R v Nelson, Jacob - [2009] NSWDC 399

CITATION: R v Nelson, Jacob [2009] NSWDC 399

JUDGMENT DATE:
18 December 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted.
Sentence non-parole period of 18 months; balance of term of 2 years and 3 months.

CATCHWORDS: Criminal law - sentencing - recklessly cause GBH - standard non parole period offence - New Year's Eve party - offender invited to leave - offender returns in company - victim misunderstands relationship of other persons to offender - victim seeks to separate offender from others - offender attacts victim - bites ear completely off - impact of loss of ear - offender's earlier focus on contrast in physical attractiveness of himself and victim - offender resentful of victim's attractiveness - offender in company - Di Simoni applied - offender effected by drugs and alcohol - objective serious below mid range - mental health issues - drug and alcohol issues - early plea of guilty - standard non parole period not applied.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Hearne (2007) 124 A Cr R 457
Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740

PARTIES: Regina
Jacob Ashley Nelson

FILE NUMBER(S): 2009/000010150

COUNSEL: Defence: G Jauncey

SOLICITORS: Crown: Mr R Stainer

JUDGMENT

1. Adam Scammell’s New Year’s Eve and morning celebrations turned sour in a moment as his concern for a drug affected man he had only met that night saw him experience viciousness and life-lasting disfigurement from that man who he sought to help.

2. Jacob Ashley Nelson was the man. When speaking to police shortly after the incident he sought to minimise and rationalise his ungrateful behaviour towards the would-be good Samaritan, that is, sought to rationalise the irrational. He told police “we were wrestling...I wanted to get out of it...I knew he had me for a minute there...I was trying to fight my way out of it and I just sort of bit down and I bit him.”

3. Today Jacob Nelson is to be held accountable for his criminal actions. He has been charged with and pleaded guilty to recklessly causing grievous bodily harm to Adam Scammell. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this court, committed by this offender harming this victim in this community, R v Gladue [1999] 1SCR 688 [80].

4. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to the offender (subjective matters) the starting point for such assessment requires me to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact finding task has been circumscribed in that there has been tendered a statement of facts which is not disputed by the defence.

5. The offender’s…

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 Nelson, Jacob

Details

AGLC: R v Nelson, Jacob [2009] NSWDC 399
Case: [2009] NSWDC 399
Decision Date: 18 December 2009

CaseChat Overview and Summary

The accused, Jacob Nelson, was convicted of recklessly causing grievous bodily harm (GBH) to the victim at a New Year's Eve party. The matter was heard in the relevant court where Nelson was found guilty of the offence. The court was tasked with determining the appropriate sentence for Nelson's actions, which resulted in the victim losing their ear in the attack.

The primary legal issue before the court was to determine the appropriate sentence for Nelson, considering the circumstances of the offence and the impact on the victim. The court considered the nature of the attack, the extent of the injuries caused, and the factors that may have influenced Nelson's behaviour, such as his resentment towards the victim's attractiveness, his intoxication with drugs and alcohol, and his mental health issues. The court also had to consider the objective seriousness of the offence and the standard non-parole period for the offence, as well as any mitigating factors such as Nelson's early guilty plea.

The court found that while the standard non-parole period for the offence was not applicable, the objective seriousness of the offence was below the mid-range. The court also took into account the impact of the loss of the victim's ear and the effect it had on their quality of life. In applying the principles set out in the case of Di Simoni, the court determined that a sentence of 18 months non-parole period was appropriate, with a balance of the term of 2 years and 3 months.

The court ordered that Nelson be convicted and sentenced to a non-parole period of 18 months, with the balance of the term of 2 years and 3 months. This decision reflects the court's consideration of the circumstances of the offence, the impact on the victim, and the relevant legal principles and factors.

Orders

Orders of the court

Convicted.

Sentence non-parole period of 18 months; balance of term of 2 years and 3 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Nelson, Jacob [2009] NSWDC 399
JUDGMENT DATE:	18 December 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence non-parole period of 18 months; balance of term of 2 years and 3 months.
CATCHWORDS:	Criminal law - sentencing - recklessly cause GBH - standard non parole period offence - New Year's Eve party - offender invited to leave - offender returns in company - victim misunderstands relationship of other persons to offender - victim seeks to separate offender from others - offender attacts victim - bites ear completely off - impact of loss of ear - offender's earlier focus on contrast in physical attractiveness of himself and victim - offender resentful of victim's attractiveness - offender in company - Di Simoni applied - offender effected by drugs and alcohol - objective serious below mid range - mental health issues - drug and alcohol issues - early plea of guilty - standard non parole period not applied.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Hearne (2007) 124 A Cr R 457 Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Jacob Ashley Nelson
FILE NUMBER(S):	2009/000010150
COUNSEL:	Defence: G Jauncey
SOLICITORS:	Crown: Mr R Stainer