NICHOLLS v R [2023] NZCA 501

NICHOLLS v R [2023] NZCA 501 [18 October 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE COMPLAINANT IS PROHIBITEDBY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA609/2022[2023] NZCA 501BETWEEN HAYDON RONALD NICHOLLSAppellantAND THE KINGRespondentHearing: 28 September 2023Court: Gilbert, Peters and Hinton JJCounsel: J C Hannam for AppellantJ M Woodcock for RespondentJudgment: 18 October 2023 at 2 pmJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Haydon Nicholls, appeals against a sentence of nine years'imprisonment imposed by Judge A S Greig in the District Court at New Plymouth on5 October 2022.11 R v Nicholls [2022] NZDC 19630.[2] The sentence was imposed on one charge of sexual violation by unlawfulsexual connection, one representative charge of sexual conduct with a child under 12,and eight charges of sexual conduct with a young person under 16, four of which wererepresentative. In all, Mr Nicholls was convicted of 10 offences, five of which wererepresentative, all committed against the same complainant. Mr Nicholls wasconvicted of the offending following a jury trial.[3] The end sentence of nine years' imprisonment reflected the Judge's startingpoint on all the offending, there being no aggravating or, as matters then stood,mitigating factors for which adjustment would have been required.[4] Prior to sentencing, and again at sentencing, Mr Nicholls' then counsel,Mr Laurenson, sought an adjournment. He did so on the ground that he was awaitinga report on matters regarding Mr Nicholls' personal and family background which hewished to submit to the Judge pursuant to s 27 of the Sentencing Act 2002 (s 27 report).The Crown opposed any adjournment on the basis that, as Mr Nicholls continued todeny the offending, such a report could not establish a link between Mr Nicholls'background and the offending. The Judge accepted this submission and proceededwith sentencing.2[5] Mr Nicholls has now acknowledged the offending and the s 27 report, fromMs Susan Anderson dated 7 March 2023, has been received. Ms Andersoninterviewed Mr Nicholls and also spoke to one of his siblings who confirmed much ofwhat Mr Nicholls had said.[6] Counsel for Mr Nicholls on appeal, Mr Hannam, seeks leave to adduce thereport in this Court. If that application is granted, Mr Hannam seeks a reduction of10 per cent to the end sentence for matters identified in the report which Mr Hannamsubmits contributed to Mr Nicholls' offending. The 10 per cent sought equates to11 months and so would reduce the end sentence to eight years and one month'simprisonment.2 At [2]–[4].[7] Crown counsel, Ms Woodcock, opposes the admission of the report and, ifleave is granted, any reduction in the sentence. Ms Woodcock's submission, whichapplies equally if leave is granted, is that it is not possible to discern a causativecontribution between the matters identified in the report on the one hand and theoffending on the other. As there may only be a reduction in sentence when such acontribution is established, nothing is to be gained by admitting the report.Admission of the s 27 report[8] Consistently with the approach of the Supreme Court in Berkland v R, wepropose to admit the s 27 report. As the Court said in Berkland, an s 27 report is animportant tool for eliciting background information that may be relevant to sentencing.We grant leave for the s 27 report to be admitted accordingly.3Causative contribution?[9] The s 27 report documents Mr Nicholls' account of several unfortunate featuresof his upbringing, including his parents' excessive consumption of alcohol, neglect,and paternal rejection.4 Mr Nicholls himself reported excessive alcohol consumption,advising Ms Anderson that he would binge drink bourbon every second day and thathe also smoked cannabis daily. In his oral submissions to us, Mr Hannam emphasisedthat the Judge had accepted that Mr Nicholls had been drinking on most of theoccasions when the offending occurred and that Mr Nicholls' self-control had beenlowered as a result.[10] Mr Hannam submits that the conclusion to be drawn from the s 27 report isthat Mr Nicolls' experience of neglect and rejection made his offending far more likelythan would otherwise be the case, and thus the necessary causative contributionbetween background matters and offending is established.[11] We do not accept the submission that matters identified in the s 27 reportcontributed to Mr Nicholls' offending or help explain its occurrence.3 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [174] per Winkelmann CJ, William Young,Glazebrook and Williams JJ.4 We have no reason to doubt the information in the report. However, we record that Mr Nicholls'mother died prior to the report and his father was not interviewed.[12] As appears from [2] above, this offending was extensive and repetitive. It wasprolonged, having been committed over seven years. Mr Nicholls was in his late-20swhen the offending began and the complainant aged only seven. Nothing in the s 27report helps explain why Mr Nicholls would have offended in this manner, and sopersistently. We do not consider the offending could have resulted from any matterreferred to in the s 27 report.[13] To conclude, we are not satisfied that the required causative contributionbetween background matters and offending is established. In those circumstances, noreduction to the sentence is required or appropriate.[14] We add that, even if a causative contribution had been established, anyreduction to the sentence would have been modest. As the Supreme Court said inBerkland v R, the seriousness of the relevant offending may preclude a reductionaltogether or, if not, constrain its extent.5 Relevant matters in this case would includethose we have mentioned, and also the considerable harm caused to the complainant.The Judge's sentencing notes record the very adverse effects the offending has had onthe complainant who, amongst other things, now self-harms.Result[15] We grant leave to admit the report of Ms Anderson submitted pursuant to s 27of the Sentencing Act 2002.[16] The appeal against sentence is dismissed.Solicitors:Hannam & Co Lawyers, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent5 Berkland v R, above n 3, at [111] per Winkelmann CJ, William Young, Glazebrook andWilliams JJ..