Andrew Nolch v The Queen
[2020] VSCA 195
•30 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0115
| ANDREW NOLCH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 July 2020 |
| DATE OF JUDGMENT: | 30 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 195 |
| JUDGMENT APPEALED FROM: | DPP v Nolch (Unreported, County Court of Victoria, Judge Pullen, 28 May 2020) |
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CRIMINAL LAW — Appeal — Sentence — Damaging property — Damage caused to murder victim’s public memorial — Applicant sentenced to 18 month community correction order (‘CCO’) for damaging property — Contravention proceedings for failure to comply with conditions of CCO — Applicant sentenced to five months’ imprisonment for original offence and 14 days’ imprisonment for contravention — Whether judge failed to take into account substantial compliance with CCO — Whether attitude of murdered victim’s father to applicant’s imprisonment fresh evidence — Whether sentence manifestly excessive — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Lowy | Flitner & Company Pty Ltd |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
Overview
The rape and murder of Eurydice Dixon in Princes Park, Carlton, on 13 June 2018, was the cause of considerable community anguish and grief.
As a result, an impromptu memorial was established on the sports oval at Princes Park close to where the crime had occurred. Many people left flowers and wreaths at the memorial site, which was featured in pieces by electronic and print media. Moreover, a vigil had been organised to be held at the memorial site on Monday, 18 June 2018, at 5.30 pm. The forthcoming vigil was widely publicised, including in social media.
At about 2.30 am on 18 June 2018, the applicant drove his vehicle to the site of the memorial. On grass directly in front of the memorial, the applicant painted a picture of a penis. The painted penis was 25 metres by five metres in dimension, and was depicted to be ejaculating directly onto the memorial. The applicant knew that he had no permission to enter the memorial site and paint a penis onto the grass.
The course of proceedings
On 10 September 2018, the applicant pleaded guilty in the Magistrates’ Court to one charge of damaging property.[1] The Magistrate, benevolently it might be said, released him on a community correction order (‘CCO’) of 18 months’ duration, with conditions that he perform 200 hours’ community work; that he be under the supervision of the Secretary; and that he undergo a men’s behaviour change or other offender behaviour programs as directed. The applicant was also ordered to pay $5,500.00 compensation to the Metropolitan Fire Brigade, and $14,055.89 to the City of Melbourne.
[1]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
For reasons that are by no means apparent, the applicant appealed the sentence imposed by the magistrate to the County Court. As suggested by the Court in argument, this was an act of sheer stupidity on his part.
On 13 March 2019, a judge of the County Court, exercising that Court’s appellate jurisdiction, by way of rehearing de novo, convicted and sentenced the applicant to a CCO of 18 months’ duration. In addition to the mandatory conditions, the applicant was directed to perform 200 hours of unpaid community work; to be supervised for 18 months; to undergo treatment and rehabilitation for offending behaviour programs as directed; and to undertake the men’s behaviour change program or other offender behaviour programs as directed. He was also ordered to pay $13,606.81 compensation to City of Melbourne Parks and Waterways. On any view, the applicant was fortunate to escape with such a lenient disposition.
Remarkably, the applicant did not abide by the conditions of the CCO imposed upon him in the County Court. As a result, by charge and summons dated 14 April 2020, Corrections initiated contravention proceedings in the County Court for alleged non-compliance with the CCO’s conditions. Particulars of the alleged contraventions were that the applicant had left the State of Victoria without permission on 15 September 2019 and 21 January 2020 (having travelled respectively to the Philippines and Thailand); that he had failed to perform unpaid community work as required on 6 April 2019, 23 April 2019, 3 May 2019, 25 September 2019 and 29 January 2020; and that he had failed to be supervised, monitored and managed as directed on 25 September 2019 and 2 October 2019.
On 28 May 2020, the applicant pleaded guilty to contravening the CCO. The judge ordered that the CCO be cancelled, and sentenced him to five months’ imprisonment on the initial charge of damaging property, and to 14 days’ imprisonment on the charge of contravening the CCO.[2] No cumulation was ordered, so that the total effective sentence imposed was five months’ imprisonment.
[2]Sentencing Act 1991, s 83AD(1). The maximum sentence is three months’ imprisonment.
By a notice dated 10 June 2020, in this Court the applicant seeks leave to appeal against the sentence[3] on three grounds, formulated as follows:
1. That [the sentencing judge] fell into specific error by failing to take into account the applicant’s substantial compliance with the [CCO] pursuant to section 83AS(2) Sentencing Act 1991, or by failing to give it sufficient weight.
2. That fresh evidence has come to light since sentencing by way of the impact of the offending upon Mr Jeremy Dixon, the father of Eurydice Dixon, and his views of the impact of the offending upon the legacy of Eurydice.
3. That the sentence was manifestly excessive.
[3]It is not disputed that the application is governed by s 278 of the Criminal Procedure Act 2009.
The contraventions of, and extent of compliance with, the CCO
A contravention report by Corrections, Exhibit A, included the following:
Supervision:
Mr Nolch attended Ringwood Community Correctional Service (CCS) within two working days of the Order commencing. The terms and conditions of the Order and the rules and regulations pertaining to the Order were outlined to him. Mr Nolch signed the relevant documentation indicating his understanding.
Mr Nolch attended supervision on 24 occasions. When attending, he was punctual and presented in a polite and appropriate manner. Mr Nolch appeared to actively engage within discussions specific to his highest criminogenic needs. However, Mr Nolch presented with eccentric views and theories that may be considered atypical from the general public and this could dominate conversations at times. Further, Mr Nolch presented with rigid thinking regarding his beliefs, however, appeared willing to engage in open discussions and responded appropriately when respectfully challenged.
The focus of supervision was to discuss the context of Mr Nolch’s offending, identify his high-risk situations, develop risk-management strategies, and review progress towards his goals. Further, Mr Nolch’s highest area of needs were targeted, namely pro-criminal attitude, family/martial and companions. This was due to Mr Nolch’s association with individuals who would not be considered pro-social. To facilitate such discussions, the Case Management Workbook Series were utilised, including the Personal Health and Wellbeing workbook and the Healthy Relationships workbook, which Mr Nolch appeared to actively participate in.
Following a period of consistent attendance towards community work and supervision, Mr Nolch incurred an absence on 25.09.2019. The following day a home visit was conducted, however Mr Nolch was not home. Mr Nolch remained uncontactable for a two-week period. Upon his re-engagement on 09.10.2019, Mr Nolch attributed this period to moving residence. This Service since confirmed Mr Nolch had travelled to the Philippines without permission during this time.
On 28.01.2020, Mr Nolch reported being unwell and not able to attend community work on the 29.01.2020. He was directed to obtain a medical certificate. On 12.02.2020, Mr Nolch provided this Service with a back-dated statutory declaration declaring that he was medically unfit to attend community work 29.01.2020. However, this Service since confirmed Mr Nolch had travelled to Thailand without permission on this date. It is noted, Mr Nolch’s provision of a false document was reported to the Victoria Police, however this Service were advised the Police would not proceed with an investigation or charges.
On 06.04.2020, this Service received information Mr Nolch travelled internationally, and without permission, on two occasions within the operational period on the Order. Mr Nolch left Victoria on 15.09.2019 and returned on 08.10.2019. He left Victoria again on 21.01.2020 and returned on 06.02.2020. On 08.04.2020, Mr Nolch was met with the Manager of Court Practice to receive a warning and was advised how his decision to travel resulted in contravention proceedings being initiated. Mr Nolch expressed his desire to continue the Order to completion.
Mr Nolch admitted to travelling internationally without permission. In relation to the first occasion, he reported to have already planned this trip prior to being sentenced to the Order and stated he was not aware of needing permission to travel. The second occasion, Mr Nolch reported that he knowingly contravened the term of the Order, stating it was a last-minute decision to travel and he chose not to request permission to travel as he believed he would not be granted approval.
On 16.04.2020, Mr Nolch was arrested and charged with Import Commercial Quantity – Border Controlled Drug (Psilocybin) – (Commonwealth) and Possess Drug of Dependence (Psilocybin) – (State). He appeared before the Melbourne Magistrates’ Court on 17.04.2020 and was remanded until 27.07.2020 to a committal hearing (Case number: L10925024).
It is also noted that on 16.04.2020, this Service received information Mr Nolch has further charges listed before the Heidelberg Magistrates’ Court on 18.05.2020, including allegedly driving whilst authorisation suspended with a commission date of 09.12.2019 (Case number: L10030893).
Treatment and rehabilitation:
Offending behaviour program/s as directed
Mr Nolch was found unsuitable for a Men’s Behaviour Change program as the service provider predominantly work with perpetrators of intimate partner violence. Therefore, this Service consulted with Forensicare to determine Mr Nolch’s suitability for the Problem Behaviour Program, however he was also deemed unsuitable due to his offending not being related to stalking or sexual offending.
Given the above, Mr Nolch was required to complete offence-specific treatment with a clinical psychologist on an individual basis. Mr Nolch was directed to obtain a mental health care plan (MHCP) from his General Practitioner (GP). Following a delay to him doing so, on 20.11.2019 Mr Nolch was provided a copy of a mental health assessment request letter to take to his GP. When exploring the delay to this condition, Mr Nolch reported his self-employed business was busy and impacting on his ability to begin engaging with a psychologist. Therefore, due to his regular attendance to supervision and community work, it was agreed to prioritise initiating this condition in January 2020.
On 17.02.2020, Mr Nolch obtained a MHCP and was referred to Dr Tory Bacon at Align Psychology. However, prior to arranging an appointment, Mr Nolch raised with this Service his concerns to engage with a psychologist due to his religious views. Mr Nolch practices Scientology, a religion that does not believe in psychology, however the religion does permit offending behaviour programs. Therefore, this Service acknowledged Mr Nolch’s religious views and worked with him to develop an agreed upon plan. Mr Nolch participated in developing a treatment plan outlining what he is and is not comfortable to discuss in treatment with a psychologist, with the focus to be specific to his offending behaviour.
When encouraged to schedule his first appointment with Dr Bacon, Mr Nolch reported his finances would be a barrier to engaging. Therefore, on 15.04.2020, Mr Nolch reported his intent to return to his GP for a varied referral to a bulk billing psychologist in his area. Overall, this condition remains outstanding.
Unpaid community work:
Mr Nolch was initially contracted to the Graffiti Removal program, however reported experiencing allergies whilst on the community work site. He provided medical documentation from his GP evidencing this and was subsequently placed on an in-house program, completing Men’s Book Art at Ringwood CCS.
Mr Nolch demonstrated positive behaviours within community work and appears to actively participate in his community work obligations.
In light of the current public health climate regarding the coronavirus (COVID-19), all community work was placed on hold in March 2020. Prior to Mr Nolch being remanded for alleged further offences, he had been approved to continue community work from home.
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Conclusion and Recommendations
Mr Nolch has contravened a core term of the current Order, whereby this Service received confirmation he travelled internationally without permission on two occasions within the operational period.
During the dates in which Mr Nolch travelled, he incurred four unacceptable absences towards supervision and community work and was dishonest about his reasoning for these absences, including on one occasion providing a false statutory declaration.
Not including the above, Mr Nolch’s compliance towards supervision and community work had been consistent, attending 24 supervision appointments and completing 153 hours of community work.
However, it is a significant concern Mr Nolch has allegedly further offended on two occasions within the operational period of the Order, suggesting a possible escalation in risk. He has been remanded until 27.07.2020 for a committal hearing (Case number: L10925024) and has driving offences listed on 18.05.2020 (Case number: L10030893). It is noted these offences are a deviation from the index offences.
Taking the above into consideration, including Mr Nolch’s reluctance to engage in offence-specific treatment, it appears the Order did not have the desired impact to address his offending behaviour. Therefore, it is respectfully recommended the Order be cancelled and Mr Nolch be resentenced on the index offences.
Ground 1: Substantial compliance with the CCO?
In support of the first ground, counsel for the applicant submitted that s 83AS(2) of the Sentencing Act 1991 requires a court dealing with contravention of a CCO to ‘take into account the extent to which the offender complied with the order’. Counsel submitted that, despite the admitted contraventions, the applicant had substantially complied with the CCO, including completing 173 hours of the 200 hours of community work ordered. It was submitted that it is apparent on the face of the sentence that the judge cannot have given sufficient weight to the requirement in s 83AS(2).
Counsel for the respondent submitted that there can be no doubt that the judge was aware of the requirement to take into account the applicant’s compliance with the CCO, having explicitly referred to that requirement during the contravention hearing. The respondent’s counsel contended that the judge found correctly that the applicant’s compliance, as it related to completion of community work, was to be balanced against compliance with the order as a whole. Non-compliance included travelling overseas without permission on no less than two occasions; failure to attend community work on five occasions; and failure to attend supervision on two occasions.
Moreover, so the respondent’s counsel submitted, the judge was required to sentence the applicant for the original offending as if he had just been convicted. The judge had observed of the original offence in the earlier appeal hearing that there was: significant planning; an attempt to create a false alibi; a lack of remorse at the time of the offending; and an absence of Verdins[4] considerations. She was also of the view that the planning, and the drawing of a penis in the manner adopted by the applicant, were aggravating circumstances of the offence.
[4]R v Verdins (2007) 16 VR 269.
We see nothing to indicate that the judge failed to have regard to the extent of the applicant’s compliance with the CCO. It was a matter distinctly adverted to during the contravention proceedings. That being so, this ground could only succeed if the sentence imposed demonstrated that, notwithstanding the fact that the judge said specifically that she took the applicant’s compliance into account, the sentence itself indicated that his compliance must not have been given sufficient weight. We will return to this topic when dealing with ground 3, but would flag at this point that there is nothing in the sentence itself that suggests to us that the applicant’s compliance with the CCO must have been undervalued.
The first ground is not reasonably arguable.
Ground 2: Fresh evidence?
In an affidavit affirmed on 9 June 2020, Jeremy Dixon, Eurydice Dixon’s father, stated that, although he does not know the applicant, ‘his term of imprisonment offers me no relief but rather, further distress’. That distress is borne out of ‘concern’ for his daughter’s ‘legacy’. Mr Dixon said that he does ‘not want part of her legacy to involve unnecessary imprisonment with the evil consequences that may follow’. He does not condone the applicant’s actions, and has no sympathy for the applicant or his act, but believes that a term of imprisonment is ‘detrimental to [his] daughter’s legacy’.
The applicant’s counsel submitted that the impact of the applicant’s offending on Eurydice Dixon’s family is a matter that the Court should consider and give weight. Evidence of Mr Dixon’s attitude was not available at the time of the plea, so that the judge was unaware of the impact of the offending. The principles in Nguyen[5] with respect to fresh evidence in sentencing cases were therefore attracted.
[5]R v Nguyen [2006] VSCA 184, [36].
Counsel for the respondent submitted that, assuming that Mr Dixon is a victim, his affidavit does not set out ‘the impact of the offence on any victim of the offence’, ‘the personal circumstances of any victim of the offence’ or ‘any injury, loss or damage resulting directly from the offence’.[6]
[6]See Sentencing Act 1991, s 5(2)(daa), (da) and (db).
We have absolutely no doubt that Mr Dixon is well-intentioned, and totally genuine in his beliefs. In our view, however, even if it be assumed, first, that the affidavit could be considered to be fresh evidence; and, secondly, that it might otherwise constitute a victim impact statement for the purposes of Division 1C of Part 3 of the Sentencing Act 1991; since it does not — as is required by s 8L(1) of the Act — contain ‘particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence’, we consider it to be inadmissible.
As we have indicated, we think that the affidavit was provided with sincerity and good intentions. Rather than speak to the impact of the applicant’s offending on him as a victim, however, or of any injury, loss or damage he suffered, Mr Dixon’s affidavit is directed to the impact that the judge’s sentence might have on his daughter’s legacy. That is not a matter to which a sentencing court may have regard.
Axiomatically, the only purposes for which a sentence may be imposed are those set out in s 5(1) of the Act, and those things to which a sentencing court must have regard to are set out in s 5(2). The affidavit deals with none of those matters.
Ground 2 cannot succeed.
Ground 3: A manifestly excessive sentence?
Under cover of ground 3, counsel for the applicant submitted that a sentence of five months’ imprisonment for the original offence is manifestly excessive when regard is had to the applicant’s plea of guilty; his remorse; the absence of prior convictions; his substantial compliance with the CCO; his employment history; the COVID-19 pandemic’s effect in making prison more onerous; and the principle of proportionality.
The respondent’s counsel submitted that the judge had taken into account all of the matters relied upon by the applicant’s counsel. Having regard to the maximum penalty for damaging property, and to the objective gravity of the applicant’s offending, it was open to the judge to impose the sentence that she did.
Although the applicant pleaded guilty — with the evidence in the hands of the prosecution we think he had little choice but to do so — it does not appear that he was wracked with remorse immediately following his crime. Thus, in a record of interview conducted by police on 28 June 2018 — some ten days after the offence was committed — the applicant initially was evasive, coy and untruthful. It is plain that he provided a false narrative of his movements on the morning of 18 June 2018 in a cynical effort to try and mislead police. It was only when he was confronted with damning evidence from CCTV footage — more than three hundred questions into the interview — that the applicant finally admitted his wrongdoing. Of course, he is not to be punished for the false and evasive answers to police questions. But insofar as remorse was put forward in mitigation of the applicant’s offending, it is difficult to discern much that indicates that the applicant is truly sorry for his appalling behaviour.
The crime of damaging property can be committed for a variety of reasons, including revenge or unthinking vandalism. In the present case, it is clear that the applicant’s was a calculated and deliberate act designed to cause great offence, annoyance and hurt to the community at large. So much increases the objective gravity of his offending. Thus, in his record on interview, when asked his ‘motivation’, he said:
I wanted to see if it could make the news. I wanted to – I – I basically wanted to see a giant dick – them report a giant dick on – in a news report, pretty much, I just thought it would be funny to be like, ‘Memorial vandalised with giant dick’, and then, like, just to see the dick on the screen, I just thought that’d be funny. I sort of wanted to see if I could do it, like, if I could, like, break the law.
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And I kinda wanted to annoy feminists, like, I wanted – like, I – I have nothing against the – the person who passed away and their family, like, I don’t even know ‘em, so it’s, like, if they got offended and stuff it’s, like – I - look, I – I didn’t wanna offend them, like, I – I just – like, I just thought that would have to come with doing the graffiti, you know what I mean. … And so – so, yeah, I just wanted feminists to be like, ‘Oh, some guy drew a big dick, oh, what the hell?’ just – like, it was just, like, a – a troll sort of thing and - - -
...
To annoy them. But it is kinda weird ‘cause, like, I don’t really like feminists and stuff and I thought this before I did it, I was 1ike, ‘Well, this is gunna annoy them and make them even more think that the crime was a man hating thing’, and I was kinda like, ‘What am I even doing this?’ you know what I mean, but something just made me wanna do it and see if I can do it and – yeah.
In our view, apart from the plea of guilty and its purely utilitarian benefit, save for his lack of prior convictions there was little to mitigate the applicant’s original offending, which, given his motives, was an objectively serious example of the offence of damaging property.
As we have mentioned, counsel for the applicant relied upon the applicant’s substantial compliance with the CCO. Thus, in proceedings for contravention of a CCO, s 83AS(1)(c) of the Sentencing Act 1991 permits a court to ‘cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence’; and subsection (2) provides that, in determining how to deal with an offender under subsection (1), a court ‘must take into account the extent to which the offender has complied with the [CCO]’.
It is said in the applicant’s favour that he had substantially complied with the unpaid work component of the CCO (in the sense that he had completed 173 hours of community work). But it cannot be gainsaid that there was also substantial non-compliance (part of which he had contemptuously tried to cover-up with a false statutory declaration). Although that non-compliance could not have been taken into account when sentencing for the original offence (for example, as an indication of a lack of remorse) — the court must ‘deal with the offender as if it had just found him or her guilty of that offence’ — it provides an overall perspective of the extent of the applicant’s compliance.
There is a lot more to a CCO such as the applicant’s than mere compliance with an unpaid work component. The applicant’s submissions seemed to proceed on the basis that completion of much of the work component ipso facto equated to substantial compliance with the CCO. As we have said, however, there was substantial non-compliance with the CCO’s terms, in that the applicant left the State of Victoria without permission on two occasions; that he had failed to perform unpaid community work as required on five occasions; and failed to be supervised, monitored and managed as directed on two occasions.
Ultimately, this ground could only succeed were we persuaded that the sentence imposed is wholly outside the range of those open in the sound exercise of discretion. We are not so persuaded. In our view, the sentence of 14 days’ imprisonment imposed for contravention of the CCO is — given the nature of the applicant’s breaches — benevolent. We are also of the opinion that the sentence of five months’ imprisonment imposed for damaging property is, given the objective gravity of the offence, moderate.
The complaint that the sentence is manifestly excessive is not reasonably arguable.
Conclusion
For these reasons, the application for leave to appeal against sentence must be refused.
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