CITATION: Regina v Nightingale [2005] NSWCCA 147
HEARING DATE(S): 17 March 2005
JUDGMENT DATE:
22 April 2005JUDGMENT 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 1912CASES 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 482PARTIES: Regina
Scott Arthur NightingaleFILE NUMBER(S): CCA 2004/3110
COUNSEL: A: P Pearsall
R: J Bennett SCSOLICITORS: 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
Friday 22 April 2005TOBIAS JA
BUDDIN J
HALL J
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…
Continue reading R v Nightingale
Sign in free to access the full text
- AGLC
- R v Nightingale [2005] NSWCCA 147
- Case
- [2005] NSWCCA 147
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.