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R v Nicholson

R v Nicholson

Case [2010] NSWCCA 80 5 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Nicholson [2010] NSWCCA 80

HEARING DATE(S): 07/04/2010

JUDGMENT DATE:
5 May 2010

JUDGMENT OF: Beazley JA at 1; Howie J at 2; Hislop J at 48

DECISION: The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - Crown appeal - Malicious wounding with intent - plea of guilty - whether failure to assess objective seriousness - whether failure to have sufficient regard to previous record - whether discount for plea too high - whether sufficient regard to specific deterrence - whether sentence manifestly inadequate

LEGISLATION CITED: Crimes Act 1900 - s 33
Crimes (Sentencing Procedure) Act 1999 - s 21A

CATEGORY: Principal judgment

CASES CITED: R v JW [2010] NSWCCA 49
DPP v Cooke [2007] NSWCA 2; 168 A Crim R 379
R v MLP [2006] NSWCCA 271; 164 A Crim R 93
El Chammas v R [2009] NSWCCA 154
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Borkowski [2009] NSWCCA 102
Bourke v R [2010] NSWCCA 22
R v Mitchell and Gallagher [2007] NSWCCA 296
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566

PARTIES: Regina v Roy William Nicholson

FILE NUMBER(S): CCA 2007/13398

COUNSEL: P Leask - Crown
J Manuel - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/13398

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 22/05/2009

2007/13398

BEAZLEY JA
HOWIE J
HISLOP J
WEDNESDAY 5 MAY 2010

REGINA v Roy William NICHOLSON

Judgment

1 BEAZLEY JA: I agree with Howie J

2 HOWIE J: This is a Crown appeal against a sentence imposed upon the respondent for an offence of malicious wounding with intent to cause grievous bodily harm. That is an offence contrary to s 33 of the Crimes Act for which there is a maximum penalty prescribed of imprisonment for 25 years and a standard non-parole period of 7 years. On 22 May 2009 Judge English (“the Judge”) sentenced the respondent to a term of imprisonment with a non-parole period of 4 years, 4 months and 16 days from 7 June 2006 with a balance of term of 1 year 5 months and 26 days. The respondent is eligible for release to parole on 22 November 2010.

3 The Notice of Appeal was originally filed on 29 June 2009. An amended Notice of Appeal was filed on 30 March 2010. The further notice was filed as a consequence of what was said by this Court in R v JW [2010] NSWCCA 49 about the propriety of the Crown filing a Notice of Appeal without stating grounds of appeal. No point was taken by the respondent about the procedural aspects of the Crown appeal.

4 The grounds stated in the Amended Notice are as follows:

1.…

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 Nicholson

Details

AGLC: R v Nicholson [2010] NSWCCA 80
Case: [2010] NSWCCA 80
Decision Date: 5 May 2010

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentence imposed on Nicholson, who had pleaded guilty to an offence of malicious wounding with intent. The Crown argued that the sentence was manifestly inadequate and that the trial judge had failed to properly consider several factors. These included the objective seriousness of the offence, Nicholson's previous criminal record, the appropriate discount for his guilty plea, and the need for specific deterrence. The appeal was heard in the Court of Criminal Appeal, which assessed whether the original sentence should be quashed and a new sentencing hearing ordered.

The primary legal issues revolved around whether the trial judge had appropriately assessed the objective seriousness of the offence, whether sufficient regard had been given to Nicholson's criminal history, whether the discount for his guilty plea was excessive, and whether the sentence adequately addressed the need for specific deterrence. The Crown contended that the trial judge had failed to properly weigh these considerations, resulting in a sentence that did not reflect the true gravity of the offence or serve its deterrent purpose.

The Court of Criminal Appeal found that the trial judge had indeed erred in several respects. The court concluded that the judge had not sufficiently considered the objective seriousness of the offence, had not given adequate weight to Nicholson's previous criminal record, had applied an inappropriate discount for the guilty plea, and had failed to adequately address the need for specific deterrence. As a result, the Court of Criminal Appeal determined that the sentence was manifestly inadequate. Consequently, the appeal was allowed, the sentence was quashed, and the matter was remitted to the trial court for a new sentencing hearing.

In its decision, the Court of Criminal Appeal emphasised the importance of correctly assessing and balancing the various factors relevant to sentencing. The court noted that the trial judge's failure to appropriately consider these factors had resulted in a sentence that did not adequately reflect the seriousness of the offence or serve its deterrent purpose. The court also highlighted that a new sentencing hearing was necessary to ensure that all relevant considerations were properly addressed.

Orders