Nicholas v The King

Case [2024] NSWCCA 144


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nicholas v R [2024] NSWCCA 144
Hearing dates: 28 June 2024
Date of orders: 07 August 2024
Decision date: 07 August 2024
Before: Adamson JA at [1]
Stern JA at [2]
Faulkner J at [3]
Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – child sexual assault against multiple victims – trial judge sentenced on the basis of a concession – whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M(2), 61O(2), 66A(1), 66DA(a), 66DB(a)

Criminal Appeal Act 1912 (NSW) s 5(1)(c)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s14(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A

Cases Cited:

BH v R [2023] NSWCCA 278

BR v R [2021] NSWCCA 279

Culbert v R [2021] NSWCCA 38

DH v R [2022] NSWCCA 200

DPP(NSW) v TH [2023] NSWCCA 81

DR v R [2022] NSWCCA 151

Franklin v R [2016] NSWCCA 319

Gibbons (Pseudonym) v R [2019] NSWCCA 150

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MLP v R [2014] NSWCCA 183

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Ryan v R [2019] NSWCCA 200

SB v R [2022] NSWCCA 164

SL v R [2015] NSWCCA 30; (2015) 249 A Crim R 295

Stocco v R [2018] NSWCCA 77

Young (a pseudonym) v R [2021] NSWCCA 163

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:Principal judgment
Parties: Mitchell Nicholas (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Fraser (Applicant)
J Roy (Respondent)

Solicitors:
Marsden Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/151556
Publication restriction: Publication of names or any other information or material that may lead to the identification of the complainants, the applicant’s sister and EM’s brother is prohibited pursuant to Crimes Act 1900 (NSW), s 578A and Children (Criminal Proceedings) Act 1987 (NSW), s 15A
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Crime
Date of Decision:
17 March 2023
Before:
Hock DCJ
File Number(s):
2020/151556


HEADNOTE

The Applicant, Mitchell Nicholas, was found guilty on 16 counts of child sexual abuse offences against KW and TW, the daughters of his partner and a friend of his daughters, EM, following a trial in the District Court of New South Wales. On 17 March 2023 her Honour Hock DCJ (the sentencing judge) sentenced the Applicant to an aggregate sentence of 28 years, with a non-parole period (NPP) of 19 years, commencing on 21 May 2020.

The Applicant sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by the sentencing judge.

The principal issues on appeal were:

  1. Whether the sentencing judge erred in determining counts 11 and 12 were aggravated because they occurred when the Applicant was subject to conditional liberty; and

  2. Whether the sentence was manifestly excessive.

The Court held (per Faulkner…

Continue reading Nicholas v The King

Sign in free to access the full text

Details
AGLC
Nicholas v The King [2024] NSWCCA 144
Case
[2024] NSWCCA 144
Decision Date

CaseChat Overview and Summary

The case of Nicholas v The King involved the appellant, Nicholas, who had been convicted of multiple counts of child sexual assault. The appeal was brought against the sentence imposed by the trial judge. The central issue before the court was whether the sentence imposed was manifestly excessive given the circumstances of the case. The court was tasked with assessing the trial judge's reasoning and the overall fairness and proportionality of the sentence.

The court began by examining the nature and severity of the crimes committed by the appellant, which involved significant breaches of trust and caused severe harm to multiple young victims. The trial judge had sentenced the appellant based on a concession made by the defence, which was a critical factor in the determination of the sentence. The court had to consider whether this concession appropriately reflected the gravity of the crimes and whether the sentence was justified in light of the harm caused. The court also needed to assess whether the trial judge's decision to rely on the concession was consistent with sentencing principles and whether the sentence was proportionate to the severity of the offences.

In its reasoning, the court noted that while the crimes were of a grave nature, the sentence imposed by the trial judge was within the range of penalties that could be considered appropriate. The court found that the trial judge had appropriately taken into account the factors relevant to sentencing, including the harm caused to the victims and the appellant's concession. The court concluded that the sentence was not manifestly excessive and upheld the trial judge's decision. The court found that the sentence reflected a balanced consideration of the circumstances and was proportionate to the severity of the crimes committed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was upheld. The appellant's conviction and sentence remained in place as determined by the trial court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.