Nolan v R [2024] NSWCCA 140

Nolan v R [2024] NSWCCA 140

Ground 1 was established because the sentencing judge mistakenly treated the Bourke act of rubbing the outside of the complainant's vagina as digital penetration and therefore as an act carrying a 20-year maximum penalty rather than an indecent assault carrying a 10-year maximum penalty. That error affected the sentencing discretion, requiring the sentence to be quashed and the applicant resentenced. On resentencing, the Court assessed the offence as very serious and imposed 16 years imprisonment with a non-parole period of 11 years and 8 months.

Jurisdiction
Australia
Judgment Date
29 July 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced
Outcome
Extension of time granted, leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant resentenced.
Legal Topics
['persistent Sexual Abuse of a Child' 'unlawful Sexual Relationship With a Child' 'appeal Against Sentence' 'mistake as to Facts and Maximum Penalty' 'particularisation of Unlawful Sexual Acts']
['criminal Law' 'sentencing' 'criminal Appeals'] ['persistent Sexual Abuse of a Child' 'unlawful Sexual Relationship With a Child' 'appeal Against Sentence' 'mistake as to Facts and Maximum Penalty' 'particularisation of Unlawful Sexual Acts']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ["Whether the sentencing judge erred by proceeding on the basis that one unlawful sexual act involved digital penetration and carried a maximum penalty of 20 years imprisonment, rather than indecent assault by rubbing the outside of the child's vagina carrying a maximum penalty of 10 years imprisonment." 'Whether it was open to the sentencing judge to take into account evidence of unlawful sexual acts in the caravan that were not particularised in the indictment.' 'Whether the applicant should be resentenced after the conceded sentencing error.']

Ratio Decidendi

Ground 1 was established because the sentencing judge mistakenly treated the Bourke act of rubbing the outside of the complainant's vagina as digital penetration and therefore as an act carrying a 20-year maximum penalty rather than an indecent assault carrying a 10-year maximum penalty. That error affected the sentencing discretion, requiring the sentence to be quashed and the applicant resentenced. On resentencing, the Court assessed the offence as very serious and imposed 16 years imprisonment with a non-parole period of 11 years and 8 months.

Court Disposition

Extension of time granted, leave to appeal granted, appeal allowed, District Court sentence quashed, and applicant resentenced.

Orders

  • ['Extend the time for the filing of a notice to appeal.' 'Grant leave to appeal.' 'Allow the appeal.' 'Quash the aggregate sentence imposed in the District Court. In lieu thereof, sentence the applicant to 16 years imprisonment, with a non-parole period of 11 years 8 months, commencing on 10 July 2022, the...