R v Nelson

Case [2016] NSWCCA 130


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: R v Nelson [2016] NSWCCA 130
Hearing dates:6 June 2016
Decision date: 06 July 2016
Before: Basten JA at [1];
Rothman J at [57];
Fagan J at [86]
Decision:

(1)   Allow the Director’s appeal and set aside the sentences imposed in the District Court on 3 December 2015.

 

(2)   Resentence the offender to an aggregate sentence of imprisonment for 3 years, as follows:

 

(a)   make a finding of special circumstances;
(b)   impose a non-parole period of 2 years with an additional term of 1 year;
(c)   direct that the sentence shall commence from the date 8 months before the date on which the offender is taken into custody with respect to this sentence.

 

(3)   The non-parole period will expire on a date two years from the date on which the sentence commences.

 (4)   Direct that the offender be released on parole at the end of the non-parole period, subject to the prescribed conditions for supervision whilst on parole.
Catchwords: CRIMINAL LAW – appeal against sentence – bonds and suspended sentences – sexual intercourse with females under 16 years – manifest inadequacy – whether sentencing judge erred in assessment of objective seriousness – young offender – whether judge erred in failing to accumulate sentences for offences with respect to separate complainants
Legislation Cited: Crimes Act 1900 (NSW), s 66C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12, 32, 33, 50; Pt 4
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
CMB v The Queen [2015] HCA 9; 89 ALJR 407
DBW v R [2007] NSWCCA 236
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Hogan v Regina [2008] NSWCCA 150
MJ v R, CPD v R [2010] NSWCCA 52
Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
O'Brien v R [2013] NSWCCA 197
R v Engert (1995) 84 A Crim R 67
R v English [2000] NSWCCA 245
R v G [2009] 1 AC 92
R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
R v King [2009] NSWCCA 117
R v LNT [2005] NSWCCA 307
R v McHugh (1985) 1 NSWLR 588
R v Muldoon (unrep, 13/12/1990, NSW CCA)
R v Newman, R v Simpson [2004] NSWCCA 102; (2004) A Crim R 361
R v RD [2014] NSWCCA 103
R v Sea (Court of Criminal Appeal (NSW), 13 August 1990, unrep)
R v Schwenke [2004] NSWCCA 289
R v Taane [2014] NSWCCA 330
R v Tuala [2015] NSWCCA 8
Regina v AN [2005] NSWCCA 239
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wiggins v R [2010] NSWCCA 30
Texts Cited: The Hon P McClellan and A Doyle, “Legislative Facts and Section 144 – A Contemporary…

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R v Nelson [2016] NSWCCA 130
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[2016] NSWCCA 130
Decision Date

CaseChat Overview and Summary

The appeal in R v Nelson concerned the defendant's sentencing for sexual offences involving two separate complainants, both of whom were under the age of 16. The trial judge had imposed individual sentences for each offence, which were subsequently deemed inadequate by the appellate court. The appeal was heard in the Court of Criminal Appeal of New South Wales.

The primary legal issues the court needed to address were whether the sentencing judge had erred in assessing the objective seriousness of the offences and whether the judge had correctly considered the requirement to cumulatively assess sentences for multiple offences involving separate victims. The court also had to determine if the sentences were manifestly inadequate given the gravity of the crimes committed.

The Court of Criminal Appeal found that the sentencing judge had erred in not adequately assessing the objective seriousness of the crimes and in not cumulatively assessing the sentences for the offences involving different complainants. The court emphasised that the crimes were of considerable seriousness due to the age of the victims and the nature of the offences. Consequently, the sentences imposed were deemed manifestly inadequate. The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration.

The final orders of the court were that the sentences previously imposed on the defendant were quashed, and the case was remitted back to the sentencing court for re-sentencing, with specific directions to properly assess the cumulative seriousness of the offences and to impose a sentence that appropriately reflects the gravity of the crimes committed against two separate victims.

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