R v NILSSON [2005] NSWCCA 34

R v NILSSON [2005] NSWCCA 34

The sentences miscarried because the sentencing judge wrongly assessed each offence by taking account of injuries to both victims and erred in treating the case as at the top of the possible range of seriousness. Although the offending was serious and aggravated by drug impairment, driving while disqualified, breach of a bond and bail, the individual sentences were manifestly excessive. Proper sentencing required separate sentences with some accumulation, moderated by totality, while preserving the Applicant's parole eligibility date because the appeal could not practically result in an increased sentence without affording an opportunity to withdraw.

Jurisdiction
Australia
Judgment Date
18 February 2005
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences of imprisonment quashed; Applicant resentenced.
Legal Topics
['dangerous Driving Causing Grievous Bodily Harm' 'manifestly Excessive Sentence' 'aggravating Features' 'totality Principle' 'non Parole Periods' 'parole Eligibility' 'driver Licence Disqualification']
['criminal Law' 'sentencing' 'traffic Offences'] ['dangerous Driving Causing Grievous Bodily Harm' 'manifestly Excessive Sentence' 'aggravating Features' 'totality Principle' 'non Parole Periods' 'parole Eligibility' 'driver Licence Disqualification']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating the offending as falling at the top of the possible range of seriousness.' 'Whether the sentencing judge erred by taking account of the injuries to both victims when assessing the seriousness of each separate offence.' 'Whether the individual sentences imposed for the two offences were manifestly excessive.' 'What sentences and non-parole periods should be imposed after applying the plea discount, accumulation and the principle of totality.' 'Whether the sentencing judge had power to direct release on parole and impose parole conditions for sentences of more than 3 years.']

Ratio Decidendi

The sentences miscarried because the sentencing judge wrongly assessed each offence by taking account of injuries to both victims and erred in treating the case as at the top of the possible range of seriousness. Although the offending was serious and aggravated by drug impairment, driving while disqualified, breach of a bond and bail, the individual sentences were manifestly excessive. Proper sentencing required separate sentences with some accumulation, moderated by totality, while preserving the Applicant's parole eligibility date because the appeal could not practically result in an increased sentence without affording an opportunity to withdraw.

Court Disposition

Leave to appeal granted; appeal allowed; sentences of imprisonment quashed; Applicant resentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Quash the sentences of imprisonment imposed on the Applicant on 19 May 2003 by Judge Blackmore.' 'In respect of the offence involving the occasioning of grievous bodily harm to Donna Maxfield, sentence the Applicant to imprisonment for 3 years and 9 months including a...