Nashar v R [2020] NSWDC 940

Nashar v R [2020] NSWDC 940

Leave was granted and the sentence varied because, although the offending was above the middle of the range for stalking and intimidation and the s 5 imprisonment threshold was reached, the Local Court aggregate sentence of two years with 18-month indicative terms was too high having regard to the guilty plea, the maximum Local Court penalty, the absence of a finding that the offences were in the range of the most serious, and the relevant aggravating and mitigating factors. The appropriate disposition was an aggregate sentence of imprisonment of 12 months and 9 days, with indicative sentences of 12 months for each offence, to be served by way of an intensive correction order.

Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Criminal Severity Appeal From Local Court Sentence / District Court Appeal; Leave to Appeal Required Because the Appeal Was Commenced 56 Days Out of Time
Outcome
Leave to appeal granted; severity appeal allowed and sentence varied.
Legal Topics
['appeal From Local Court to District Court by Person Sentenced Against Sentence' 'stalking or Intimidation Intending to Cause Fear of Physical or Mental Harm' 'intensive Correction Order' 'guilty Plea Discount' 'de Simoni Principle']
['criminal Law' 'sentencing' 'domestic Violence'] ['appeal From Local Court to District Court by Person Sentenced Against Sentence' 'stalking or Intimidation Intending to Cause Fear of Physical or Mental Harm' 'intensive Correction Order' 'guilty Plea Discount' 'de Simoni Principle']

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Procedural Posture

Criminal Severity Appeal From Local Court Sentence / District Court Appeal; Leave to Appeal Required Because the Appeal Was Commenced 56 Days Out of Time

Legal Issues

  1. 1 ['Whether leave to appeal against sentence should be granted despite the appeal being commenced 56 days out of time.' "Whether the aggregate sentence of two years' imprisonment to be served by intensive correction order, with indicative terms of 18 months for each offence, was excessive." 'Whether the offences were properly characterised as below the middle of the range or above the middle of the range for stalking and intimidation.' 'Whether imprisonment was the only appropriate penalty and whether it should be served by way of an intensive correction order.']

Ratio Decidendi

Leave was granted and the sentence varied because, although the offending was above the middle of the range for stalking and intimidation and the s 5 imprisonment threshold was reached, the Local Court aggregate sentence of two years with 18-month indicative terms was too high having regard to the guilty plea, the maximum Local Court penalty, the absence of a finding that the offences were in the range of the most serious, and the relevant aggravating and mitigating factors. The appropriate disposition was an aggregate sentence of imprisonment of 12 months and 9 days, with indicative sentences of 12 months for each offence, to be served by way of an intensive correction order.

Court Disposition

Leave to appeal granted; severity appeal allowed and sentence varied.

Orders

  • ['Leave to appeal granted.' 'Severity appeal allowed and sentence varied.' 'In lieu of the Local Court sentence an aggregate sentence of imprisonment of 12 months and 9 days is imposed.' 'The indicative sentences are 12 months for each offence.' 'Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act...