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Court of Criminal Appeal 7 August 2024

Nicholas v R

[2024] NSWCCA 144

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Nicholas v R [2024] NSWCCA 144
Court: Court of Criminal Appeal, NSW
Date: 7 August 2024
Judge(s): Adamson JA, Stern JA, Faulkner J (all agreeing)

Background

The applicant was convicted after a 13-day trial of 16 child sexual abuse offences against three children between 2014 and 2020. Two of the victims were the daughters of his partner, who were as young as five years old when the abuse began. The third victim was a friend of the daughters, aged 11 at the time of a single offence. The abuse typically occurred at the family home when the children's mother left them in the applicant's care.

On 17 March 2023, Hock DCJ in the District Court sentenced the applicant to an aggregate term of 28 years' imprisonment with a non-parole period of 19 years, commencing 21 May 2020. The applicant sought leave to appeal against that sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

  • Whether the sentencing judge erred in finding that counts 11 and 12 were aggravated on the basis that they were committed while the applicant was subject to conditional liberty, where that finding rested on a concession made by the applicant at the sentencing hearing
  • Whether the aggregate sentence of 28 years was manifestly excessive

Decision

Ground 1: Conditional liberty concession

At the sentencing hearing, the applicant's counsel conceded that the applicant was subject to conditional liberty at the time of the offences relevant to counts 11 and 12, which caused the sentencing judge to treat those offences as aggravated. On appeal, the applicant sought to withdraw from that concession. The Court of Criminal Appeal held that the sentencing judge had correctly proceeded on the basis of the concession made, and the applicant was not entitled to resile from it on appeal. No error was established.

Ground 2: Manifest excess

The applicant argued the sentence was manifestly excessive and relied on sentencing statistics and comparisons with seven other decided cases. The Court noted established principles: consistency in sentencing requires consistency in the application of legal principles, not numerical equivalence; other decided cases provide a yardstick but do not mark the outer limits of the sentencing discretion; and statistical tables are of limited utility because they do not explain why a particular sentence was fixed. Applying those principles, the Court concluded that a comparison with the cases selected by the applicant did not demonstrate that the sentence was unreasonable or plainly unjust.

The appeal was dismissed in full.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A concession made by an applicant's counsel at a sentencing hearing can bind the applicant on appeal; the Court of Criminal Appeal confirmed that an applicant will not ordinarily be permitted to resile from such a concession to mount a new ground of appeal.
  • Consistency in sentencing does not require numerical equivalence across cases. What matters is the consistent application of sentencing principles, not matching sentence lengths.
  • Sentencing statistics and numerical comparisons with other decided cases are of limited utility. They serve only as a yardstick and do not define the outer boundaries of the permissible sentencing discretion.
  • In dismissing the manifest excess ground, the Court applied the principle that an applicant must demonstrate the sentence is unreasonable or plainly unjust, a threshold the applicant here did not meet.
  • An aggregate sentence of 28 years with a 19-year non-parole period for 16 child sexual abuse offences spanning six years, involving three victims, was upheld as not manifestly excessive.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)
- Crimes Act 1900 (NSW) ss 61M(2), 61O(2), 66A(1), 66DA(a), 66DB(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- BH v R [2023] NSWCCA 278
- BR v R [2021] NSWCCA 279
- Culbert v R [2021] NSWCCA 38
- DH v R [2022] NSWCCA 200
- DPP (NSW) v TH [2023] NSWCCA 81
- DR v R [2022] NSWCCA 151
- Franklin v R [2016] NSWCCA 319
- Gibbons (Pseudonym) v R [2019] NSWCCA 150
- MLP v R [2014] NSWCCA 183
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Ryan v R [2019] NSWCCA 200
- SB v R [2022] NSWCCA 164
- SL v R [2015] NSWCCA 30; (2015) 249 A Crim R 295
- Stocco v R [2018] NSWCCA 77
- Young (a pseudonym) v R [2021] NSWCCA 163
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460