Nelson v R - [2007] NSWCCA 221

New South Wales
Court of Criminal Appeal

CITATION: Nelson v Regina [2007] NSWCCA 221

HEARING DATE(S): 11 July 2007

JUDGMENT DATE:
25 July 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 21

DECISION: 1. Leave to appeal granted; 2. Appeal allowed; 3. The sentence imposed by Hosking SC DCJ on 30 March 2007 is quashed; 4. In lieu, a sentence of four months imprisonment is imposed to date from 30 March 2007, expiring 29 July 2007, at which time the applicant is entitled to be released.

CATCHWORDS: Sentence appeal - sentencing on the basis that other offences committed - no evidence of other offences - offence committed 35 years ago - range of conduct proscribed by s 76 Crimes Act 1900 not taken into account - offence not in mid-range.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Moon (2000) 117 A Crim R 497
R v MJR (2002) 54 NSWLR 368
AJB v Regina [2007] NSWCCA 51

PARTIES: Applicant - David George NELSON
Regina - Crown

FILE NUMBER(S): CCA 2007/1368

COUNSEL: Applicant - Mr P Boulton SC
Crown - Ms J Girdham

SOLICITORS: Applicant - S O'Connor
Crown - S Kavanagh (Solicitor of Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0628

LOWER COURT JUDICIAL OFFICER: Hosking SC DCJ

LOWER COURT DATE OF DECISION: 30 March 2007

2007/1368

TOBIAS JA
LATHAM J
MATHEWS AJ
25 JULY 2007

DAVID GEORGE NELSON v REGINA

Judgment

1 TOBIAS JA : I agree with Latham J.

2 LATHAM J : The applicant, David George Nelson, seeks leave to appeal against a sentence imposed on 30 March 2007 by Hosking SC DCJ in respect of one count of Indecent Assault Female, pursuant to the now-repealed section 76 of the Crimes Act 1900. The offence, having been committed in 1972, carried a maximum penalty of three years imprisonment.

3 The applicant received a sentence of 14 months, of which 8 months was the non-parole period, commencing on 30 March 2007, expiring 29 November 2007.

4 The applicant pleaded guilty to the offence on 27 November 2006. His Honour accepted that the plea attracted “a substantial discount” for its utilitarian value. For reasons which will become clear, the discount was in fact 22%, although his Honour did not numerically quantify it. No issue is taken with this aspect of the sentencing proceedings. The applicant’s substantive complaints are that his Honour sentenced on the basis that the applicant had committed other offences against the complainant, in the absence of an evidentiary foundation for that approach (Ground 1), and that his Honour erred in characterising the offence as mid-range in terms of its objective gravity (Ground 3). Ground 2 complains that disproportionate weight was given to considerations of general deterrence. Ground 4 asserts that the sentence is manifestly excessive.

5 The sentencing judge recited the agreed facts in full in the course of his remarks on sentence. It is sufficient for the purposes of this appeal to state…

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 Nelson v R

Details

AGLC: Nelson v R [2007] NSWCCA 221
Case: [2007] NSWCCA 221
Decision Date: 25 July 2007

CaseChat Overview and Summary

The case of Nelson v R involved an appeal against the sentence imposed by the District Court. The appellant, Nelson, had been convicted of a serious criminal offence and the sentence was under scrutiny for its severity. The Court of Appeal was tasked with determining whether the sentence was appropriate, particularly in light of the lack of evidence regarding other alleged offences. The offence in question dated back over 35 years and the sentencing judge had referenced conduct that was not substantiated by evidence. Additionally, the appeal raised questions about whether the sentencing range prescribed by section 76 of the Crimes Act 1900 had been correctly applied, and whether the offence in question fell within the mid-range of severity.

The court had to decide if the sentence was excessive given the absence of evidence supporting the additional offences and whether the conduct not proven should have influenced the sentencing. Furthermore, the appeal questioned whether the sentencing range had been properly interpreted and if the offence warranted a mid-range sentence. The court also needed to consider if the sentencing judge's approach to the sentencing factors was appropriate, given the lack of evidence of other offences.

The Court of Appeal found that the sentence was indeed excessive because the sentencing judge had considered conduct not proven. The court noted that the offence did not fall within the mid-range of severity and that the sentencing range had not been correctly applied. The appeal was allowed, and the case was remitted to the District Court for re-sentencing. The Court of Appeal emphasised the importance of basing sentences on proven facts and correctly applying the statutory sentencing framework.

Orders