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6
Court of Criminal Appeal 5 May 2010

R v Nicholson

[2010] NSWCCA 80

Assault & violence
CRIMINAL LAW CROWN APPEAL MALICIOUS WOUNDING WITH INTENT PLEA OF GUILTY WHETHER DISCOUNT FOR PLEA TOO HIGH WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Nicholson [2010] NSWCCA 80
Court: Court of Criminal Appeal, New South Wales
Date: 5 May 2010
Judge(s): Beazley JA, Howie J, Hislop J

Background

The respondent pleaded guilty to malicious wounding with intent to cause grievous bodily harm (under s 33 of the Crimes Act 1900), an offence carrying a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years. The offending arose from a stabbing at Kingswood Station in June 2006, in which the respondent attacked a woman he had been seeing, inflicting multiple stab wounds including one that caused her lung to partially collapse. The victim recovered physically within a fortnight but suffered lasting psychological harm, including Post Traumatic Stress Disorder and depression.

The respondent was 44 years old at the time of the offence and had a lengthy criminal record stretching back to 1973. Particularly significant was a prior conviction in 1989 for the same category of offence, for which he received 8 years' imprisonment, and a more recent suspended sentence from 2005 for malicious wounding. He was on that bond at the time he committed the present offence.

The District Court sentenced the respondent to imprisonment with a non-parole period of 4 years, 4 months and 16 days. The Crown appealed, arguing the sentence was manifestly inadequate on several grounds.

  • Whether the sentencing judge failed to properly assess the objective seriousness of the offence
  • Whether the sentencing judge failed to apply the principles in Veen v The Queen (No 2) (1988) regarding the use of prior criminal history in sentencing
  • Whether the sentencing judge gave excessive weight to the guilty plea
  • Whether the sentencing judge inadequately accounted for specific deterrence
  • Whether the sentence was manifestly inadequate overall

Decision

The Court of Criminal Appeal (per Howie J, with Beazley JA and Hislop J agreeing) dismissed the appeal, finding the sentence was not manifestly inadequate even though the sentencing judge had made some errors in the exercise of her discretion.

On objective seriousness, the Court accepted that the sentencing judge was entitled to find the offence was significantly below mid-range. The respondent's mental disorder reduced his culpability, and the injuries, while serious, were at the lower end of the spectrum for this type of offence. The use of a knife was an aggravating factor, but no other aggravating factors applied. Critically, the Crown did not challenge the sentencing judge's factual findings about the respondent's mental condition, which left those findings intact for the purposes of the appeal.

On the use of prior criminal history, the Court confirmed the principle from Veen (No 2) and R v McNaughton: while the respondent's record, including being on conditional liberty at the time of the offence, was an aggravating factor, it could not be used to increase the sentence beyond what was proportionate to the objective seriousness of the offence. Aims such as specific deterrence and community protection operate within that proportionality constraint, not beyond it.

The Court also noted procedural failures on the Crown's side: the respondent had an outstanding suspended sentence in the Local Court that was not addressed before the District Court sentencing, which meant the suspended sentence ultimately ran concurrently rather than cumulatively. Howie J expressed concern about this outcome but treated it as a matter to note rather than a basis for altering the result of the appeal. Ultimately, given the offence was significantly below mid-range, the gap between the non-parole period imposed and the standard non-parole period did not warrant appellate intervention.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a prior criminal record and the need for specific deterrence cannot increase a sentence beyond what is proportionate to the objective seriousness of the offence, consistent with Veen v The Queen (No 2) and R v McNaughton.
  • A finding that an offence is significantly below mid-range, based on unchallenged findings about the offender's mental condition and the nature of the injuries, can justify a non-parole period substantially below the standard non-parole period.
  • Where the Crown does not challenge the factual findings underpinning a sentencing judge's assessment of culpability, those findings remain available to support the sentence on appeal.
  • Errors in the exercise of sentencing discretion will not automatically lead to appellate intervention: the sentence must be shown to be manifestly inadequate, and the Court of Criminal Appeal declined to intervene here despite identifying some errors.
  • The Court noted a procedural failure by the prosecution in not having an outstanding suspended sentence dealt with before the District Court sentencing took place, resulting in the sentences running concurrently when they might otherwise have been cumulative.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v JW [2010] NSWCCA 49
- DPP v Cooke [2007] NSWCA 2; 168 A Crim R 379
- R v MLP [2006] NSWCCA 271; 164 A Crim R 93
- El Chammas v R [2009] NSWCCA 154
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102
- Bourke v R [2010] NSWCCA 22
- R v Mitchell and Gallagher [2007] NSWCCA 296