Nelson v R
27 November 2000 - Riley J

The applicant pleaded guilty on an ex officio indictment to one count of unlawfully causing grievous harm and one count of assault with circumstances of aggravation. The victim in each count was different. The assaults were committed a month apart.

On the evening of 30 November 1999 the applicant came home to his wife of 13 years after a day of drinking and an argument began about the applicant's drinking habits. The applicant became increasingly angry, pushed his wife over, dragged her from the lounge room to the kitchen and poured a half-full kettle of recently boiled water over the victim. He then stabbed her three times with a steak knife. The burns were particularly serious and the victim was still receiving regular medical attention at the time of sentence.

On the evening of 31 December 1999 the applicant was drinking in the grounds of Alice Springs High School with a small group of people including his mother. The applicant requested that his mother give him money for alcohol and she refused. He then ripped a branch off a nearby tree about one metre long and one and a 25 centimetres thick and hit his mother over the head, twice to her face, once to her mouth and once to her left eye. He then punched her in the eye. His mother gave him money to stop hurting her. The victim suffered bruising and lacerations to the eye and mouth.

The applicant was sentenced to three years and six months imprisonment on the charge of causing grievous harm and to 20 months imprisonment on the charge of assault. The sentencing judge stated that although the two sentences should be served cumulatively because they were quite separate offences on different dates involving different victims, the sentences would be made concurrent as to eight months to take account of the totality principle.

The total effective head sentence imposed was four years and six months.

Section 53(1) of the Sentencing Act requires a court sentencing an offender for 12 months or longer (provided the sentence is not suspended in whole or in part), to fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence, the past history of the offender or the circumstances of the particular case make the fixing of such a period inappropriate. The sentencing judge declined to fix a non parole period because the applicant had an extensive history of offending, the attacks were cowardly and serious attacks upon Aboriginal women, the applicant appeared to have little or no prospect of rehabilitation and the applicant had previously breached a suspended sentence imposed for aggravated assault.

The applicant applied for leave to appeal on the grounds that:

1. the sentence is manifestly excessive taken as a whole in all the circumstances and of the applicant

2. the learned sentencing judge erred in failing to set a non-parole period

3. the learned sentencing judge erred in failing to give due weight to the totality principle by not making the sentence for assault wholly or substantially concurrent with the sentence for causing grievous harm.

The application for leave to appeal was considered by a single judge exercising the powers of the Court of Criminal Appeal pursuant to rule 86.14 of the Supreme Court Rules. The application was determined on written arguments in the absence of the parties. On 27 November 2000 Riley J refused the applicant leave to appeal.