R v Nahle - [2007] NSWCCA 40

New South Wales
Court of Criminal Appeal

CITATION: R v Nahle [2007] NSWCCA 40
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/2/07

JUDGMENT DATE:
22 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Howie J at 3

DECISION: 1. The sentences imposed by Sides DCJ are quashed; 2. In lieu the following sentences are imposed; (a) for the offence of inflict grievous bodily harm imprisonment for 16 months with a non-parole period of 12 months to date from 3 December 2005 with the non-parole period expiring on 2 December 2006; (b) for the offences of assault occasioning actual bodily harm a fixed term of imprisonment for 5 months to date from 3 December 2006 and to expire on 2 May 2007; (c) for the offence of kidnapping imprisonment for 2 years and 9 months to date from 3 May 2007 to expire on 2 February 2010 with a non–parole period of 1 year and 8 months to expire 2 January 2009 the date upon which the respondent is to be released to parole

CATCHWORDS: Criminal law - sentencing – Crown appeal – kidnapping and assault on single victim and further offence of violence on bail - respondent absconded on bail then surrendered to police after more than six years – whether too much weight given to rehabilitation – whether surrender constitutes assistance to the authorities – whether assaults on victim part of the facts of kidnapping – finding special circumstances to reduce non-parole period on basis of accumulation of sentences – whether sentence manifestly inadequate

LEGISLATION CITED: Bail Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: AB v The Queen (1999) 198 CLR 111
R v Bardo (NSWCCA, unreported, 14 July 1992)
R v MAK and MSK [2006] NSWCCA 381
R v Pham (1991) 55 A Crim R 128
R v Simpson (1992) 61 A Crim R 58
R v Sutton [2004] NSWCCA 225
R v Thompson (1987) 37 A Crim R 97
R v Wall [2002] NSWCCA 42

PARTIES: Regina (Appellant)
Hassan Nahle (Respondent)

COUNSEL: J Dwyer (Appellant)
H Dhanji (Respondent)

SOLICITORS: S Kavanagh (Appellant)
S O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/213024
06/21/3101

LOWER COURT JUDICIAL OFFICER: Sides DCJ

2006/2237

McCLELLAN CJ at CL
SULLY J
HOWIE J
Thursday 22 February 2007

REGINA v Hassan NAHLE

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 SULLY J: I agree with Howie J.

3 HOWIE J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 in respect of sentences imposed by Sides DCJ (the Judge). The respondent was before the court having pleaded guilty to three offences arising from two separate incidents. The offences occurred in 1999 but the respondent absconded on bail and did not return to Australia until early 2006. The respondent pleaded guilty…

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 R v Nahle

Details

AGLC: Regina v Nahle [2007] NSWCCA 40
Case: [2007] NSWCCA 40
Decision Date: 22 February 2007

CaseChat Overview and Summary

The respondent, Nahle, was convicted of kidnapping and assaulting a single victim, as well as committing a further offence of violence while on bail. The Crown appealed the sentence on the basis that it was manifestly inadequate. Nahle absconded on bail and only surrendered to police after more than six years. The appeal centred on whether the trial judge had given too much weight to Nahle's rehabilitation and whether his surrender constituted assistance to the authorities. It was also argued that the assaults on the victim were part of the facts of the kidnapping, and that the trial judge had erred in finding special circumstances to reduce the non-parole period on the basis of the accumulation of sentences.

The court held that the trial judge had not erred in finding that Nahle's surrender constituted assistance to the authorities, as it demonstrated his acceptance of responsibility for his actions. The court also found that the assaults on the victim were not part of the facts of the kidnapping, but rather separate offences that were properly considered in the sentencing process. The court held that the trial judge had not given too much weight to Nahle's rehabilitation, as it was a relevant factor to consider in determining an appropriate sentence. However, the court found that the sentence was manifestly inadequate and ordered a new sentencing hearing.

The court held that the trial judge had not erred in considering Nahle's rehabilitation as a relevant factor in determining an appropriate sentence. However, the court found that the sentence was manifestly inadequate and ordered a new sentencing hearing. The court held that the trial judge had not properly considered the severity of the offences and the need for general deterrence. The court also found that the trial judge had not given sufficient weight to the impact of the offences on the victim. The court held that the sentence was manifestly inadequate and ordered a new sentencing hearing to ensure that an appropriate sentence was imposed.

Orders