Regina v Nightingale [2005] NSWCCA 147

New South Wales Court of Criminal Appeal

CITATION: Regina v Nightingale [2005] NSWCCA 147

HEARING DATE(S): 17 March 2005

JUDGMENT DATE: 22 April 2005

JUDGMENT OF: Tobias JA at 1; Buddin J at 59; Hall J at 60

DECISION: (1) Leave to appeal granted; (2) Appeal allowed with respect to the third offence and the sentence imposed by his Honour Judge Knight with respect to that offence be quashed; (3) In lieu thereof sentence the applicant on the third offence to a term of imprisonment of 6 years and 3 days to date from 20 May 2005 and expire on 22 May 2011 with a non-parole period of 4 years 22 weeks and 3 days to date from 20 May 2005 and expire on 24 October 2009 at which time the applicant will be eligible to be released on parole

CATCHWORDS: CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Inconsistency between sentencing judge's expressed intention in relation to time in custody and sentences actually imposed - Assessment of discount for plea of guilty - Timing and utilitarian value of plea - Relationship between non-parole period and balance of term of sentence - Where balance of term less than one-third of non-parole period - Whether sentencing judge erred in increasing statutory proportion - Whether accumulation of sentences constituted "special circumstances" under s 44(2) of Crimes (Sentencing Procedure) Act 1999 - Whether less severe sentence warranted in law given necessity of reflecting totality of criminality - Criminal Appeal Act 1912 s 6(3)

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

R v Thomson (2000) 49 NSWLR 383 R v Hanslow [2004] NSWCCA 163 R v Dib [2003] NSWCCA 117 R v SY [2003] NSWCCA 291 R v Sundar [2005] NSWCCA 93 Simpson v The Queen (1992) 61 A Crim R 58 Close v The Queen (1992) 31 NSWLR 743 CASES CITED: R v Clissold [2002] NSWCCA 356 R v Simpson (2001) 53 NSWLR 704 R v Ibrahim [2005] NSWCCA 43 Pearce v The Queen (1998) 194 CLR 610 R v HQ [2003] NSWCCA 336 R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482