Superficially, the present starting point of eight years one month is manifestly excessive. However, I also agree with Ms Culliney that closer consideration must be given to the discounts afforded to Mr Nicholson in 2002 and now. The combined personal discounts afforded to him amount to two years or 25 per cent, so his combined end sentence is six years one month (before discount for guilty plea). This is to be compared with the discount Mr Nicholson would have received had he been sentenced in 2002 on both sets of offending. It is highly unlikely the Court of Appeal would have discounted the sentence for the 1998 offending by 25 per cent had the 1997 offending been known and I am not prepared to do so. In addition, Mr Nicholson

11	The exact start point is not recorded in the judgment of the Court of Appeal. Both counsel accepted that a start point of 4 year six months was likely.
12	As required by the Sentencing Act 2002, ss 83 and 84.

could not have then claimed a fulsome discount for rehabilitative considerations. In this regard, I am not prepared to assume that he would have engaged in a restorative justice process in 1998. Therefore, a discount of no more than say 10 per cent for personal circumstances would, in my view, be sufficient to reflect an assumed level of rehabilitation and remorse, there being nothing else in his background circumstances that might warrant a greater discount.

[24]	In the result, the proper comparison is between the actual combined six-year one-month sentence (comprised of the eight-year one-month start point and a 25 per cent, two-year discount) and the hypothetical combined five-year 10-month sentence (comprised of a six-year six-month start point, less a 10 per cent discount or eight months).

[25]	While the hypothetical is three months less than the actual, I am not satisfied the sentence imposed is manifestly excessive. Rather, the proximity of the two sentences reveals to my mind the care with which Judge Ronayne approached his sentencing task. While a different judge may well have given a greater discount for rehabilitation and the outcomes of the restorative justice process noted above, I am satisfied the sentence imposed was a fair one.

Outcome

[26]	Judge Ronayne did not expressly examine the totality of the 1997 and 1998 offending. Given the passage of time, and the imponderables involved with the retrospective sentencing exercise in this case, it was appropriate not to do so. In any event, his sentence was a fair one. The appeal against sentence is dismissed.