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R v Nicholson

R v Nicholson

Case [2021] NSWDC 614 9 August 2021

Crime

Sentencing

Bail

Circumstances of offence

Criminal Law

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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

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

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

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

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.
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.”

That is…

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 R v Nicholson

Details

AGLC: R v Nicholson [2021] NSWDC 614
Case: [2021] NSWDC 614
Decision Date: 09 August 2021

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Nicholson [2021] NSWDC 614

Most Recent Citation

R v De Silva [2007] QCA 301

Cases Citing This Decision

R v Camelo-Gomez [2022] NSWSC 136
Citation 1 (Para 300)

…ed, and there have been instances where an accused person who faced an extreme example of the burden of the process was granted a permanent stay. See R v Nicholson (1998) 102 A Crim R 459 for example, where an accused person facing drugs charges was granted a stay because, over a five-year period, his trial had been li…
R v De Silva [2007] QCA 301
Citation 2 (Para 1)

…That suggested direction accords with the terms of the Code, with the common law as described elsewhere, and with suggested directions elsewhere. In R v Nicholson (1994) 76 A Crim R 187 Underwood J also referred to the judgment of Salmond J in Barker , and to the comments by Salmond J that: “An act done with intent to…
Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) [2002] SASC 128
Citation 3 (Para 1)

…not have had its genesis within the business if the user alternative is satisfied, though that is hardly a relevant consideration in this case. Cf R v Nicholson (1984) 12 A Crim R 231. It follows that we would reject the appellant’s submission that only the signed original from which D4 was ostensibly copied could be…
Regina v F.M.D. [2002] NSWCCA 14
Citation 4

…- Respondent LEGISLATION CITED: Crimes Act 1900 (NSW) CASES CITED: Jago v District Court (NSW) (1989) 168 CLR 23 Walton v Gardiner (1993) 177 CLR 378 Reg v Nicholson (1998) 102 A Crim R 459 House v The King (1936) 55 CLR 499 at 504 DECISION: Order of District Court affirmed.…
Southern Equities Corp Ltd (in liq) v Bond [2001] SASC 70
Citation 5 (Para 14)

…nt admitted under 45A rendered hearsay evidence admissible if contained in that document He relied upon a decision of the Court of Criminal Appeal in The Queen v Nicholson (1984) 113 LSJS 125 and in particular in the judgment of the Chief Justice (with whom Walters and Mohr JJ agreed) at 133 where His Honour said: “Statutory p…
Thomas v The Queen [1960] HCA 2
Citation 6

…6. There is another feature of the learned judge's charge to the jury which I think I should mention. A verdict of guilty of wilful murder could not properly be given unless the jury found that the appellant at the time of shooting Wedd intended to cause his death. The learned judge told the jury of…

See all citing cases →

Cases Cited

Tepania v The Queen [2018] NSWCCA 247
Citation 1 (Para 51)

…J more recently with regard to the assessment of objective gravity, including offences, for which there is a standard non-parole period: Tepania v R [2018] NSWCCA 247. The relevant part in the judgement appears at para [110] where his Honour summarised the standard non-parole provisions in their present form and sp…
Imbornone v R [2017] NSWCCA 144
Citation 2 (Para 62)

…ious of what was said by Smart AJ in R v Qutami [2001] NSWCCA 353 but also more recently by Wilson J in the Court of Criminal Appeal in Imbornone v R [2017] NSWCCA 144.…
Bugmy v The Queen [2013] HCA 37
Citation 3 (Para 52)

…His Honour made specific reference to Muldrock v R (ibid) and Bugmy v R [2013] HCA 37, in particular para [44] of the judgement of the Court where reference was made to ‘profound childhood deprivation’ the impact of which does not diminish with the passage of time and repeated offending.…
Muldrock v The Queen [2011] HCA 39
Citation 4 (Para 49)

…iod are set forth in Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999 in their present form after the decision of the High Court in Muldrock v R [2011] HCA 39.…
Markarian v The Queen [2005] HCA 25
Citation 5 (Para 50)

…to be considered with all of the objective and subjective material before me. The process is well established as discussed McHugh J in Markarian v R [2005] HCA 25.…
R v Osenkowski [2005] SASC 142
Citation 6 (Para 61)

…I agree that on the material I have there is to be applied the principles in The Queen v Osenkowski (1982) 5 A Crim R 394 and the judgement of Wood CJ at CL in R v Henry [1999] NSWCCA 111 at para [273] is also of application, I refer specifically to item (c) in that paragraph of his Honour's judgement.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 7 (Para 53)

…it appears to me that the impact will be marginal: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 .…
R v Qutami [2001] NSWCCA 353
Citation 8 (Para 62)

…representations under oath or affirmation, she has not been tested by cross-examination and I am conscious of what was said by Smart AJ in R v Qutami [2001] NSWCCA 353 but also more recently by Wilson J in the Court of Criminal Appeal in Imbornone v R [2017] NSWCCA 144.…
R v Henry [1999] NSWCCA 111
Citation 9 (Para 61)

…material I have there is to be applied the principles in The Queen v Osenkowski (1982) 5 A Crim R 394 and the judgement of Wood CJ at CL in R v Henry [1999] NSWCCA 111 at para [273] is also of application, I refer specifically to item (c) in that paragraph of his Honour's judgement.…

Legislation Cited

Bail Act 2013 (NSW)
1 mention (from Para 73)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

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