R v Nicholls, David - [2008] NSWDC 123

CITATION: R v Nicholls, David [2008] NSWDC 123

HEARING DATE(S): 02/04/2008

JUDGMENT DATE:
3 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ;

DECISION: Convicted
Sentenced -13 months 15 days imprisonment - suspended conditional upon entering s.12 Good Behaviour Bond.

CATCHWORDS: Criminal Law - Sentencing - Aggravated Break Enter and Steal (in Company) - valuable coin and war medal collection and other items - offender tasked with removing items from property to other location - aggravating features - planning - extends beyond house to second site - owner absent for some days - lengthy duration of offenders inside - damage to property - home ransacked - $125K property loss - 18 year old offender - some coins recovered

LEGISLATION CITED: s.12 (3) Crimes (Sentencing Procedure) Act 1999

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Cuthbert [1967] 2 NSWR 329
Brewster [1998] 1 CAR 220 at 225
R v Lovelock (1978) 33 FLR 132
R v Way (2004) 60 NSWLR 168
R v Huynh [2005] NSW CCA 220

PARTIES: Regina
David Nicholls

FILE NUMBER(S): 07/61/0002

COUNSEL: D.G. Rickard for Offender

SOLICITORS: Mr J. May: Office of DPP, Dubbo, for the Crown.

JUDGMENT

HIS HONOUR:

1. John George is a numismatist. Numismatics is the study or collection of coins, tokens, paper money and related objects such as medals. Mr George was in possession of one of the top collections west of the Blue Mountains. For safekeeping the collection was stored in a safe located in a spare bedroom in his Brewarrina home.

2. On 3 July, after arranging with a nearby neighbour to feed his dogs, Mr George left Brewarrina for Lismore. The house was left with windows and doors securely locked. The coin and paper money collection was nestled safety in the locked safe. The safe was heavy. Without a trolley, it would take two persons to move that safe.

3. At 4pm on 5 July a neighbour attending the premises gave the dogs a run. He noticed everything was fine. About 8am the following morning he returned to find a small kitchen window smashed, the back screen door lock broken and the shed doors opened. He became concerned and rang police. By 10am Mr George had been informed his home had been broken into; it had been completely ransacked and the safe and its contents were missing.

4. As events had unfolded, it became apparent that two juveniles and two adults, all aboriginal males, were responsible for the breaking, entering and ransacking of Mr George’s home and stealing of his property.

5. Today David Nicholls, at eighteen, the second eldest of this group, is to be held accountable for his role in this criminal activity. He first announced his intention to be accountable when he pleaded guilty in the Local Court in Brewarrina. He confirmed his intention when he pleaded guilty to an indictment presented on Tuesday, 1 April, to a charge…

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, David

Details

AGLC: R v Nicholls, David [2008] NSWDC 123
Case: [2008] NSWDC 123
Decision Date: 3 April 2008

CaseChat Overview and Summary

The case of R v Nicholls, David, involved a criminal prosecution for aggravated break, enter, and steal in company. The court was tasked with sentencing the 18-year-old offender, David Nicholls, who had been involved in a complex theft from a residential property. The stolen items included a valuable coin and war medal collection, along with other property, amounting to a total loss of $125,000. The incident involved significant planning and extended beyond the initial house to a second site, causing extensive damage to the property. Some coins were later recovered. The court needed to determine an appropriate sentence considering the severity and aggravating factors of the crime.

The primary legal issue before the court was the appropriate sentencing for an aggravated break, enter, and steal offence committed in company. The court had to consider the planning and duration of the offence, the extensive damage to the property, and the absence of the owner for several days. Additionally, the court needed to weigh the offender's age and the partial recovery of some stolen items. The sentencing principles under Australian law, particularly those concerning aggravating factors, played a critical role in the court's deliberation.

The court found that the offence was highly aggravated by the extensive planning, the involvement of multiple sites, the length of time the offenders were inside the property, and the significant damage caused. However, it also considered the offender's age and the partial recovery of some stolen items. Ultimately, the court decided to impose a sentence of 13 months and 15 days imprisonment, suspended on the condition that the offender entered into a 12-month good behaviour bond. This decision balanced the need for punishment and deterrence with the potential for rehabilitation.

Orders

Orders of the court

Convicted Sentenced -13 months 15 days imprisonment - suspended conditional upon entering s.12 Good Behaviour Bond.

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.

CITATION:	R v Nicholls, David [2008] NSWDC 123
HEARING DATE(S):	02/04/2008
JUDGMENT DATE:	3 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ;
DECISION:	Convicted Sentenced -13 months 15 days imprisonment - suspended conditional upon entering s.12 Good Behaviour Bond.
CATCHWORDS:	Criminal Law - Sentencing - Aggravated Break Enter and Steal (in Company) - valuable coin and war medal collection and other items - offender tasked with removing items from property to other location - aggravating features - planning - extends beyond house to second site - owner absent for some days - lengthy duration of offenders inside - damage to property - home ransacked - $125K property loss - 18 year old offender - some coins recovered
LEGISLATION CITED:	s.12 (3) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert [1967] 2 NSWR 329 Brewster [1998] 1 CAR 220 at 225 R v Lovelock (1978) 33 FLR 132 R v Way (2004) 60 NSWLR 168 R v Huynh [2005] NSW CCA 220
PARTIES:	Regina David Nicholls
FILE NUMBER(S):	07/61/0002
COUNSEL:	D.G. Rickard for Offender
SOLICITORS:	Mr J. May: Office of DPP, Dubbo, for the Crown.