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Nicholson v Andreou

Nicholson v Andreou

Case [2018] NTSC 40 15 June 2018

Adequacy of Reasons for Sentence

Cumulation of Sentences

Principle of Totality

Remorse and Early Pleas

Manifestly Excessive Sentence

Criminal Law

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CITATION:Nicholson v Andreou [2018] NTSC 40
PARTIES:NICHOLSON, Shaun Ashley
v

ANDREOU, Andreas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 19 of 2017 (21718955)
DELIVERED ON:  15 June 2018
DELIVERED AT:  Darwin
HEARING DATE:  17 October 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Adequacy of reasons for sentence – whether error in ordering full cumulation of the sentences – whether failure to apply principle of totality – whether failure to take into account cooperation with police, remorse and early pleas – whether sentence was manifestly excessive – absence of reasons may support a conclusion relevant matters not taken into account – appeal allowed – in circumstances involving single episode of offending full cumulation failed to recognise extent to which criminality of one offence reflected in sentence imposed for another – whether failure to apply principle of totality considered underground of manifest excess – error in cumulation required Court to consider appropriate sentence regardless whether manifestly excessive – appeal allowed – appellant resentenced.
Local Court (Criminal Procedure) Act (NT) s 163
Sentencing Act (NT) s 5
Attorney-General (SA) v Tichy (1982) 30 SASR 84, Barav The Queen [2016] NTCCA 5, Cahyadi v R [2007] NSWCCA 1, Carroll v The Queen [2011] NTCCA 6, Emitja v The Queen [2016] NTCCA 4, JKL v The Queen [2011] NTCCA 7, Johnson v The Queen [2004] HCA 15, Johnson v The Queen [2012] NTCCA 14, Lade v Mamarika (1986) 83 FLR 312, Mill v The Queen (1988) 166 CLR 59, Morrow v The Queen [2013] NTCCA 7, Noakes v The Queen [2015] NTCCA 7, Nona v The Queen [2012] NTCCA 3, Nguyen v The Queen [2007] NSWCCA 14, Pearce v The Queen (1998) 194 CLR 610, R v Dunn (2004) 144 A Crim R1 80, R v Ellis (1986) 6 NSWLR 603, R v KM [2004] NSWCCA 65, R v McNaughton (2006) 163 A Crim R 381, R v Scanlon (1987) 89 FLR 77, R v Wilson [2005] NSWCCA 219, R v XX (2009) 195 A Crim R 38, Weininger v The Queen (2003) 212 CLR 629, Wright v The Queen (2007) 19 NTLR 123, referred to.
REPRESENTATION:
Counsel:
Appellant:A Abayasekara
Respondent:  SIJ Ledek
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1817
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nicholson v Andreou [2018] NTSC 40

LCA 19 of 2017 (21718955)
BETWEEN:

SHAUN ASHLEY NICHOLSON

Appellant

AND:

ANDREAS ANDREOU

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 15 June 2018)
[1]This is an appeal against sentence brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT).
[2]On 21 April 2017, the appellant was convicted by the Local Court…

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 Nicholson v Andreou

Details

AGLC: Nicholson v Andreou [2018] NTSC 40
Case: [2018] NTSC 40
Decision Date: 15 June 2018

CaseChat Overview and Summary

In the matter of Nicholson v Andreou, the appellant, Nicholson, sought to appeal against his sentence. The case arose from a single episode of criminal activity involving property offences. The primary legal issues before the court were whether there were errors in the sentencing process, including the adequacy of reasons for the sentence, the appropriateness of ordering full cumulation of sentences, and the failure to apply the principle of totality. Additionally, the court had to determine if the sentencing judge had failed to consider relevant mitigating factors such as the appellant's cooperation with police, his remorse, and his early pleas. The appellant also argued that the sentence was manifestly excessive.

The court found that the absence of reasons in the original judgment might support the conclusion that relevant matters were not taken into account. The court noted that the full cumulation of sentences failed to recognise the extent to which the criminality of one offence was reflected in the sentence imposed for another. The court concluded that this error in cumulation required it to consider the appropriate sentence, regardless of whether it was manifestly excessive. The appeal was allowed, and the appellant was resentenced. The court emphasised the need for adequate reasons for sentence and proper application of the principle of totality in sentencing.

Orders