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R v Nightingale

R v Nightingale

Case [2005] NSWCCA 147 22 April 2005

Sentencing

Appeal

Unjust Enrichment

Special Circumstances

Criminal Liability

Criminal Law

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CITATION:
Regina v Nightingale [2005] NSWCCA 147

HEARING DATE(S): 17 March 2005

JUDGMENT DATE:

22 April 2005

JUDGMENT OF:
Tobias JA at 1; Buddin J at 59; Hall J at 60

DECISION:
(1) Leave to appeal granted; (2) Appeal allowed with respect to the third offence and the sentence imposed by his Honour Judge Knight with respect to that offence be quashed; (3) In lieu thereof sentence the applicant on the third offence to a term of imprisonment of 6 years and 3 days to date from 20 May 2005 and expire on 22 May 2011 with a non-parole period of 4 years 22 weeks and 3 days to date from 20 May 2005 and expire on 24 October 2009 at which time the applicant will be eligible to be released on parole

CATCHWORDS:
CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Inconsistency between sentencing judge's expressed intention in relation to time in custody and sentences actually imposed - Assessment of discount for plea of guilty - Timing and utilitarian value of plea - Relationship between non-parole period and balance of term of sentence - Where balance of term less than one-third of non-parole period - Whether sentencing judge erred in increasing statutory proportion - Whether accumulation of sentences constituted "special circumstances" under s 44(2) of Crimes (Sentencing Procedure) Act 1999 - Whether less severe sentence warranted in law given necessity of reflecting totality of criminality - Criminal Appeal Act 1912 s 6(3)

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
R v Thomson (2000) 49 NSWLR 383
R v Hanslow [2004] NSWCCA 163
R v Dib [2003] NSWCCA 117
R v SY [2003] NSWCCA 291
R v Sundar [2005] NSWCCA 93
Simpson v The Queen (1992) 61 A Crim R 58
Close v The Queen (1992) 31 NSWLR 743
R v Clissold [2002] NSWCCA 356
R v Simpson (2001) 53 NSWLR 704
R v Ibrahim [2005] NSWCCA 43
Pearce v The Queen (1998) 194 CLR 610
R v HQ [2003] NSWCCA 336
R v Henry (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482

PARTIES:
Regina
Scott Arthur Nightingale

FILE NUMBER(S):
CCA 2004/3110

COUNSEL:
A: P Pearsall
R: J Bennett SC

SOLICITORS:
A: S O'Connor
R: S Kavanagh

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/1205

LOWER COURT JUDICIAL OFFICER:
Knight DCJ

CCA 2004/3110

TOBIAS JA
BUDDIN J
HALL J
Friday 22 April 2005

REGINA v SCOTT ARTHUR NIGHTINGALE

Judgment

1 TOBIAS JA: The applicant seeks leave to appeal against the severity of sentences imposed upon him by his Honour Judge Knight of the District Court at Penrith on 20 May 2004.

The charges to which the applicant pleaded guilty

2 On 2 February 2004 the applicant pleaded guilty to an alternative count on what I shall refer to as the first indictment. The Crown accepted that plea in full discharge of the indictment. The primary count had pleaded an offence…

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 Nightingale

Details

AGLC: R v Nightingale [2005] NSWCCA 147
Case: [2005] NSWCCA 147
Decision Date: 22 April 2005

CaseChat Overview and Summary

In the matter of R v Nightingale, the appellant contested the severity of his sentence, which was imposed by the sentencing judge. The appellant, having pleaded guilty to a series of criminal offences, challenged the court's assessment of the discount for his plea of guilty, the relationship between the non-parole period and the balance of his sentence, and the cumulative effect of the sentences imposed. The Court of Appeal was tasked with examining whether the sentencing judge had erred in increasing the statutory proportion, and whether the totality of the criminality warranted a less severe sentence.

The primary legal issues for the Court of Appeal to determine were whether the sentencing judge had erred in increasing the statutory proportion of the sentence, and whether the accumulation of sentences constituted "special circumstances" under section 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Court also needed to assess whether the sentencing judge had correctly applied the principles relating to the discount for a plea of guilty, the relationship between the non-parole period and the balance of the sentence, and whether the severity of the sentence was warranted in light of the necessity to reflect the totality of the criminality.

The Court of Appeal held that the sentencing judge had indeed erred in increasing the statutory proportion, as the balance of the term was less than one-third of the non-parole period. The Court found that the judge had not adequately considered the principles governing the discount for a plea of guilty and the relationship between the non-parole period and the balance of the sentence. The Court further determined that the cumulative effect of the sentences did not constitute "special circumstances" under section 44(2) of the Act. Given these errors, the Court concluded that a less severe sentence was warranted in law. Consequently, the Court of Appeal allowed the appeal, quashed the sentences imposed by the sentencing judge, and remitted the matter to the District Court for resentencing.

The final orders of the Court of Appeal were that the sentences imposed by the District Court be quashed, and the matter be remitted to that court for resentencing, taking into account the principles identified by the Court of Appeal as having been misapplied in the original sentencing.

Orders