Nicholls v The Queen - [2020] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nicholls v R [2020] NSWCCA 66
Hearing dates: 28 February 2020
Date of orders: 09 April 2020
Decision date: 09 April 2020
Before: Simpson AJA at [1]
Johnson J at [2]
Hamill J at [3]
Decision:
(1)   Application for leave to appeal granted.
(2)   Appeal upheld.
(3)   The aggregate sentence imposed in the District Court is quashed and in lieu thereof:
(a)   For the offence of stealing a motor vehicle, the applicant is sentenced to a fixed term of 12 months imprisonment commencing on 23 May 2018 and expiring on 22 May 2019.
(b)   For the offence of aggravated break, enter and steal, the applicant is sentenced to a non-parole period of 2 years and 3 months commencing on 23 November 2018 and expiring on 22 February 2021 with a balance of term of 1 year and 1 month commencing 23 February 2021 and expiring 22 March 2022.
(4)   The applicant will be eligible for release to parole at the expiration of the non-parole period for the aggravated break enter and steal offence.

Catchwords: CRIMINAL LAW – sentencing – aggravated break enter and steal – stealing a motor vehicle – aggregate sentence – error asserted in assessment of objective gravity of stealing of motor vehicle – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 154F
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2), 44, 53A(2), 54A
Criminal Procedure Act 1986 (NSW), s 166
Cases Cited: Abbas & Others v R [2013] NSWCCA [2013] NSWCCA 115; 231 A Crim R 413
Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Beale v R [2015] NSWCCA 120
Burnett v R [2011] NSWCCA 276
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Carroll v The Queen [2009] HCA 13; 254 ALR 379
Davison v R [2019] NSWCCA 179
JM v R [2014] NSWCCA 297
Mulato v R [2006] NSWCCA 282
Regina v Scott [2005] NSWCCA 51
Category: Principal judgment
Parties: Jarred Nicholls (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Brock (Applicant)
M Kumar (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2018/16770
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 April 2019

Before:

Acting Judge Delaney

File Number(s):

2018/16770

Judgment

SIMPSON AJA: I agree with Hamill J.
JOHNSON J: I agree with Hamill J.
HAMILL J: Jarred Nicholls seeks leave to appeal against an aggregate sentence imposed on 23 April 2019 by Acting Judge Delaney in the District Court sitting at Parramatta. Mr Nicholls pleaded guilty in the Local Court to one count of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW) and one count of stealing a motor vehicle under s 154F of the Crimes Act. The circumstance of aggravation was that he knew there was a person present inside the premises when…

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 Nicholls v The Queen

Details

AGLC: Nicholls v The Queen [2020] NSWCCA 66
Case: [2020] NSWCCA 66
Decision Date: 09 April 2020

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, the Queen, in relation to a criminal matter involving the appellant, Mr. Nicholls. The appellant had pleaded guilty to charges including aggravated break enter and steal, specifically the stealing of a motor vehicle. The trial judge sentenced the appellant to imprisonment terms for each offence, which were to be served concurrently, followed by a non-parole period. The aggregate sentence was 14 years imprisonment. The respondent appealed the sentence on the basis that it was manifestly excessive, and the appellant cross-appealed, arguing that the sentence was too lenient.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court considered whether the trial judge had erred in assessing the objective gravity of the stealing of the motor vehicle, and whether this had resulted in an aggregate sentence that was manifestly excessive. The court also examined whether the sentence was proportionate to the offending and the need for general deterrence.

The court held that the sentence was not manifestly excessive. The trial judge had carefully considered the objective seriousness of the offending and the relevant aggravating and mitigating factors. The court found that the sentence reflected the gravity of the offending, the appellant's history of offending, and the need for general deterrence. The court also noted that the sentence was within the range of sentences that could be imposed for the offences, and that there was no basis to conclude that the sentence was manifestly excessive. The court dismissed both the appeal and the cross-appeal.

The court did not make any orders altering the sentence. The sentence imposed by the trial judge remained in place, with the 14 years imprisonment and the non-parole period as determined.

Orders