N.B. senior gets house arrest for running down teen who played Nicky Nicky Nine Door

A judge has sentenced a senior citizen in New Brunswick to house arrest for using his truck to run down and maim a young man after teens rang his doorbell while playing a game of what’s known as “Nicky Nicky Nine Door.”

The Crown recommended Howard Joseph Cunningham should get two years in jail and a three-year driving prohibition for pulling a U-turn in Chatham, a neighbourhood in Mirimachi, on March 23, 2023, and running over Theodore Curran, then failing to stop at the scene. But Cunningham’s lawyer successfully argued in the Court of King’s Bench for a conditional sentence.

“I accept in this matter that there was no planning or deliberation of this act by Mr. Cunningham. He was provoked by a silly, but perhaps annoying game of ‘Nicky Nicky Nine Door,'” Justice Stephen J. Doucet wrote in a recent decision.

“In the end however, Mr. Cunningham’s response was grossly excessive and disproportionate in the circumstances.”

Cunningham, who was 70 at the time, got in his truck and went looking for the culprits who called him to his door as part of the childhood prank.

“The accused drove in search of the group of boys who had played ‘Nicky Nicky Nine Door,’ which is the practice of knocking on a door or ringing a doorbell and running away, on his property,” said the judge. “When he spotted them walking the snow-covered streets of downtown Chatham, he pulled a U-turn, entered the street to which Theodore Curran was walking, increased his speed, and hit him — head-on. Theodore Curran was seriously injured.”

Cunningham pleaded guilty to aggravated assault by maiming, and failing to stop his truck at the scene. Both charges carry a maximum penalty of 14 years in prison.

“At the time of the offences, the victim, Theodore Curran had just turned 18-years old,” Doucet wrote in his decision dated May 21.

Cunningham’s lawyer recommended that running the teen down and leaving the scene warrants a conditional sentence of 18 to 24 months.

In a victim impact statement, Curran “describes the initial trauma of this incident and how the emotional and physical pain has lingered. He has trouble sleeping, and difficulty leaving his bed. He explains his physical injuries, (including) broken bones and facial wounds; more particularly a broken ankle, cracked pelvis, split lip and cracked teeth, and that his dental injuries remain unresolved. He wonders why Mr. Cunningham did not stop.”

“Despite being in his retirement years, he is employed, and lives with his partner of many years in Chatham,” said the judge. “They take care of their great-granddaughter on weekends.”

Cunningham told the author of his pre-sentence report that he’s had “prior issues with alcoholism and drug use, but has since overcome these problems,” said the decision. “These issues were not present at the time of the incident.”

Cunningham takes medications for high blood pressure and high cholesterol, said the decision. “Mr. Cunningham experiences night cramps, back pain and acid reflux. As well, he was diagnosed with gout, four to six months ago, which causes him severe pain in his feet resulting in an inability to walk at times.”

He has a prior conviction from 1985 for assault causing bodily harm “which is quite dated and not a relevant factor,” Doucet said. “I view Mr. Cunningham in these circumstances more as a first-time offender.”

Cunningham “expressed regret and contrition for his actions,” said the judge. “Probation services acknowledged that a community-based sentence with services could be accommodated and adapted to respond to Mr. Cunningham’s needs as well as the community’s needs.”

Mitigating factors in the case, according to the Crown, include Cunningham’s guilty plea, his expression of remorse and limited criminal record, said the decision. “The (defence) added to the mitigating factors, by highlighting that Mr. Cunningham’s regret and remorse are sincere, he has the support of his spouse, he is seriously committed to rehabilitation, and the (risks) of reoffending are low.”

Aggravating factors, according to the Crown, include the “serious injuries suffered by Mr. Curran, the victim’s young age, he had just turned 18, the deliberateness of the accused’s actions and lack of concern for the victim following the assault.”

His “brutal, senseless and violent act was likely to cause serious bodily injuries,” Doucet said, noting that if Cunningham “had been acting reasonably,” he should have foreseen that.

“In my view Mr. Cunningham knew of, or was willfully blind to, the risk of inflicting serious bodily injuries. Furthermore, Mr. Cunningham knew he had struck Mr. Curran but failed to stop or call for help and left. It is this which is objectively the most blameworthy.”

Cunningham went to the police station after the collision, said the judge, “but left as there was no answer, however he did not return to the scene of the incident.”

Curran sentenced Cunningham to two years less a day of house arrest. He must stay home for the first 18 months, with exceptions including work and medical appointments. The remainder of his sentence involves a nightly curfew and a three-year driving prohibition.

“A conditional sentence can be used in cases that call for denunciation and deterrence because, although a conditional sentence is served in the community and thus is more effective than incarceration at achieving goals such as rehabilitation, it ‘is also a punitive sanction capable of achieving the objectives of denunciation and deterrence,’” said the judge.

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