R v Nimmo - [2005] NSWCCA 295

CITATION:
R v Nimmo [2005] NSWCCA 295

HEARING DATE(S): 29/08/05

JUDGMENT DATE:

29 August 2005

JUDGMENT OF:
Spigelman CJ at 28; Ipp JA at 1; Adams J at 29

DECISION:
(1) Application for leave to appeal granted (2) Appeal dismissed.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(3) , 44(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

CASES CITED:
R v Simpson [2001] 53 NSWLR 704
R v Fidow [2004] NSWCA 172

PARTIES:
Regina v Richard Burton NIMMO

FILE NUMBER(S):
CCA 2004/2870

COUNSEL:
W Dawe QC - (Crown)
P A Rowe - (Appellant)

SOLICITORS:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
Glen Walters & Co - (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/1035

LOWER COURT JUDICIAL OFFICER:
Knight DCJ

2004/2870

SPIGELMAN CJ
IPP JA
ADAMS J
Monday, 29 August 2005

REGINA v Richard Burton NIMMO

Judgment

1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against the sentence imposed by Knight DCJ for the offence of supply prohibited drug on an ongoing basis in breach of s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

2 The offence charged was that between 1 April and 29 April 2003 the applicant, on three or more separate occasions during a period of thirty consecutive days, supplied a prohibited drug other than cannabis, namely crystalline methylamphetamine, for financial or material reward.

3 Knight DCJ, in respect of this offence, sentenced the applicant to a term of imprisonment of three years and four months commencing on 3 August 2003 and expiring on 2 December 2006 with a non-parole period of two and a half years commencing on 3 August 2003 and expiring on 2 February 2006.

4 At the same time that his Honour imposed this sentence he revoked a community service order imposed upon the applicant for the offence of demand money with menaces that he had committed on 5 December 1998. His Honour sentenced the applicant on the demand money with menaces charge to imprisonment for a fixed term of three months commencing from 4 March 2003 (the date upon which he entered into custody) and expiring on 3 August 2003. There is no appeal from that sentence.

5 The grounds of appeal are as follows:

(1) The starting point used by his Honour when calculating the sentence was too high, having regard to his Honour’s finding in respect of the objective seriousness of the offence.

(2) His Honour gave insufficient weight to those factors indicating that there were special circumstances which justified a longer than usual period of parole.

6 The first ground in my view is unarguable. His Honour did not refer in his reasons to any starting point he used. The applicant seeks to infer a starting point from the sentence imposed and submits that the sentence itself is indicative of too high a starting point. This…

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 Nimmo

Details

AGLC: R v Nimmo [2005] NSWCCA 295
Case: [2005] NSWCCA 295
Decision Date: 29 August 2005

CaseChat Overview and Summary

The matter of R v Nimmo involved an application for leave to appeal and, if granted, an appeal against the sentence imposed by Knight DCJ for the offence of supplying a prohibited drug on an ongoing basis in breach of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant, Richard Burton Nimmo, was found guilty of supplying crystalline methylamphetamine on multiple occasions within a thirty-day period. The District Court sentenced Nimmo to a term of imprisonment of three years and four months, with a non-parole period of two and a half years. The grounds of appeal centred on the alleged inappropriateness of the starting point used by the sentencing judge, insufficient consideration of special circumstances justifying a longer parole period, and the manifest excessiveness of the sentence.

The Court of Criminal Appeal addressed the grounds of appeal, noting that the starting point used by the sentencing judge was not explicitly stated and was therefore unarguable. The appeal court focused on the contention that the sentence was excessively long and that the sentencing judge failed to adequately consider special circumstances. The evidence showed that Nimmo had supplied the drug on eleven separate occasions and had a significant quantity of the drug in his possession, indicating a well-established drug dealing operation. The sentencing judge found the offence to be of medium criminality and took into account various mitigating factors, including Nimmo's early guilty plea, remorse, and prospects of rehabilitation. The judge also considered aggravating factors, such as the community harm caused by the drugs and the breach of conditional liberty.

The Court of Criminal Appeal found that the sentencing judge's reasoning was unexceptionable and that there was no error of principle. The court held that the sentence imposed was within the sentencing judge's discretion and did not constitute a manifest excess. The court further determined that the circumstances presented by Nimmo, while possibly warranting a longer parole period, did not meet the threshold of 'special circumstances' as defined in the Crimes (Sentencing Procedure) Act 1999 (NSW). The appeal court granted leave to appeal but dismissed the appeal, upholding the original sentence.

Orders