Nicholas v R [2010] NSWCCA 239

Nicholas v R [2010] NSWCCA 239

The sentencing judge erred in concluding the aggravated steal and break out offence was above mid-range seriousness, misapplied relevant factors including mental illness, and imposed a head sentence disproportionate to the non-parole period; accordingly, the head sentence was quashed and a new sentence imposed in line with statutory and case law principles.

Parties
Applicant: Jason Wayne Nicholas; Respondent: Regina
Jurisdiction
Australia
Judgment Date
20 October 2010
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Sentence
Outcome
Appeal allowed; sentence quashed; substituted sentence imposed
Legal Topics
Property Offences, Appeal Against Severity of Sentence, Objective Seriousness in Sentencing, Aggravated Break Out, Effect of Mental Illness on Sentencing
Criminal Law Property Offences Appeal Against Severity of Sentence Objective Seriousness in Sentencing Aggravated Break Out Effect of Mental Illness on Sentencing

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Parties

Jason Wayne Nicholas

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Sentence

Legal Issues

  1. 1 Whether the sentencing judge erred in finding that the objective seriousness of the aggravated steal and break out offence was above mid-range
  2. 2 Assessment of head sentence in proportion to non-parole period
  3. 3 Impact of mental illness on objective gravity of offence

Ratio Decidendi

The sentencing judge erred in concluding the aggravated steal and break out offence was above mid-range seriousness, misapplied relevant factors including mental illness, and imposed a head sentence disproportionate to the non-parole period; accordingly, the head sentence was quashed and a new sentence imposed in line with statutory and case law principles.

Court Disposition

Appeal allowed; sentence quashed; substituted sentence imposed

Orders

  • Leave granted to appeal against the sentence imposed for the offence of aggravated break out of premises; appeal allowed, sentence quashed
  • Applicant be sentenced to imprisonment with a non-parole period of 2 years and 6 months, commencing on 14 May 2012 and expiring on 13 November 2014, and a balance of term of 1 year and 6 months, expiring on 13 May 2016