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R v Nichols

R v Nichols

Case [2021] NSWDC 661 10 December 2021

Recklessly Cause Grievous Bodily Harm

Sentencing

Negligence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v NICHOLS [2021] NSWDC 661
Hearing dates: 26 November 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
The offender is sentenced to a non-parole period of 1 year 5 months to commence on 3 December 2021 and which will expire on 2 May 2023. The balance of term of 1 year 2 months (14 months) will commence on 3 May 2023 and will expire on 2 July 2024.

Catchwords:
CRIME – recklessly cause grievous bodily harm in company – slight provocation - not all injuries attributable to offender
SENTENCING – parity with co-offender – diagnosis of ADHD – general deterrence

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Doan v R (2000) 50 NSWLR 115
Dungay v R [2020] NSWCCA 209
Elphick v R [2021] NSWCCA 167
Greaves v R [2020] NSWCCA 140
Imbornone v R [2017] NSWCCA 144
Karout v R [2019] NSWCCA 253
Lai v R [2021] NSWCCA 217
Locke v R (2009) 207 A Crim R 34
Mbele v R [2021] NSWCCA 182
McCullough v R [2009] NSWCCA 94
Park v The Queen [2021] HCA 37
Quinn v DPP (Cth) [2021] NSWCA 294
R v Elphick [2021] NSWDC 1
R v Foster [2020] NSWDC 648
R v Mitchell, R v Gallagher (2007) 177 A Crim R 94
Stevens v R [2017] NSWCCA 216
Toller v R [2021] NSWCCA 204
Valentine v R [2020] NSWCCA 116
Zrieka v R (2012) 223 A Crim R 460

Category: Sentence
Parties: Michael Robert NICHOLS
Representation:
Counsel:
Mr D Price (for the Offender)
Solicitors:
Mr D Waldmann (for the DPP)
Mr N Brown (for the DPP)
Ms K Hunter (for the Offender)

File Number(s): 2019/208158
Publication restriction: No

Judgment

The offender appears for sentence in respect of one offence, namely that he:

On or about 30 June 2019 at Manly in the State of New South Wales, while in company with William McManus and Lachlan Foster caused grievous bodily harm to Ryan Davies, being reckless as to causing actual bodily harm to him, contrary to s 35(1) of the Crimes Act, 1900.

It is agreed that the offender entered the plea of guilty on the first day of the trial, namely 3 May 2021. The offender communicated his willingness to enter a plea of guilty on 22 April 2021. Accordingly by virtue of s 25C(2) of the Crimes (Sentencing Procedure) Act the offender is entitled to a discount of 5% for the utilitarian value of the plea.
Mr Price of counsel for the offender in written submissions put matters relating to the plea that were not pressed at the sentence hearing. I understood Mr Price to accept at the sentence hearing that as the matter was subject to s 25C(2) of the Crimes (Sentencing Procedure) Act the offender was entitled to the numerical discount of 5%. However, as I indicated at the sentence hearing the plea…

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 Nichols

Details

AGLC: R v Nichols [2021] NSWDC 661
Case: [2021] NSWDC 661
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of R v Nichols involved the defendant being charged with recklessly causing grievous bodily harm in company. The incident arose from a dispute between the defendant and another individual, with the defendant's actions resulting in significant injuries to the victim. The matter was heard in the Supreme Court of New South Wales, where the defendant faced charges that carried substantial penalties under the Crimes Act 1900.

The legal issues before the court included determining whether the defendant's actions were reckless, the degree of provocation, and the extent to which the injuries were attributable to the defendant. The court also had to consider the defendant's diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and its impact on the offence and sentencing. The defendant argued that the provocation and his ADHD diagnosis warranted a reduced sentence. Conversely, the prosecution argued for a sentence that reflected the gravity of the offence and the need for general deterrence.

The court found that while the defendant's actions were reckless, the provocation, though slight, played a role in mitigating the culpability. However, not all the injuries sustained by the victim could be attributed to the defendant, leading to a nuanced assessment of his responsibility. The court also acknowledged the defendant's ADHD diagnosis but determined that it did not absolve him of responsibility. Considering the need for parity with co-offenders and the requirement for general deterrence, the court sentenced the defendant to a non-parole period of 1 year 5 months, with the balance of the term to be served post the non-parole period. This sentence aimed to balance the defendant's culpability with the mitigating factors presented.

Orders

Orders of the court

The offender is sentenced to a non-parole period of 1 year 5 months to commence on 3 December 2021 and which will expire on 2 May 2023. The balance of term of 1 year 2 months (14 months) will commence on 3 May 2023 and will expire on 2 July 2024.

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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Citations

AGLC Citation

R v Nichols [2021] NSWDC 661

Most Recent Citation

Regina v Offer [2000] NSWSC 839

Cases citing this decision · 2 of 2 shown

R v J, SM
[2013] SASCFC 96 Para 5

…ion.[39] [38] Toohey v Metropolitan Police Commissioner [1965] AC 595 at 609 per Lord Pearce (Lords Reid, Morris, Hobson and Donovan agreing). [39] Nichols v The Queen (2005) 219 CLR 196 at [61]-[62] per McHugh J, [173]-[175] per Gummow and Callinan JJ, [205]-[206] per Kirby J and [262] per Hayne and Heydon JJ (Gleeson CJ at…
Regina v Offer
[2000] NSWSC 839

…IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70096 of 1998 GREG JAMES, J. FRIDAY 25 AUGUST 2000 REGINA v. PAUL MICHAEL OFFER SENTENCE 1 HIS HONOUR: On 26 April 2000, an indictment was presented against the offender, Paul Michael Offer, charging him with one count of having, on 15 Fe…

View all 2 citing cases →

Cases cited in this decision · 23 of 23 shown

Quinn v Commonwealth Director of Public Prosecutions
[2021] NSWCA 294 Para 78

…Between the sentence hearing and the passing of sentence the Court of Appeal handed down the decision of Quinn v DPP (Cth) [2021] NSWCA 294. In the matter presently under consideration the offending and the need for general deterrence even though moderated to some extent requires that there be a sentence of full ti…
Park v The Queen
[2021] HCA 37 Para 61

…e case - see Doan v R (2000) 50 NSWLR 115; Greaves v R [2020] NSWCCA 140 at [66] and more recently the decision of the High Court in Park v The Queen [2021] HCA 37 at [23]ff.…
Lai v R
[2021] NSWCCA 217 Para 38

…ppear for offenders persist in tendering such letters. The Crown in their written submissions refers the court to the comments of Bellew J in Lai v R [2021] NSWCCA 217, where his Honour said at [79]-[80]:…
Toller v R
[2021] NSWCCA 204 Para 69

…issue of the pandemic into account in accordance with authorities such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. If it is not already plain from what I have already said, I find on balance that the offender has good prospects of rehabilitation.…
Mbele v R
[2021] NSWCCA 182 Para 69

…tody is a live issue. I take the issue of the pandemic into account in accordance with authorities such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. If it is not already plain from what I have already said, I find on balance that the offender has good prospects of…
Elphick v R
[2021] NSWCCA 167 Para 77

…ies relating to Intensive Correction Order in R v Elphick [2021] NSWDC 1. The approach was approved of by the Court of Criminal Appeal in Elphick v R [2021] NSWCCA 167 per Adamson J (Basten JA, Walton J agreeing) at [26]-[27]. In particular I note the decision of Karout v R [2019] NSWCCA 253 and what was said by Ful…
R v Elphick
[2021] NSWDC 1 Para 77

…As I indicated at the sentence hearing I undertook a review of the authorities relating to Intensive Correction Order in R v Elphick [2021] NSWDC 1. The approach was approved of by the Court of Criminal Appeal in Elphick v R [2021] NSWCCA 167 per Adamson J (Basten JA, Walton J agreeing) at [26]-[27]. In particula…
R v Foster
[2020] NSWDC 648 Para 5

…ho was sentenced by me to a total sentence of 2 years 9 months imprisonment with a non-parole period of 18 months on 29 October 2020 - see R v Foster [2020] NSWDC 648.…
Dungay v R
[2020] NSWCCA 209 Para 73

…ined by the victim were relevant to the sentence to be imposed. Foster had a record as a juvenile, which was ignored given the decision in Dungay v R [2020] NSWCCA 209.…
Greaves v R
[2020] NSWCCA 140 Para 61

…two years is a jurisdictional limit and not a maximum penalty reserved for a worse category type case - see Doan v R (2000) 50 NSWLR 115; Greaves v R [2020] NSWCCA 140 at [66] and more recently the decision of the High Court in Park v The Queen [2021] HCA 37 at [23]ff.…
Valentine v R
[2020] NSWCCA 116 Para 69

…ly one in which full time custody is a live issue. I take the issue of the pandemic into account in accordance with authorities such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. If it is not already plain from what I have already said, I find on balance that the o…
Karout v R
[2019] NSWCCA 253 Para 77

…al Appeal in Elphick v R [2021] NSWCCA 167 per Adamson J (Basten JA, Walton J agreeing) at [26]-[27]. In particular I note the decision of Karout v R [2019] NSWCCA 253 and what was said by Fullerton J at [94] of that decision namely:…
Stevens v R
[2017] NSWCCA 216 Para 21

…The Crown in their written submissions has referred the court to the decision of Stevens v R [2017] NSWCCA 216 at [41]-[42]. The judgment of Bellew J does not quite set out the factors that inform the objective seriousness as stated by the author of the Crown's written submissions. Be that as it may it seems that th…
Imbornone v R
[2017] NSWCCA 144 Para 39

…I also note the comments by Wilson J (specifically endorsed by Hulme J in his brief additional comments) in Imbornone v R [2017] NSWCCA 144 at [57].…
MB v R
[2013] NSWCCA 254 Para 69

…ng persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. [104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the p…
AI v R
[2011] NSWCCA 95 Para 69

…d in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]. [104] This Court has emphasised that the principles of general deterrence and denunciation of crimes serve…
McIntyre v R
[2009] NSWCCA 305 Para 47

…with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
McCullough v R
[2009] NSWCCA 94 Para 20

…as been made clear in a number of authorities, particularly R v Mitchell, R v Gallagher (2007) 177 A Crim R 94 at [27] per Howie J and McCullough v R [2009] NSWCCA 94 at [37] per Howie J that offences such as the matter presently under consideration are result offences and generally the more serious the injuries th…
R v Mitchell; R v Gallagher
[2007] NSWCCA 296

…ugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to cr…
R v Cage
[2006] NSWCCA 304 Para 31

…. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
Wise v R
[2006] NSWCCA 264 Para 31

…the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].”…
R v Doan
[2003] NSWSC 345 Para 61

…2 years full time custody". The two years is a jurisdictional limit and not a maximum penalty reserved for a worse category type case - see Doan v R (2000) 50 NSWLR 115; Greaves v R [2020] NSWCCA 140 at [66] and more recently the decision of the High Court in Park v The Queen [2021] HCA 37 at [23]ff.…
R v AEM
[2002] NSWCCA 58 Para 92

…This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].’”…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	R v NICHOLS [2021] NSWDC 661
Hearing dates:	26 November 2021
Date of orders:	10 December 2021
Decision date:	10 December 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	The offender is sentenced to a non-parole period of 1 year 5 months to commence on 3 December 2021 and which will expire on 2 May 2023. The balance of term of 1 year 2 months (14 months) will commence on 3 May 2023 and will expire on 2 July 2024.
Catchwords:	CRIME – recklessly cause grievous bodily harm in company – slight provocation - not all injuries attributable to offender SENTENCING – parity with co-offender – diagnosis of ADHD – general deterrence
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Doan v R (2000) 50 NSWLR 115 Dungay v R [2020] NSWCCA 209 Elphick v R [2021] NSWCCA 167 Greaves v R [2020] NSWCCA 140 Imbornone v R [2017] NSWCCA 144 Karout v R [2019] NSWCCA 253 Lai v R [2021] NSWCCA 217 Locke v R (2009) 207 A Crim R 34 Mbele v R [2021] NSWCCA 182 McCullough v R [2009] NSWCCA 94 Park v The Queen [2021] HCA 37 Quinn v DPP (Cth) [2021] NSWCA 294 R v Elphick [2021] NSWDC 1 R v Foster [2020] NSWDC 648 R v Mitchell, R v Gallagher (2007) 177 A Crim R 94 Stevens v R [2017] NSWCCA 216 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116 Zrieka v R (2012) 223 A Crim R 460
Category:	Sentence
Parties:	Michael Robert NICHOLS
Representation:	Counsel: Mr D Price (for the Offender) Solicitors: Mr D Waldmann (for the DPP) Mr N Brown (for the DPP) Ms K Hunter (for the Offender)
File Number(s):	2019/208158
Publication restriction:	No