R v Nicholls - [2003] NSWCCA 76

CITATION: R v Nicholls [2003] NSWCCA 76

HEARING DATE(S): 27 March 2003

JUDGMENT DATE:
27 March 2003

JUDGMENT OF: Studdert J at 1; Smart AJ at 25

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Crimes Act, s 117
Crimes (Sentencing Procedure) Act, s 32
Criminal Appeal Act, s 6(3)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Ilbay [2000] NSWCCA 251
R v Simpson (2001) 53 NSWLR 704

PARTIES :
Regina v Shirley Eva Agnes Nicholls (nee McDermott)

FILE NUMBER(S): CCA 60176/02

COUNSEL: M.C. Grogan (Crown)
In person

SOLICITORS: S.E. O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0138

LOWER COURT
JUDICIAL OFFICER : Nash ADCJ

60176/02

STUDDERT J
SMART AJ
Thursday 27 March 2003

REGINA v SHIRLEY EVA AGNES NICHOLLS

(nee McDERMOTT)

Judgment

1 STUDDERT J: The applicant, Shirley Eva Nicholls, pleaded guilty in the District Court to eight offences of stealing from various retail outlets. The earliest of these offences was committed on 8 August 1999 and the most recent of them in May 2000.

2 His Honour Acting Judge Nash passed sentence on the applicant on 11 May 2002. In respect of one of the offences his Honour imposed a term of imprisonment of four years and six months to commence on 11 March 2002 and to expire on 10 September 2006. For that sentence his Honour specified a non parole period of two years and eight months to expire on 10 November 2004. In imposing that sentence his Honour had regard to a further eleven offences of a like nature on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act. For each of the remaining seven offences his Honour imposed a fixed term of imprisonment of nine months to commence on 11 March 2002 and to expire on 10 December 2002.

3 The applicant now seeks leave to appeal against the sentences imposed.

4 It is to be observed at the outset that each of the offences charged is in a category for which s 117 of the Crimes Act imposes a maximum penalty of five years imprisonment.

5 When one brings into account the Form 1 offences, the offences to be considered by his Honour in the sentencing task that he had were committed between December 1998 and May 2000. The value of the goods relevant to those nineteen offences was approximately $76,000.

6 The applicant was one of nine offenders sentenced by the learned judge on 11 March 2002 and he described those offenders as being part of a gang of shoplifters. Moore DCJ had earlier sentenced a tenth offender, Darren Green, on 20 April 2001. Two other offenders, Karen Fox and John Nicholls were sentenced in the Local Court.

7 Certain agreed facts were placed before the sentencing judge forming part of Exhibit A and his Honour recounted significant aspects of those agreed facts in his sentencing remarks. I draw upon those agreed facts in the following outline:

“In mid…

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 Nicholls

Details

AGLC: R v Nicholls [2003] NSWCCA 76
Case: [2003] NSWCCA 76
Decision Date: 27 March 2003

CaseChat Overview and Summary

In the case of R v Nicholls, the appellant, Shirley Eva Agnes Nicholls, appealed against the sentence imposed by the District Court. Nicholls pleaded guilty to eight counts of stealing from various retail outlets. The court was required to decide whether the sentence imposed was appropriate in light of the nature and extent of the crimes, the role of the appellant within the criminal enterprise, and whether the sentence was manifestly excessive.

The court considered the appellant's role within the shoplifting gang, noting her extensive involvement in nineteen out of forty-three offences, which totalled approximately $76,000 in stolen goods. The court found that the sentence did not miscarry in procedure and the appellant's involvement warranted a significant sentence. The court also considered the principle of parity, comparing the appellant's sentence with that of her son, Mark Nicholls. The court found that the appellant had not demonstrated that the sentence imposed was unjust, particularly given the distinctions in their respective involvements and the appellant's prior criminal history.

Furthermore, the court examined whether the District Court Judge correctly assessed the totality of the appellant's criminality and applied the appropriate discount for the guilty plea. The court concluded that the judge's assessment was appropriate and that the sentence, which required the appellant to serve a minimum of four years and six months, with a non-parole period of two years and eight months, was not manifestly excessive. The court found that the sentence was proportionate to the appellant's extensive criminal activity and her role in the shoplifting enterprise.

The final orders of the court were to grant leave to appeal but to dismiss the appeal, affirming the sentence imposed by the District Court.

Orders