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R v Nicholson

R v Nicholson

Case [2018] NSWDC 347 22 November 2018

Purposes of Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nicholson [2018] NSWDC 347
Hearing dates: 03 August 2018; 31 August 2018; 29 October 2018
Date of orders: 22 November 2018
Decision date: 22 November 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1. The Offender is convicted.
2. The Offender is to be sentenced to an aggregate sentence comprising of:
a. A non-parole period of 2 years and 9 months to date from 19 February 2018 and to expire on 18 November 2020; and
b. An additional term of imprisonment of 2 years from 19 November 2020 to 18 November 2022, during which the offender shall be eligible to be released on parole.
3. The aggregate sentence in total is 4 years and 9 months.
4. Subject to the decision of the State Parole Authority the earliest release date is 18 November 2020.

Catchwords:
SENTENCING – Aggravating factors – Abuse of position of trust or authority in relation to the victim

SENTENCING – Aggravating factors – Home of victim or any other person

SENTENCING – Mitigating factors – Rehabilitation

SENTENCING – Mitigating factors – Remorse

SENTENCING – Relevant factors on sentence – Purposes of sentencing
SENTENCING – Sentencing procedure – Instinctive Synthesis – Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA, 44
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Interpretation Act 1987 (NSW) s 30
Probation and Parole Act 1983 (NSW)
Probation and Parole (Serious Offenders) Amendment Act 1987 (NSW) s 20A
Cases Cited: AJB v R [2007] NSWCCA 51
Baines v R [2016] NSWCCA 132
Denham v The Queen [2016] NSWCCA 309
Georgopoulos v R [2010] NSWCCA 246
Imbornone v R [2017] NSWCCA 144
K and S Lake City Freighters Pty Ltd v Gordon and Gotch (1985) 157 CLR 309
MC v R [2017] NSWCCA 316
MPB v R [2013] NSWCCA 213
Mottram v R [2009] NSWCCA 210
PWB v R [2011] NSWCCA 84
R v PGM (2008) 187 A Crim R 152
R v Borkowski [2009] NSWCCA 102
R v Forbes [2016] EWCA Crim 1388
R v MJR [2002] NSWCCA 129
R v Thompson; R v Holton [2000] 49 NSWLR 383
R v Woods (2009) 195 A Crim R 173
Saddler v R (2009) 194 A Crim R 452
Simpson v R [2012] NSWCCA 246
X7 v Australian Crime Commission (2013) 248 CLR 92
Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th Edition, Lexis Nexus Butterworths, 2014)
Category: Sentence
Parties: Regina (Crown)
Bruce Frederick Nicholson (Offender)
Representation:
Counsel:

Mr S Boland (Offender)
Mr R Steward (Crown)

Solicitors:
Streeton Criminal Lawyers
Director of Public Prosecutions

File Number(s): 15/199327
Publication restriction: N/A

Remarks on Sentence

The Victim was born on 29 May 1983. The Offender was born on 20 May 1948. In 1983, the Victim immigrated from Corsica as an infant with her parents, her brother, who was aged 6 at the time, and a 17…

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 [2018] NSWDC 347
Case: [2018] NSWDC 347
Decision Date: 22 November 2018

CaseChat Overview and Summary

The case of R v Nicholson was heard in the NSW Supreme Court. The offender was convicted of offences involving the sexual abuse of a child. The primary legal issues before the court were the identification of aggravating and mitigating factors in the sentencing process, and the application of the relevant statutory framework. The court had to consider the nature of the offence, the offender's position of trust, the impact on the victim, and the potential for rehabilitation and remorse.

In determining the appropriate sentence, the court identified several aggravating factors, including the abuse of a position of trust and the fact that the offence occurred in the victim's home. These factors were significant in establishing the severity of the offender's actions. The court also considered mitigating factors, such as the offender's expressed remorse and potential for rehabilitation. The court applied the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) to weigh these factors in accordance with the purposes of sentencing. The overarching aim was to ensure justice for the victim, deter the offender and others, and promote the rehabilitation of the offender.

The court conducted an instinctive synthesis of all the factors, concluding that the sentence should reflect the gravity of the crimes committed while also providing an opportunity for the offender's rehabilitation. The aggregate sentence of 4 years and 9 months was determined to be appropriate, balancing the need for punishment with the possibility of reform. The non-parole period of 2 years and 9 months was set to ensure that the offender serves a significant period of time before being considered for parole, while the additional term of imprisonment allows for continued supervision and rehabilitation efforts.

The final orders of the court mandated the conviction of the offender, set the aggregate sentence, and outlined the conditions for parole eligibility. The earliest possible release date was determined to be 18 November 2020, subject to the State Parole Authority's decision.

Orders

Orders of the court

1. The Offender is convicted.

2. The Offender is to be sentenced to an aggregate sentence comprising of:

a. A non-parole period of 2 years and 9 months to date from 19 February 2018 and to expire on 18 November 2020; and

b. An additional term of imprisonment of 2 years from 19 November 2020 to 18 November 2022, during which the offender shall be eligible to be released on parole.

3. The aggregate sentence in total is 4 years and 9 months.

4. Subject to the decision of the State Parole Authority the earliest release date is 18 November 2020.

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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Citations

AGLC Citation

R v Nicholson [2018] NSWDC 347

Most Recent Citation

R v Curran [2019] NSWDC 460

Cases citing this decision · 1 of 1 shown

R v Curran
[2019] NSWDC 460 Para 27

…A similar argument was rejected by Hatzistergos DCJ in R v Nicholson [2018] NSWDC 347. However the argument in that case did not expressly refer to the decision of the New South Wales Court of Criminal Appeal in Lodhi v R and the specific presumption against retrospectivity for extant proceedings.…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

MC v R
[2017] NSWCCA 316

…SWCCA 246 Imbornone v R [2017] NSWCCA 144 K and S Lake City Freighters Pty Ltd v Gordon and Gotch (1985) 157 CLR 309 MC v R [2017] NSWCCA 316 MPB v R [2013] NSWCCA 213 Mottram v R [2009] NSWCCA 210 PWB v R [2011] NSWCCA 84 R v PGM (2008) 187 A Crim R 152 R v Borkowski [2009] NSWCCA 102 R v Forbes [2016] EWCA Crim 13…
Imbornone v R
[2017] NSWCCA 144 Para 55

…ed statements[26] the evidence as a whole satisfies me that remorse is established for the purposes of s 23A(3)(i) of the 1999 Act. 26. Imbornone v R [2017] NSWCCA 144.…
Denham v R
[2016] NSWCCA 309 Para 87

…cepted that the imposition of non-parole period comprising between 35% and 50% of the head sentence tended to be imposed. [42] 42. Denham v The Queen [2016] NSWCCA 309; MPB v R [2013] NSWCCA 213; Mottram v R [2009] NSWCCA 210, [41]-[42]; AJB v R [2007] NSWCCA 51, [39]; PWB v R [2011] NSWCCA 84, [64].…
Baines v R
[2016] NSWCCA 132 Para 91

…is to be sentenced on the basis only of the offences before the Court, although they are not mitigated as being isolated events. [43] 43. Baines v R [2016] NSWCCA 132, [5]-[7] (Basten JA with whom Rothman J and Fagan J agreed).…
MPB v R
[2013] NSWCCA 213 Para 87

…of non-parole period comprising between 35% and 50% of the head sentence tended to be imposed. [42] 42. Denham v The Queen [2016] NSWCCA 309; MPB v R [2013] NSWCCA 213; Mottram v R [2009] NSWCCA 210, [41]-[42]; AJB v R [2007] NSWCCA 51, [39]; PWB v R [2011] NSWCCA 84, [64].…
X7 v Australian Crime Commission
[2013] HCA 29

…(2009) 195 A Crim R 173 Saddler v R (2009) 194 A Crim R 452 Simpson v R [2012] NSWCCA 246 X7 v Australian Crime Commission (2013) 248 CLR 92 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th Edition, Lexis Nexus Butterworths, 2014) Category: Sentence Parties: Regina (Crown) Bruce Fred…
Simpson v The Queen
[2012] NSWCCA 246

…Thompson; R v Holton [2000] 49 NSWLR 383 R v Woods (2009) 195 A Crim R 173 Saddler v R (2009) 194 A Crim R 452 Simpson v R [2012] NSWCCA 246 X7 v Australian Crime Commission (2013) 248 CLR 92 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th Edition, Lexis Nexus Butterworths, 2014) Ca…
PWB v R
[2011] NSWCCA 84 Para 70

…entence proceedings. This was said to mean the sentencing practices current at the time of the offending. [33] 33. R v MJR [2002] NSWCCA 129; PWB v R [2011] NSWCCA 84.…
Georgopolous v R
[2010] NSWCCA 246 Para 26

…onsideration as to where each offence falls. 9. Saddler v R (2009) 194 A Crim R 452, [3]; and R v Woods (2009) 195 A Crim R 173. 10. Georgopoulos v R [2010] NSWCCA 246, [30]-[32]. See s 54A of the 1999 Act.…
Mottram v R
[2009] NSWCCA 210 Para 87

…between 35% and 50% of the head sentence tended to be imposed. [42] 42. Denham v The Queen [2016] NSWCCA 309; MPB v R [2013] NSWCCA 213; Mottram v R [2009] NSWCCA 210, [41]-[42]; AJB v R [2007] NSWCCA 51, [39]; PWB v R [2011] NSWCCA 84, [64].…
R v Robert Borkowski
[2009] NSWCCA 102 Para 42

…ciples in R v Thompson; R v Holton [17] and R v Borkowski . [18] I accept that this is so and I will proceed accordingly 17. [2000] 49 NSWLR 383. 18. [2009] NSWCCA 102. See also s 21(3)(k) and 22A of the 1999 Act.…
AJB v R
[2007] NSWCCA 51 Para 87

…nce tended to be imposed. [42] 42. Denham v The Queen [2016] NSWCCA 309; MPB v R [2013] NSWCCA 213; Mottram v R [2009] NSWCCA 210, [41]-[42]; AJB v R [2007] NSWCCA 51, [39]; PWB v R [2011] NSWCCA 84, [64].…
R v MJR
[2002] NSWCCA 129 Para 70

…ng law in relation to the sentence proceedings. This was said to mean the sentencing practices current at the time of the offending. [33] 33. R v MJR [2002] NSWCCA 129; PWB v R [2011] NSWCCA 84.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 42

…ance with the principles in R v Thompson; R v Holton [17] and R v Borkowski . [18] I accept that this is so and I will proceed accordingly 17. [2000] 49 NSWLR 383. 18. [2009] NSWCCA 102. See also s 21(3)(k) and 22A of the 1999 Act.…
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
[1985] HCA 48 Para 72

…such that there would be no basis for s 30 of the Interpretation Act 1987 (NSW) to apply. 36. K and S Lake City Freighters Pty Ltd v Gordon and Gotch [1985] HCA 48; (1985) 157 CLR 309, 315 (Mason J).…
Whitfeld Nominal v McQuade
[1908] HCA 83 Para 68

…n Crime Commission [2013] HCA 29; 248 CLR 92, [96] (Hayne and Bell JJ citing approval of the principle stated by O’Connor J in Potter v Minahan [1908] HCA 83; 7 CLR 277, 304: “It is in the improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system o…
Potter v Minahan
[1908] HCA 63 Para 68

…ion [2013] HCA 29; 248 CLR 92, [96] (Hayne and Bell JJ citing approval of the principle stated by O’Connor J in Potter v Minahan [1908] HCA 83; 7 CLR 277, 304: “It is in the improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, with…

Legislation cited in this decision · 10

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 25AA, 44 4 mentions (from Para 8)
Interpretation Act 1987 (NSW)
30 2 mentions (from Para 66)
Probation and Parole (Serious Offenders) Amendment Act 1987 (NSW)
20A 2 mentions (from Para 88)
Barclay v Linnane
1 mention
Crimes Act 1900 (ACT)
1 mention
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
1 mention (from Para 71)
Hayes v Federal Commissioner of Taxation
1 mention
Probation and Parole Act 1983 (NSW)
1 mention
Sexual Offences Act 1956 c.69
1 mention
Sexual Offences Act 2003 (c. 42)
1 mention

Medium Neutral Citation:	R v Nicholson [2018] NSWDC 347
Hearing dates:	03 August 2018; 31 August 2018; 29 October 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1. The Offender is convicted. 2. The Offender is to be sentenced to an aggregate sentence comprising of: a. A non-parole period of 2 years and 9 months to date from 19 February 2018 and to expire on 18 November 2020; and b. An additional term of imprisonment of 2 years from 19 November 2020 to 18 November 2022, during which the offender shall be eligible to be released on parole. 3. The aggregate sentence in total is 4 years and 9 months. 4. Subject to the decision of the State Parole Authority the earliest release date is 18 November 2020.
Catchwords:	SENTENCING – Aggravating factors – Abuse of position of trust or authority in relation to the victim SENTENCING – Aggravating factors – Home of victim or any other person SENTENCING – Mitigating factors – Rehabilitation SENTENCING – Mitigating factors – Remorse SENTENCING – Relevant factors on sentence – Purposes of sentencing SENTENCING – Sentencing procedure – Instinctive Synthesis – Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA, 44 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Interpretation Act 1987 (NSW) s 30 Probation and Parole Act 1983 (NSW) Probation and Parole (Serious Offenders) Amendment Act 1987 (NSW) s 20A
Cases Cited:	AJB v R [2007] NSWCCA 51 Baines v R [2016] NSWCCA 132 Denham v The Queen [2016] NSWCCA 309 Georgopoulos v R [2010] NSWCCA 246 Imbornone v R [2017] NSWCCA 144 K and S Lake City Freighters Pty Ltd v Gordon and Gotch (1985) 157 CLR 309 MC v R [2017] NSWCCA 316 MPB v R [2013] NSWCCA 213 Mottram v R [2009] NSWCCA 210 PWB v R [2011] NSWCCA 84 R v PGM (2008) 187 A Crim R 152 R v Borkowski [2009] NSWCCA 102 R v Forbes [2016] EWCA Crim 1388 R v MJR [2002] NSWCCA 129 R v Thompson; R v Holton [2000] 49 NSWLR 383 R v Woods (2009) 195 A Crim R 173 Saddler v R (2009) 194 A Crim R 452 Simpson v R [2012] NSWCCA 246 X7 v Australian Crime Commission (2013) 248 CLR 92
Texts Cited:	DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th Edition, Lexis Nexus Butterworths, 2014)
Category:	Sentence
Parties:	Regina (Crown) Bruce Frederick Nicholson (Offender)
Representation:	Counsel: Mr S Boland (Offender) Mr R Steward (Crown) Solicitors: Streeton Criminal Lawyers Director of Public Prosecutions
File Number(s):	15/199327
Publication restriction:	N/A