Nicholls v R [2020] NSWCCA 66

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nicholls v R [2020] NSWCCA 66 Hearing dates: 28 February 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Before: Simpson AJA at [1] Johnson J at [2] Hamill J at [3] Decision: (1) Application for leave to appeal granted. (2) Appeal upheld. (3) The aggregate sentence imposed in the District Court is quashed and in lieu thereof: (a) For the offence of stealing a motor vehicle, the applicant is sentenced to a fixed term of 12 months imprisonment commencing on 23 May 2018 and expiring on 22 May 2019. (b) For the offence of aggravated break, enter and steal, the applicant is sentenced to a non-parole period of 2 years and 3 months commencing on 23 November 2018 and expiring on 22 February 2021 with a balance of term of 1 year and 1 month commencing 23 February 2021 and expiring 22 March 2022. (4) The applicant will be eligible for release to parole at the expiration of the non-parole period for the aggravated break enter and steal offence. Catchwords: CRIMINAL LAW – sentencing – aggravated break enter and steal – stealing a motor vehicle – aggregate sentence – error asserted in assessment of objective gravity of stealing of motor vehicle – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 154F Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2), 44, 53A(2), 54A Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: Abbas & Others v R [2013] NSWCCA [2013] NSWCCA 115; 231 A Crim R 413 Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Beale v R [2015] NSWCCA 120 Burnett v R [2011] NSWCCA 276 Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Carroll v The Queen [2009] HCA 13; 254 ALR 379 Davison v R [2019] NSWCCA 179 JM v R [2014] NSWCCA 297 Mulato v R [2006] NSWCCA 282 Regina v Scott [2005] NSWCCA 51 Category: Principal judgment Parties: Jarred Nicholls (Applicant) Regina (Respondent) Representation: Counsel: J Brock (Applicant) M Kumar (Respondent)