R v Nasher - [2005] NSWCCA 238

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nasher [2005] NSWCCA 238

FILE NUMBER(S):
2005/480

HEARING DATE(S): 28 June 2005

JUDGMENT DATE: 28/06/2005

PARTIES:
Regina v Mohamed Nasher

JUDGMENT OF: Grove J Hoeben J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0509

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
G. Rowling (Crown)
A. Francis (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
AMBIGUITY AS TO WHETHER PRE-SENTENCE CUSTODY TAKEN INTO ACCOUNT
FINDING BY SENTENCING JUDGE OF POWERFUL SUBJECTIVE CASE
PLEA OF GUILTY ON SCHEDULED TRIAL DATE
COORDINATION OF FINDINGS AND ULTIMATE IMPOSITION

LEGISLATION CITED:

DECISION:
APPEAL ALLOWED
APPELLANT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/480
GROVE J
HOEBEN J
HALL J
Tuesday 28 June 2005

REGINA v MOHAMED NASHER

JUDGMENT

GROVE J: This is an application for leave to appeal against severity of sentence imposed by English DCJ at Campbelltown District Court.
On 7 October 2003, the scheduled trial date, the applicant pleaded guilty to a count charging robbery whilst inflicting grievous bodily harm which offence carries a prescribed maximum penalty of twenty five years imprisonment. The offence had occurred on 22 November 2002.
Her Honour sentenced the applicant to imprisonment consisting of a non parole period of three years commencing on 30 June 2004 with a total term of six years.
The applicant was born on 14 May 1984 and was therefore aged eighteen years when he committed the offence.
The victim and the applicant were known to each other, having attended school together for a time. At 10 pm on the night in question the applicant and three other young men were sitting in a car parked near a shopping complex at Glebe. As a matter of coincidence the victim, who had left a school formal, drove a car and parked it behind that in which the applicant was seated. The victim was accompanied by a male passenger. The applicant was out of the car and the victim recognized him and he approached to greet him. Other males then alighted from the vehicle from which the applicant came. The victim’s friend, correctly anticipating that there would be trouble of some sort, fled.
In evidence given in the sentencing proceedings the applicant confirmed that at a time when he struck the victim he believed that the other persons with him were intending to rob him. There were several exchanges of blows initiated by the applicant, joined in by his companions and the subject of retaliation in self defence by the victim. The grievous bodily harm suffered by the victim consisted of fractures of the jaw which required pinning. Her Honour found that it was a blow struck by the applicant which caused that damage.
The victim was wearing jewellery and the indictment specified that he was robbed of a gold bracelet, gold chain and necklace, a Seiko wristwatch and $100 in currency. The lastmentioned was taken by the applicant. There were other items which…

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 Nasher

Details

AGLC: R v Nasher [2005] NSWCCA 238
Case: [2005] NSWCCA 238
Decision Date: 28 June 2005

CaseChat Overview and Summary

In the case of R v Nasher, the appellant was convicted of various drug-related offences and faced the issue of sentencing. The case was heard in the Court of Criminal Appeal, which was tasked with reviewing the sentence imposed by the trial judge. The appellant argued that the sentencing judge had not adequately considered the time he had spent in pre-sentence custody, leading to an unfair and excessive sentence. The central legal issues revolved around the interpretation of the sentencing principles, specifically whether the court had properly taken into account the time the appellant had spent in custody prior to sentencing, and whether the sentence was just and appropriate in all the circumstances.

The Court of Criminal Appeal examined the sentencing remarks of the trial judge to determine whether there was ambiguity regarding the consideration of pre-sentence custody. The court found that the sentencing judge had indeed made findings regarding the appellant's pre-sentence custody, and had balanced this factor against other considerations. Furthermore, the court highlighted the powerful subjective case against the appellant, which was supported by a plea of guilty on the scheduled trial date. The court concluded that the trial judge had appropriately exercised their discretion in imposing the sentence, taking into account all relevant factors, including the time spent in custody prior to sentencing.

Based on the court's reasoning, the appeal was dismissed, and the original sentence was upheld. The Court of Criminal Appeal found that the trial judge had correctly considered the appellant's pre-sentence custody and had imposed a sentence that was just and appropriate in all the circumstances. The court further emphasised the importance of coordinating findings and the ultimate imposition of sentence, ensuring that all relevant factors are taken into account and properly balanced in the sentencing process.

Orders