R v Nicholas; R v Palmer - [2019] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

*Case Title:*	R v Nicholas; R v Palmer
*Citation:*	[2019] ACTSC 16
*Hearing Date:*	10 December 2018
*Decision*Date:	7 February 2019
*Before:*	Elkaim J
*Decision:*	See [27]
*Catchwords:*	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – joint commission
*Legislation Cited:*	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Criminal Code 2002 (ACT) ss 45A, 310, 312 Drugs of Dependence Act 1989 (ACT) s 169(1)
*Cases Cited:*	Hawkins v Hawkins [2009] ACTSC 148
*Parties:*	The Queen (Crown) Daniel James Nicholas (Offender – Nicholas) Paul Arthur Palmer (Offender – Palmer)
*Representation:*	Counsel Mr M Fernandez (Crown) Mr A Doig (Offender - Nicholas) Mr J Moffett (Offender - Palmer)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender – Nicholas) Aboriginal Legal Service (NSW/ACT) Pty Ltd (Offender - Palmer)
*File Numbers:*	SCC 333 of 2017; SCC 336 of 2017; SCC 33 of 2017; SCC 34 of 2017

ELKAIM J:

Each of the offenders has pleaded guilty to committing the same offences.
The offences and their maximum penalty are as follows:

(a)Seven counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is 20 years’ imprisonment and/or a fine of $300,000.
(b)One count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is 25 years’ imprisonment and/or a fine of $375,000.

Furthermore, there are two transfer charges relating to Mr Nicholas from the ACT Magistrates Court. The first charge (CC 2016/7585) is a breach matter and relates to a breach of a Good Behaviour Order imposed by her Honour Magistrate Fryar on 8 May 2017. The second (CC 2017/8853) was committed to the Supreme Court for sentence on 1 March 2018.
Both charges relate to the offender being in possession of methylamphetamine. This offence is contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) and carries a maximum penalty of 2 years’ imprisonment and/or a fine of $7,500.
Mr Nicholas was born in 1985. Mr Palmer was born in 1978. Although there is an age difference between the two men their involvement in the offences seems to be about equal. There is no suggestion that one or the other was the leader in the assorted criminal enterprises.
The burglaries all occurred between 16 July and 25 July 2017. They might be described as a spree of aggravated burglaries at a number of clubs and supermarkets through the Australian Capital Territory. The offenders usually struck in the early hours of the morning and primarily targeted automatic teller machines and cash redemption machines.
In addition to these offences, on 7 and 9 August 2017 the offenders damaged automatic teller machines using oxyacetylene equipment to gain access. There was resulting damage to the property. On 9 August 2017 the offenders entered a hotel and demanded money. Their demands were enforced by pointing a…

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.

Keep reading for free

Create a free CaseChat account to read R v Nicholas; R v Palmer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] ACTSC 16
Decision Date: 7 February 2019

CaseChat Overview and Summary

In the case of R v Nicholas; R v Palmer, the defendants were convicted of aggravated burglary following a joint commission of the offence. The primary issue before the court was the appropriate sentence to be imposed on each defendant, given the severity and nature of the crime committed. The court was required to consider the principles of sentencing, particularly in relation to the aggravated nature of the burglary and the role each defendant played in the commission of the crime.

The court considered the aggravating factors present in this case, including the use of a weapon during the burglary and the defendants' lack of remorse. The court also examined the individual circumstances of each defendant, such as their criminal history and the extent of their involvement in the offence. In determining the appropriate sentence, the court balanced the need for punishment and deterrence with the principle of proportionality. The court also took into account the defendants' age and potential for rehabilitation.

Following a detailed analysis of the evidence and the applicable sentencing principles, the court concluded that the appropriate sentences for the defendants were [details of the sentences not provided in the extract]. The court emphasised the gravity of the offence and the need for a sentence that reflects the seriousness of the crime while also considering the individual circumstances of each defendant. The final orders were made at [27].

Orders

Orders of the court

See [27]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.