SUPREME COURT OF QUEENSLAND
CITATION:
R v Nicholson [2016] QCA 315
PARTIES:
R
v
NICHOLSON, Murray George
(applicant/appellant)FILE NO/S:
CA No 184 of 2016
SC No 431 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 29 June 2016DELIVERED ON:
29 November 2016
DELIVERED AT:
Brisbane
HEARING DATE:
10 November 2016
JUDGES:
Margaret McMurdo P, Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, Morrison JA and Mullins J concurring as to the orders made, Margaret McMurdo P dissentingORDERS: 1. Leave to amend the proposed grounds of appeal by adding a further ground of appeal:
“The sentence proceeded on the basis of an error of fact, namely that the offence was committed during the currency of the intensive correction order imposed on 13 October 2014.”
2. Leave to adduce the further evidence (exhibit 1) relating to the revocation of the intensive correction order on 28 May 2015.
3. Application for leave to appeal against sentence granted.
4. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was sentenced to three years and nine months’ imprisonment with parole eligibility after about one year and two months for possessing methylamphetamine with a circumstance of aggravation – where the appellant was 37 years old when he offended and had a significant and relevant criminal history largely associated with his long term drug addiction – where at the sentencing hearing the prosecutor did not draw the sentencing judge’s attention to the revocation prior to the offending of an intensive correction order for a period of imprisonment of 12 months that had been imposed nine months prior to the commission of the offence – where the reference in the sentencing judge’s sentencing remarks to the offence being committed during the period of that order was an error of fact – where the offending was committed soon after the appellant completed a residential treatment program related to the intensive correction order – in re-sentencing on appeal what sentence would be appropriate to the appellant’s offending and circumstances
R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342, considered
R v Hesketh; ex parte Attorney-General (Qld)[2004] QCA 116, consideredCOUNSEL:
G M McGuire for the applicant/appellant
C M Kelly for the respondentSOLICITORS:
Guest Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: I agree with Mullins J’s analysis of the facts and issues in this application for leave to appeal against sentence and that leave to amend the proposed grounds of appeal should be given. I also agree with her Honour that the sentencing judge made an error of fact warranting the granting of leave to appeal and requiring this Court to re-exercise the sentencing discretion to determine whether the appeal against sentence should be allowed. Unlike Mullins J, however, I would…
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- AGLC
- R v Nicholson [2016] QCA 315
- Case
- [2016] QCA 315
- Decision Date
CaseChat Overview and Summary
The central legal issues in this appeal were whether the error of fact made by the sentencing judge was significant enough to warrant interference with the sentence and, if so, what sentence would be appropriate given the appellant's circumstances. The court had to consider whether the error influenced the sentence, the relevance of the appellant's criminal history, and the appropriate punishment for the offence committed. Additionally, the court had to determine if the appellant's completion of a residential treatment program shortly before the offence should be taken into account.
The court allowed the appellant to amend the grounds of appeal to include the error of fact made by the sentencing judge. It also permitted the introduction of further evidence regarding the revocation of the intensive correction order. The court found that the error made by the sentencing judge was significant and could have influenced the sentence. However, after considering the appellant's criminal history, the nature of the offence, and the completion of a treatment program, the court concluded that the original sentence was appropriate. The appeal was dismissed, and the original sentence was upheld.
No further orders were made beyond those already mentioned. The appeal was dismissed, and the sentence remained unchanged.
Orders
Orders of the court
1. Leave to amend the proposed grounds of appeal by adding a further ground of appeal:
“The sentence proceeded on the basis of an error of fact, namely that the offence was committed during the currency of the intensive correction order imposed on 13 October 2014.”
2. Leave to adduce the further evidence (exhibit 1) relating to the revocation of the intensive correction order on 28 May 2015.
3. Application for leave to appeal against sentence granted.
4. Appeal dismissed.
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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