Michael Nicholls v The Queen - [2016] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0081

MICHAEL NICHOLLS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2016
DATE OF JUDGMENT:	23 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 154
JUDGMENT APPEALED FROM:	DPP v Nicholls (Unreported, County Court of Victoria, Judge Dean, 4 March 2016)

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CRIMINAL LAW – Jurisdiction – Appeal from County Court – Community Correction Order imposed in County Court in disposition of appeal against sentence from Magistrates’ Court – Contravention of Community Correction Order – Community Correction Order cancelled – Offender resentenced – Sentencing Act 1991 s 83AS(1)(c) – Whether County Court exercising ‘original jurisdiction’ – County Court exercising ‘original jurisdiction’ – Right of appeal governed by Criminal Procedure Act 2009 s 278.

CRIMINAL LAW – Appeal – Sentence – Contravention of Community Correction Order – Offender resentenced – Trespass x 3 – Total effective sentence 13 months’ imprisonment, non-parole period 6 months – Maximum term of imprisonment imposed on one count – Whether excessive cumulation of sentences on unrelated trespass – Principle of totality breached – Sentence manifestly excessive – Appeal allowed – Resentenced to 6 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass	Victoria Legal Aid
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

I would invite Whelan JA to deliver the first judgment in this matter.

WHELAN JA:

The applicant seeks leave to appeal a sentence imposed upon him by a judge in the County Court on 4 March 2016.

The matter came before the judge in the County Court on 4 March 2016 in the following way.

By a charge sheet and summons dated 12 January 2016, filed pursuant to s 83AG of the Sentencing Act 1991, a proceeding was instituted against the applicant for an offence under s 83AD of the Sentencing Act. Section 83AD of the Sentencing Act relevantly provides:

(1)An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.
Penalty: 3 months imprisonment.

The charge sheet and summons alleged contravention of a Community Correction Order (‘CCO’) made in the County Court on 16 June 2014. That order had been made on an appeal to the County Court pursuant to Part 6.1 of the Criminal Procedure Act 2009 from a sentence of an aggregate term of six months’ imprisonment and a fine of $300 imposed in the Magistrates’ Court on one count of use of amphetamine and three counts of trespass.

Pursuant to s 83AI of the Sentencing Act the summons was initially returnable in the Magistrates’ Court and pursuant to s 83AJ of the Sentencing Act the Registrar of the Magistrates’ Court transferred the proceeding to the County Court. Pursuant to s 83AJ(4) the proceeding as so transferred was to be heard and determined in the County Court without a jury in accordance with Chapter 3 of…

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 Michael Nicholls v The Queen

Details

AGLC: Michael Nicholls v The Queen [2016] VSCA 154
Case: [2016] VSCA 154
Decision Date: 23 June 2016

CaseChat Overview and Summary

The matter of Michael Nicholls v The Queen was heard in the County Court of Victoria, where the defendant, Michael Nicholls, appealed a decision from the Magistrates’ Court. The primary dispute centred on the sentence imposed on Nicholls for multiple counts of trespass, and the subsequent contravention of a Community Correction Order (CCO). The sentence imposed was a total effective term of 13 months imprisonment, with a non-parole period of 6 months. Nicholls contended that the cumulative sentence was excessive and breached the principle of totality, arguing that the sentences should not be cumulative if they were for unrelated offences.

The central legal issue for the court to determine was whether the County Court had the jurisdiction to hear an appeal against the resentencing by the Magistrates’ Court following a contravention of a CCO. Specifically, the court needed to decide if the resentencing constituted the exercise of ‘original jurisdiction’ under the Sentencing Act 1991, and whether the appeal was governed by section 278 of the Criminal Procedure Act 2009. Additionally, the court had to consider whether the cumulative sentence imposed was manifestly excessive and whether it breached the principle of totality.

In its judgment, the County Court held that it did have the jurisdiction to hear the appeal and that the resentencing did constitute the exercise of original jurisdiction. The court further held that the appeal was governed by section 278 of the Criminal Procedure Act 2009. Upon reviewing the sentence, the court found that the cumulative effect of the sentences imposed for unrelated trespass offences was excessive and breached the principle of totality. Consequently, the court allowed the appeal, set aside the resentencing, and resentenced Nicholls to 6 months’ imprisonment.

The final orders of the court were that the appeal was allowed, and the resentencing by the Magistrates’ Court was set aside. Michael Nicholls was resentenced to a term of 6 months’ imprisonment, reflecting a reduction from the originally imposed 13 months’ imprisonment.

Orders