Director of Public Prosecutions v Nolan

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION
CR 16-02138

DIRECTOR OF PUBLIC PROSECUTIONS

SHANNON NOLAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2017
CASE MAY BE CITED AS:	DPP v Nolan
MEDIUM NEUTRAL CITATION:	[2017] VCC 34

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Senia
For the Accused	Ms M. Foley

Pages 1 - 9

HIS HONOUR:

Shannon Nolan, can you stand up please. You have pleaded guilty to one charge of recklessly cause serious injury, one charge of false imprisonment and one charge of making threat to kill. These offences carry the following maximum penalties: recklessly cause serious injury - 15 years' imprisonment, false imprisonment - 10 years imprisonment, threat to kill - 10 years imprisonment.
It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the summary of prosecution opening for a plea. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.
Now, I will just start again seeing that there were a number of people outside when we commenced.
Shannon Nolan, you have pleaded guilty to one charge of recklessly cause serious injury, one charge of false imprisonment and one charge of making threat to kill. These offences carry the following maximum penalties: recklessly cause serious injury - 15 years' imprisonment, false imprisonment - 10 years imprisonment, threat to kill - 10 years imprisonment.
It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the summary of prosecution opening for a plea. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.
You and the victim Jessica Feeley have been in a de facto relationship for about nine years. On 24 June 2016 you were living in a cabin at the Riverglen Caravan Park in Belmont with your two children aged five and four years. At about midday you and the victim and your two children travelled to and from your cabin to the Belmont Shopping Village by taxi. You purchased alcohol from Liquorland. You were enraged when the taxi driver called you a "junkie alcoholic". You asked the victim to call the taxi company to complain. When she was doing this you forced her into some bushes and punched her to the chin and lip.
You, the victim and your children then walked back to the Liquorland so you could buy more alcohol. Upon your return to your cabin your behaviour escalated and you forced the victim to make further phone calls complaining of the taxi driver's action in calling you a "junkie alcoholic."
You began to scream at the victim and you punched and kicked her. Punching and kicking continued and you then struck the victim over the head with a broom. This was such a forceful blow it caused the broom head to snap off. The victim's head was bleeding. At about 4 pm the victim sought refuge in the shower. You continued to assault her by throwing a kettle of boiling water over her. The kettle broke and the victim was splashed with hot water, although she had a jacket and was able to protect herself to some extent. You whipped the victim with the kettle cord, the phone charger and the blow up mattress cord. You also bit the victim to the back, arms and her leg.
Your young daughter tried to get you to stop attacking the victim by yelling, "Daddy, stop. Help, help." Your other young child hid under the kitchen table. The victim tried to flee from the cabin but you had blocked the door with a couch. When the victim tried to escape you grabbed her and said, "You're fucking stupid, you think you're going to get out. You'll never get out."
The victim was distraught. You threw more boiling water over the victim's back. You forced the victim to enter the bathroom. You told the victim to rub salt into the open cut on her lip. She refused. You poured salt over the victim's head and you forcibly rubbed salt into the cuts on her scalp. You threw black and white pepper over the victim and you poured curry powder over the victim. The victim was in immense pain.
You told the victim not to have a shower and you said, "This is the end, Jess. You knew it was coming, you're going to die. If police come you will be dead by the time they get here, I will stab you to death."
You spilled some hot water on yourself and you took your pants off. You showed the victim a spoon of boiling sugar on it and you said, "Wait, literally two seconds cunt, because I'm going to check the phone. When I'm back, you're fucked."
The victim then ran from the bathroom, grabbed a knife from the kitchen sink to defend herself not knowing that she had, in fact, picked up the sharp end of the knife and she bolted out the front door of the cabin. You then left the cabin in search of the victim leaving the two children alone inside the cabin. The victim escaped into a nearby cabin and was hidden by the occupants of that cabin. You could be heard yelling out the victim's name. Multiple calls to Triple 0 were made by occupants of the caravan park and multiple police units were in attendance.
Your two young children were located in the cabin by police. They were in an extremely distressed state. When they were asked what happened Kyla said to the police, "Daddy tried to kill Mummy."
You were arrested by police. You made partial admissions in a record of interview. You said you had drunk 12 cans of bourbon and coke and you had a shot of ice.
The victim attended at the Geelong Hospital on the day of this attack. She was reported as having the following injuries: "large haematoma to forehead/eyebrow 8x4 centimetres, 7 x 1/2 centimetre wounds to the scalp, fractured nose, full thickness wound to upper lip, whip like marks to the back, full thickness wound to pulp of right index finger, multiple bruises to fingers, bruising to forearms, haematoma to left leg."
The victim's lip required stitches and her finger wound was treated with tissue glue. She refused further treatment to her head injuries due to pain.
On September 19 and 26, 2016 the victim was assessed by Dr Gardner at the Plantation Medical Clinic and he noted amongst other things and I quote, "Feeley reports headaches with a focus on her right forehead occurring every two to three days. Right forehead with further swelling one centimetre above middle third of brow. Multiple lesions consistent with recent scarring to the Crown, chin, arms and legs. Well healed scar over base of right scapula, skin lesion on left side of back approximately 2 centimetres long in U pattern extending approximately one centimetre linearly. Flat brown pigmented skin lesion over right of back."
I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty at an early stage. You co-operated with authorities and, as I have already stated, made partial admissions in your record of interview. I accept on all the material before me that you are genuinely remorseful.
I have been told something of your personal circumstances. You are 23 years of age having been born on 4 May 1993. You are unemployed. You are on remand. You have been in custody since your arrest on 24 June 2016. You had a disrupted and dysfunctional childhood. Your father was a violent alcoholic and drug addict and your mother drank heavily. Your parents separated frequently and you experienced much dislocation. Your parents eventually separated when you were 15 years of age.
You were homeless for a while before moving in with the victim's parents. As I have already stated you have been in a relationship with the victim for about nine years and there are the two young children of that relationship. You have had frequent changes in your residence. You completed Year 9 but you are barely literate. You have done two courses whilst in custody. You have a very limited work history. You have been a long term heavy user of alcohol and cannabis and you became addicted to ice in late 2015, early 2016.
22 At the time of this offending you were using alcohol and drugs on a daily basis. You have a history of mental health issues. Dr Sanjay Handam, psychiatrist, has provided a report in which he states that he saw you on 12 February 2014, 18 June 2014 and interviewed you on 9 December 2015. It was his opinion that you continued to experience a combination of anxiety and low level hypo manic symptoms. You were abusing cannabis and this was probably making these conditions worse. He diagnosed you were suffering from social phobia, bipolar disorder Type 2, cannabis abuse, and borderline personality traits. He formulated a management plan which involved medication and treatment however you did not comply with this management plan.
23 You have been assessed by Mr David Ball, psychologist, at the request of your solicitors. He has provided a report dated 25 January 2017. You provided, as part of a history to Mr Ball the following explanation for your offending. You said, "Because of drugs I didn't trust my partner but most of all I forgot who I was and the things that matter to me. I can't remember much of when I attacked my partner. It feels like I was in a different body. I lost control of my life and became someone I hate."
Mr Ball was of the opinion that you were unable to offer any clear insight into this offending. He did suggest that it was an artefact of substance dependence and antisocial features of your personality. In terms of your intellectual impairment, Mr Ball stated that you presented as functionally illiterate, innumerate and as a generally low functioning adult.
He considered that you satisfy the DSM 5 diagnostic criteria for the severe stimulant, alcohol, benzodiazepine and cannabis use disorders in early remission in a controlled environment.
At p.3 of his report he expressed the opinion and I quote, "Overall Mr Nolan impressed me as a man with impairment to his capacity to act with generally good judgement. He presented with a significant history of drug and alcohol dependence, anti-social features in his personality and living on the fringes of the community. He expressed little insight into his offending behaviour and general psychological function."
It is on this basis that it is submitted that the principles denunciated in Verdins case apply. I do not accept this submission. Whilst you may be low functioning in terms of mental impairment I am not satisfied of any relationship between any impaired mental functioning and this offending. I do not accept that there is any realistic connection between your mental state and this offending. I do not find any causal link between your mental state and this offending. I find this offending occurred when you were affected by excessive amounts of alcohol and the drug ice. This is not a situation that is properly described as you failing to act with "good judgement" rather you were in a violent rage induced in part by alcohol and ice.
Whilst I do not accept that any principles enunciated in Verdins case apply, I have taken the matters referred to in the psychiatrist’s report and psychologist’s report concerning your mental state and your intellectual function into account in a general sense as part of your personal circumstances.
Whilst you are still a relatively young man these are very serious offences. In this circumstance I do not accept the principles applicable to the sentencing of youthful offenders apply. I assess your prospects of rehabilitation as being cloudy.
Against these matters in mitigation however, your actions were very serious indeed. This was a deplorable assault upon your de facto partner. It occurred over a long period from about midday to about 7.20 pm. Your two young children were present. It was clearly a terrifying experience for your children and the victim.
The assault occurred in your home, a cabin. This was a confined space. You used various weapons, a broom and cables together with hot water and you assaulted the victims with your fists and mouth. You literally rubbed salt into the victim's wounds. This was gratuitous and sickening behaviour. The threat to kill was a serious example of this type of offence as was the false imprisonment. As I said, the false imprisonment extended over some hours and you placed a couch against the door.
There are three victim impact statements. The victim, Jessica Feeley, has not been the same since this incident. She is fearful for her safety and she has residual physical symptoms. She has nightmares and experiences difficulty sleeping. The physical scars that she bears are a constant reminder to her of your actions. She and her children require counselling. The victim's mother, Tracey Feeley, and her father Greg Feeley, both, describe the devastating impact of your offending on their lives and that of the victim and her children. Your actions have caused enormous stress to all of these persons.
I have had regard to the Victim Impact Statements they must not overwhelm other relevant sentencing considerations. You have admitted before me prior convictions. There are four court appearances between 7 June 2013 and 27 September 2010 involving unrelated matters. These are of little relevance to my task of sentencing you today.
As well as the matters to which I have referred I must also take into account the need for general and specific deterrence. Specific deterrence is relevant. General deterrence is also of considerable importance in a case such as this.
Superior courts have emphasised the need to discourage offending of this nature involving gross acts of violence in a domestic situation. There must be a strong denunciation of violence within domestic relationships. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
It is not in issue that an immediate custodial sentence is required. I have had regard to the total of comparative cases, sentencing statistics and relevant authorities provided by counsel. This is a most unusual case with many aggravating features. I have had regard to the principle of totality. The most serious offence is recklessly cause serious injury. The sentence on this offence will be the base sentence. Whilst there was one episode of offending it is appropriate that there be a degree of cumulation in respect of the other offences of false imprisonment and make threat to kill. Days in custody, there are 222 days of pre-sentence detention.
Having regard to all appropriate facts and sentencing principles I sentence you as follows:
Recklessly cause serious injury, convicted and sentenced to six years' imprisonment.
False imprisonment, convicted and sentenced to two years' imprisonment.
Threat to kill, convicted and sentenced to two years' imprisonment.
I direct that one year of the sentence on Charge 2 and one year of the sentence on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Otherwise, the sentence is to be served concurrently. The total effective sentence is eight years imprisonment.
42The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason it cannot be fixed automatically, all relevant factors in the sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in return rehabilitation under conditional supervision. In all the circumstances I direct you serve a minimum term of five years and six months' imprisonment before becoming eligible for parole.
43 As prescribed by s.18, sub-s(4) of the Sentencing Act, I declare the period of time you spent in custody is 222 days which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
44 There is an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act. I intend to make an order that you undergo a forensic procedure for the taking of samples. The reasons for making the order will be published on the order which I will sign. I must inform you as a matter of law that a member of the police force may use reasonable force to enable the procedure to be conducted.
45 I have made the disposal order sought by prosecution.
46 Pursuant to s.6AAA of the Sentencing Act I state the sentence and non-parole period I would have imposed but for the plea of guilty is ten years' imprisonment with a non-parole period of seven years. The prisoner can be removed.
(OFFENDER REMOVED.)

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[2017] VCC 34

2 February 2017