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R v Nicholson

R v Nicholson

Case [2016] QCA 315 29 November 2016

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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 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 29 June 2016

DELIVERED 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 dissenting

ORDERS:
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, considered

COUNSEL:

G M McGuire for the applicant/appellant
C M Kelly for the respondent

SOLICITORS:

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…

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 [2016] QCA 315
Case: [2016] QCA 315
Decision Date: 29 November 2016

CaseChat Overview and Summary

The case of R v Nicholson involved the appellant who had been sentenced to a term of imprisonment for possessing methylamphetamine, with a circumstance of aggravation. The appellant had a significant criminal history and was 37 years old at the time of the offence. The prosecution did not highlight to the sentencing judge that the appellant had previously been subject to an intensive correction order, which had been revoked shortly before the current offence. The sentencing judge made an error by stating that the offence was committed during the period of this order. The appellant sought to appeal against the sentence, arguing that the sentence was based on an incorrect premise and requesting a re-sentencing.

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

Full text does not contain this section.

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 Nicholson [2016] QCA 315

Most Recent Citation

R v Sabine [2019] QCA 36

Cases citing this decision · 7 of 7 shown

Shol v Commissioner of Police
[2024] QDC 133 Para 9

…ce[43], was of greater relevance than it may otherwise have been, in light of the appellant’s criminal history. [40]See for example R v Nicholson [2016] QCA 315 citing R v Delaney (2003) 59 NSWLR 1 at [19]-[24] and [35]. Note that the applicant Nicholson had committed the offending for which he was being sentence…
R v Beattie, Julie Elizabeth Applicant
[2024] QCA 77 Para 21

…both the prosecutor and the applicant’s counsel. It was supported by many comparable authorities including R v Hawke [2021] QCA 179, R v Nicholson [2016] QCA 315 and R v Gerhardt (2019) 3 QR 48.…
R v Finn
[2023] QSC 10 Para 1

…motivated one, can relapse several times before succeeding in taming the addiction.” [8][2016] QCA 315 at [3]. Reliance also is placed upon the observation of Keane JA in R v Johnson[9] about the significance of drug addiction: “There is much force in the submission … that the criminality of an addict who sells…
R v McNamara
[2022] QCA 73 Para 13

…casion (count 1), for which the better comparisons are said to be R v Nicholson [4] and R v Brunning .[5] [2][2016] QCA 322. [3][2019] QCA 88. [4][2016] QCA 315. [5][2018] QCA 263.…
R v Hawke
[2021] QCA 179 Para 38

…sions stated that a sentence of between three years and nine months and four years imprisonment was called for. [1][2013] QCA 351 (“ Power ”). [2][2016] QCA 315 (“ Nicholson ”).…
R v Sabine
[2019] QCA 36 Para 13

…,[3] R v Daly ,[4] R v Sartori [5] and R v Warren .[6] Of those, her Honour found that R v Daly was of the greatest relevance. [2][2004] QCA 116. [3][2016] QCA 315. [4][2004] QCA 385. [5][2006] QCA 284. [6][2014] QCA 175.…
R v Gopurenko
[2017] QDC 107 Para 1

…ntial liability to serve further imprisonment in Victoria, even to the extent that a minimal liability may be discernible.[9] [8] R v Nicholsen [2016] QCA 315 at [43]; R v Benson [2014] QCA 188 at [36]. [9] R v Herbert [2014] QCA 83 at [28], noting that this case was considered as a comparative in the Court of Ap…

View all 7 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Delaney
[2022] NSWSC 1327 Para 5

…ion order, and particularly the constraint on personal freedom that applies to participation in a residential rehabilitation program: see R v Delaney (2003) 59 NSWLR 1 at [19]-[24] and [35].…
R v Nguyen
[2015] QCA 205 Para 12

…The prosecutor relied on R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 and R v Nguyen [2015] QCA 205 at [27]-[30] to submit that the appropriate sentence would be at the end of the range identified in Hesketh at [17] of imprisonment between two and one-half years to four years.…
R v Marsanic
[2008] QCA 219 Para 13

…tence less the period of 67 days which he had spent in pre-sentence custody since 24 April 2016. In reliance on Hesketh , Nguyen and R v Marsanic [2008] QCA 219, it was submitted that the “range” of imprisonment for a commercial possession of methylamphetamine was imprisonment for two and one-half years to four y…
R v Hesketh; Ex parte Attorney-General
[2004] QCA 116 Para 12

…The prosecutor relied on R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 and R v Nguyen [2015] QCA 205 at [27]-[30] to submit that the appropriate sentence would be at the end of the range identified in Hesketh at [17] of imprisonment between two and one-half years to four years.…
R v Delaney
[2003] NSWCCA 342

…al 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, considered COUNSEL: G M McGuire for the applicant/appellant C M Kelly for the respondent SOLICITORS: Guest Law…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 15)

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 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 29 June 2016
DELIVERED 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 dissenting
ORDERS:	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, considered
COUNSEL:	G M McGuire for the applicant/appellant C M Kelly for the respondent
SOLICITORS:	Guest Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent