R v Nicholson [2018] NSWDC 347

R v Nicholson [2018] NSWDC 347

Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied because sentence was imposed after the provision commenced, requiring use of sentencing patterns and practices at the time of sentencing and the contemporary understanding of trauma caused by child sexual abuse, while still having regard to the maximum penalties applicable at the time of the offending. Sequence 1 was assessed as within the mid-range of offending contemplated by the section, and Sequence 4 as below the mid-range but aggravated by occurrence in the victim's home and breach of a position of trust. Having regard to seriousness, general deterrence, denunciation, accountability, harm to the victim,...

Jurisdiction
Australia
Judgment Date
22 November 2018
Procedural Posture
Criminal Sentencing / Remarks on Sentence Following Plea of Guilty
Outcome
The offender was convicted and sentenced to an aggregate sentence of 4 years and 9 months imprisonment with a non-parole period of 2 years and 9 months.
Legal Topics
['child Sexual Offences' 'historical Offences' 'aggravating Factors' 'mitigating Factors' 'remorse' 'rehabilitation' 'aggregate Sentence' 'crimes (sentencing Procedure) Act 1999 (nsw) S 25 Aa']
['criminal Law' 'sentencing'] ['child Sexual Offences' 'historical Offences' 'aggravating Factors' 'mitigating Factors' 'remorse' 'rehabilitation' 'aggregate Sentence' 'crimes (sentencing Procedure) Act 1999 (nsw) S 25 Aa']

Case Brief

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Procedural Posture

Criminal Sentencing / Remarks on Sentence Following Plea of Guilty

Legal Issues

  1. 1 ['Assessment of the objective seriousness of Sequence 1 assault committing act of indecency and Sequence 4 sexual intercourse without consent with a person under 10.' "Whether aggravating factors included offending in the victim's home and breach of a position of trust." 'Whether mitigating factors included absence of prior criminal history, prior good character, remorse, low risk of reoffending and good prospects of rehabilitation.' 'Whether s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to require sentencing in accordance with sentencing patterns and practices at the time of sentencing.' 'Whether special circumstances justified altering the statutory ratio between the non-parole period and balance of term.' 'What aggregate sentence should be imposed having regard to totality.']

Ratio Decidendi

Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied because sentence was imposed after the provision commenced, requiring use of sentencing patterns and practices at the time of sentencing and the contemporary understanding of trauma caused by child sexual abuse, while still having regard to the maximum penalties applicable at the time of the offending. Sequence 1 was assessed as within the mid-range of offending contemplated by the section, and Sequence 4 as below the mid-range but aggravated by occurrence in the victim's home and breach of a position of trust. Having regard to seriousness, general deterrence, denunciation, accountability, harm to the victim,...

Court Disposition

The offender was convicted and sentenced to an aggregate sentence of 4 years and 9 months imprisonment with a non-parole period of 2 years and 9 months.

Orders

  • ['The Offender is convicted.' 'The Offender is to be sentenced to an aggregate sentence comprising a non-parole period of 2 years and 9 months to date from 19 February 2018 and to expire on 18 November 2020.' 'The Offender is to be sentenced to an additional term of imprisonment of 2 years from 19 November 2020 to...