Nelson v Regina [2007] NSWCCA 221

New South Wales Court of Criminal Appeal

CITATION: Nelson v Regina [2007] NSWCCA 221

HEARING DATE(S): 11 July 2007

JUDGMENT DATE: 25 July 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 21

DECISION: 1. Leave to appeal granted; 2. Appeal allowed; 3. The sentence imposed by Hosking SC DCJ on 30 March 2007 is quashed; 4. In lieu, a sentence of four months imprisonment is imposed to date from 30 March 2007, expiring 29 July 2007, at which time the applicant is entitled to be released.

CATCHWORDS: Sentence appeal - sentencing on the basis that other offences committed - no evidence of other offences - offence committed 35 years ago - range of conduct proscribed by s 76 Crimes Act 1900 not taken into account - offence not in mid-range.

LEGISLATION CITED: Crimes Act 1900

R v Moon (2000) 117 A Crim R 497 CASES CITED: R v MJR (2002) 54 NSWLR 368 AJB v Regina [2007] NSWCCA 51

PARTIES: Applicant - David George NELSON Regina - Crown

FILE NUMBER(S): CCA 2007/1368

COUNSEL: Applicant - Mr P Boulton SC Crown - Ms J Girdham

SOLICITORS: Applicant - S O'Connor Crown - S Kavanagh (Solicitor of Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0628

LOWER COURT JUDICIAL OFFICER: Hosking SC DCJ

LOWER COURT DATE OF DECISION: 30 March 2007

IN THE COURT OF CRIMINAL APPEAL 2007/1368

TOBIAS JA LATHAM J MATHEWS AJ

25 JULY 2007 DAVID GEORGE NELSON v REGINA Judgment 1 TOBIAS JA : I agree with Latham J. 2 LATHAM J : The applicant, David George Nelson, seeks leave to appeal against a sentence imposed on 30 March 2007 by Hosking SC DCJ in respect of one count of Indecent Assault Female, pursuant to the now-repealed section 76 of the Crimes Act 1900. The offence, having been committed in 1972, carried a maximum penalty of three years imprisonment.