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Nicholas v The King

Nicholas v The King

Case [2024] NSWCCA 144 7 August 2024

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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:

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
Whether the sentence was manifestly excessive.

The Court held (per Faulkner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicholas v The King

Details

AGLC: Nicholas v The King [2024] NSWCCA 144
Case: [2024] NSWCCA 144
Decision Date: 07 August 2024

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