JUDGE:	LASRY J
WHERE HELD:	Geelong
DATES OF HEARING:	2 December 2021 and 31 January 2022
DATE OF SENTENCE:	28 February 2022
CASE MAY BE CITED AS:	DPP v Nelis
MEDIUM NEUTRAL CITATION:	[2022] VSC 50

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CRIMINAL LAW — Sentence — Manslaughter — Negligence — Discharge of shotgun — Unaware firearm was loaded — Offending occurred in the context of drug use — Evidence of remorse notwithstanding post-offence flight — Relevant criminal history — Guarded prospects of rehabilitation — Difficult custodial conditions — Custody likely to be more burdensome due to PTSD — Utilitarian value of plea during pandemic — Sentence of 11 years’ imprisonment, with non-parole period of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Kristie Churchill with Ms Susanna Locke	Office of Public Prosecutions
For the Accused	Mr Dermot Dann QC with Ms Sarah Lenthall	Emma Turnbull Lawyers

HIS HONOUR:

John Nelis, you have pleaded guilty to one count of manslaughter arising from the shooting death of Christopher Jacobs at Corio on 4 July 2020. Your plea to the charge of manslaughter is on the basis of criminal negligence. Although you fired the fatal shot, you did so not realising the gun was loaded.

On 2 December 2021 and 31 January 2022, I heard the prosecution opening, received victim impact statements into evidence and heard submissions from your counsel and counsel for the prosecution as to the sentence that should be imposed on you. The maximum penalty for manslaughter is 25 years’ imprisonment. It is now my responsibility to sentence you for this offence.

Circumstances of the offending

In July 2020, Mr Jacobs, who was also known as ‘Legsy’, was living in a caravan in the backyard of 17 Chaffey Square, Corio. Melanie Menzies, Kayla Collins and Joshua Hocking also lived at that address in the home at the front of the property.

In the early hours of 4 July 2020, you were at the Wandana Heights home of two associates, Sherona Zanoni and Zak Warren. Zanoni called her friend Avril Ludlow, who attended the Wandana Heights address to pick you up sometime after 1:00 am. Before you and Ludlow left, you, Ludlow, Zanoni and Warren all had what is described as a “plunge” or dose of gamma hydroxybutyrate (‘GHB’).

At approximately 2:40am on 4 July 2020, Shirelle Kennan picked Mr Jacobs up from his girlfriend, Emma Bell's, house. They then picked up Cassandra Stegmann and went to Mr Jacobs' caravan. Kennan left shortly after, at about 4:10am, and Stegmann remained with Mr Jacobs in the caravan.

At around this time, Ludlow drove you to the Chaffey Square property to see Mr Jacobs. You had known Mr Jacobs for a number of years and the two of you were close. Ludlow thought you were going to have a ‘plunge’ with Jacobs. You were in possession of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Nelis

Details

AGLC: Director of Public Prosecutions v Nelis [2022] VSC 50
Case: [2022] VSC 50
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of DPP v Nelis involved the Director of Public Prosecutions and the respondent, Nelis. The dispute centred on the appropriate sentence to be imposed on Nelis, who had been found guilty of manslaughter. The case was heard in the Supreme Court of Queensland. The incident in question occurred when Nelis, under the influence of drugs, discharged a shotgun in a negligent manner, resulting in the death of a person. The circumstances of the offence included Nelis’s lack of awareness that the firearm was loaded and his flight from the scene following the incident, despite showing evidence of remorse.

The legal issues before the court included the appropriate weight to be given to various factors in determining the sentence, such as the nature and circumstances of the offence, Nelis's criminal history, his prospects for rehabilitation, and the potential impact of imprisonment on his health. The court was also required to consider the utilitarian value of Nelis’s early guilty plea, particularly in the context of the COVID-19 pandemic. The court had to balance these factors to arrive at a sentence that was just and appropriate, taking into account the need for punishment, deterrence, and rehabilitation.

The court, in delivering its judgment, considered the gravity of the offence, the significant level of negligence involved, and the circumstances surrounding the death. It acknowledged Nelis’s remorse and his early guilty plea, which had practical benefits during the pandemic. However, the court also took into account Nelis’s criminal history, the guarded prospects of rehabilitation, and the difficult conditions he would face in custody, exacerbated by his PTSD. Ultimately, the court determined that a sentence of 11 years’ imprisonment, with a non-parole period of eight years, was appropriate, reflecting the serious nature of the offence and the need for both punishment and deterrence.

The court's final orders included that Nelis be imprisoned for 11 years, with a non-parole period of eight years, reflecting the court's assessment of the various factors involved in the sentencing process.

Orders