R v Nicholson

Case [2021] NSWDC 614


District Court


New South Wales

Medium Neutral Citation: R v Nicholson [2021] NSWDC 614
Hearing dates: 09 August 2021
Date of orders: 09 August 2021
Decision date: 09 August 2021
Jurisdiction:Criminal
Before: Bennett SC DCJ
Decision:

Matter adjourned pursuant to s 11(1)(b) & s11(1)(b2) Crimes (Sentencing Procedure) Act 1999 for further determination

Catchwords:

CRIME — Property offences — Larceny

SENTENCING — Adjournment for purpose of sentence

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Subjective considerations on sentence — Bail pending sentence

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

BugmyvR [2013] HCA 37

Imbornone v R [2017] NSWCCA 144

Markarianv R [2005] HCA 25

Muldrock v R [2011] HCA 39

R v Henry [1999] NSWCCA 111

R v Qutami [2001] NSWCCA 353

Tepaniav R [2018] NSWCCA 247

The Queen v Osenkowski (1982) 5 A Crim R 394

Category:Principal judgment
Parties: Regina (Crown)
Kelly Marie Nicholson (offender)
Representation:

Amarande Chauvet (Crown)
Maree Flynn (solicitor for the offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (offender)
File Number(s): 2020/00222304

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

  1. Kelly Marie Nicholson appears before Court today by that name charged with an offence contrary to s 112(2) Crimes Act 1900 expressed in the following terms:

“On 29 July 2020 in Potts Point in the State of New South Wales did break and enter the restaurant workplace of Federico Van Kooten Losio situated at 155 Victoria Street, Potts Point and then in the said restaurant workplace did commit a serious indictable offence, namely larceny in circumstances of aggravation, namely she knew that there were persons present within the said restaurant workplace.”

GUILTY PLEA

  1. She pleaded guilty to the offence in the Local Court and is therefore entitled to a discount in accordance with the legislation which now provides for the management of committal proceedings for sentence; I refer to s 25D(3)(a) Crimes (Sentencing Procedure) Act 1999.

MAXIMUM PENALTY

  1. The maximum penalty specified for this offence is imprisonment for 20 years. There is a standard non-parole period specified for the purposes of Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999; the period specified is five years.

FORM ONE

  1. The offender confirmed that she pleaded guilty in the Local Court and adheres to her plea of guilty in this Court. The offender asks that when I determine sentence upon this matter that I take into account two additional offences both contrary to s 192E(1)(b) Crimes Act 1900.

  2. They are expressed in the following terms; that she:

“On 29 July 2020 at Potts Point in the State of New South Wales did by deception, that is by use of stolen debit card dishonestly obtain a financial advantage, namely obtain $95 worth of goods from TSG Kings Cross.”

  1. That is…

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AGLC
R v Nicholson [2021] NSWDC 614
Case
[2021] NSWDC 614
Decision Date

CaseChat Overview and Summary

The case of R v Nicholson involved an appeal against sentence by the defendant, Nicholson, who was found guilty of larceny. The matter was heard in the NSW District Court, where the prosecution sought an adjournment for sentencing to enable the court to consider various factors relevant to the case. Nicholson, who had been on bail pending sentence, was accused of committing an offence under the Crimes Act 1900. The legal issues before the court included the circumstances surrounding the offence, the relevance of Form 1 offences, and subjective considerations such as Nicholson’s status of being on bail.

The court had to weigh the nature and gravity of the offence against Nicholson’s background and circumstances. The prosecution argued that the offence warranted a custodial sentence due to its seriousness, while the defence urged the court to consider mitigating factors and Nicholson's conduct while on bail. The court considered the aggravating and mitigating factors, including the impact of the offence on the victim and Nicholson’s history of criminal conduct. Given the need to gather further information and ensure a comprehensive sentencing process, the court determined that an adjournment was necessary.

After careful consideration of the arguments and evidence presented, the court decided to adjourn the matter under sections 11(1)(b) and 11(1)(b2) of the Crimes (Sentencing Procedure) Act 1999. This decision allowed for further investigation into Nicholson’s background and circumstances, ensuring a more informed and fair sentencing outcome. The adjournment aimed to provide the court with a complete picture of the case, enabling a sentence that appropriately reflected the nature of the offence and Nicholson's individual circumstances. The matter was set to be reconsidered at a later date.

Orders

Orders of the court

Matter adjourned pursuant to s 11(1)(b) & s11(1)(b2) Crimes (Sentencing Procedure) Act 1999 for further determination

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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