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Nairn v The Queen

Nairn v The Queen

Case [2015] NSWCCA 290 25 November 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nairn v R [2015] NSWCCA 290
Hearing dates: 16 November 2015
Date of orders: 25 November 2015
Decision date: 25 November 2015
Before: Johnson J   at [1]
Beech-Jones J   at [2]
R.S. Hulme AJ   at [44]
Decision:
(1)   Leave to appeal be granted; and
(2)   The appeal be dismissed.
Catchwords: SENTENCING – violent rampage – multiple victims – one victim stabbed 33 times and lost an eye – multiple offences including wounding with intention to cause grievous bodily harm – applicant suffered from mental illness – aggregate sentence of twelve years imprisonment including non-parole period of seven years and six months imprisonment – whether sentence manifestly excessive – relevance of mental illness – factors that arise in relation to mentally ill offenders can negate each other – Veen (No 2) – leave to appeal granted but appeal dismissed.
Legislation Cited: - Crimes Act 1900 – s 33(1)(a), s 47, s 97(1), s 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 - s 32(1)
- Crimes (Sentencing Procedure) Act 1999 – s 44(2C), s 54B(4), s 53A(2)
Cases Cited: - Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- Beale v R [2015] NSWCCA 120
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Engert v R (1995) 84 A Crim R 67
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- PD v R [2012] NSWCCA 242
- The Queen v Pham [2015] HCA 39
- SHR v R [2014] NSWCCA 94
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Nathan Shane Nairn (aka West) – Applicant
Regina – Respondent
Representation:
Counsel:
W.J. Hunt – Applicant
E. Balodis – Respondent
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2013/296186
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

25 September 2014

Before:

Williams ADCJ

Judgment

JOHNSON J: I agree with Beech-Jones J.
BEECH-JONES J: The applicant, Nathan Shane Nairn, also known as Nathan Douglas West, seeks leave to appeal from an aggregate sentence imposed by the District Court upon him for four offences committed during a violent rampage on the evening of 30 September 2013.
On 25 September 2014 the applicant received an aggregate sentence of imprisonment for twelve years commencing 1 October 2013 and expiring on 30 September 2025. The Court fixed a non-parole period of seven years and six months, and a balance of term of four years and six months. The earliest date that the applicant is eligible for release on parole is 31 March 2021.
Subsection 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) obliged the Court to record the fact that the…

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 Nairn v The Queen

Details

AGLC: Nairn v The Queen [2015] NSWCCA 290
Case: [2015] NSWCCA 290
Decision Date: 25 November 2015

CaseChat Overview and Summary

Nairn v The Queen involved a case where the applicant was convicted of a violent rampage resulting in multiple victims, one of whom was stabbed 33 times and lost an eye. The applicant pleaded guilty to multiple offences, including wounding with intention to cause grievous bodily harm. The applicant had a history of mental illness, which was considered during sentencing. The court imposed an aggregate sentence of twelve years imprisonment, including a non-parole period of seven years and six months. The applicant appealed the sentence, arguing it was manifestly excessive, especially considering the mental illness.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and the relevance of the applicant's mental illness in the sentencing process. The court had to balance the severity of the crimes with the mitigating factors arising from the applicant's mental health condition. The court considered whether the sentence reflected an appropriate balance between the need for punishment and the need for rehabilitation, particularly given the applicant's mental illness.

The court reasoned that while the crimes were severe and the sentence was substantial, it was not manifestly excessive. The court noted that the factors arising in relation to mentally ill offenders could negate each other and did not necessarily lead to a reduced sentence. The court referred to the principles in Veen (No 2) to determine that the sentence was proportionate to the crimes committed. The court concluded that the sentence did not fail to achieve the necessary balance and dismissed the appeal, albeit granting leave to appeal. The final orders of the court were that the appeal was dismissed, and the original sentence stood affirmed.

Orders