Nancarrow v The Queen - [2010] VSCA 300

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0680

AMBER CLAIRE NANCARROW
AMBER CLAIRE NANCARROW	Appellant
v
THE QUEEN	Respondent

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JUDGE:	NETTLE and HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2010
DATE OF JUDGMENT:	9 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 300
JUDGMENT APPEALED FROM:	R v Nancarrow (Unreported, County Court of Victoria, Judge Gullaci, 15 June 2009)

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CRIMINAL LAW – Sentencing – Guilty plea – Attempted armed robbery – Armed robbery while on bail for attempted armed robbery – Young offender – Drug addiction – Prior convictions – Judge found rehabilitation prospects limited – No error in treatment of youth and rehabilitation prospects – Total effective sentence of three years eight months’ imprisonment with non-parole period of two years and two months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Matthew White & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Justice Hansen to deliver the first judgment.

HANSEN JA:

Amber Claire Nancarrow (‘the appellant’) pleaded guilty in the County Court to one count of attempted armed robbery (count 1) and one count of armed robbery (count 2). The maximum penalties for these offences were 20 and 25 years’ imprisonment respectively. The attempted armed robbery occurred on 1 August 2008; the appellant was arrested that day and released on bail. Then, in October 2008, while still on bail, she committed the armed robbery. Section 16(3C) of the Sentencing Act 1991 thus required that unless the court otherwise directed, any sentence of imprisonment for the second offence be served cumulatively on any sentence of imprisonment for the first offence.

The appellant was aged 19 at the time of the offences and 20 at the time of sentence, however she had numerous prior convictions to which I refer below.

Following a plea in mitigation, on 15 June 2009 a judge in the County Court sentenced the appellant to 18 months’ imprisonment on count 1 and 32 months’ imprisonment on count 2, with 12 months of the sentence imposed on count 1 to be served cumulatively on the sentence imposed on count 2, producing a total effective sentence of three years and eight months, with a non-parole period of two years and two months. The judge stated that if she had not pleaded guilty, he would have imposed a total effective sentence of four years and ten months with a non-parole period of three years and four months. The judge further ordered that the sentence be served concurrently with a sentence of four months[1] the appellant was serving at the time of sentence, and declared that she had served 53 days of pre-sentence detention.

[1]This sentence, imposed by the Magistrates’ Court on 3 March 2009 in respect of a series of offences (including assault, theft of a car, and unlicensed driving) committed between January and September 2008, expired on 3…

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 Nancarrow v The Queen

Details

AGLC: Nancarrow v The Queen [2010] VSCA 300
Case: [2010] VSCA 300
Decision Date: 9 November 2010

CaseChat Overview and Summary

The matter of Nancarrow v The Queen came before the court in an appeal against sentence. Nancarrow had been found guilty of attempted armed robbery and armed robbery while on bail for the attempted armed robbery. The trial judge imposed a sentence of imprisonment, taking into account Nancarrow's youth, drug addiction, prior convictions, and limited prospects for rehabilitation. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive.

The court considered whether the trial judge had given appropriate weight to the mitigating factors of Nancarrow's youth, drug addiction, and prospects for rehabilitation. The court found that the trial judge had correctly assessed these factors and had appropriately balanced them against the seriousness of the offences. The court further noted that the total effective sentence of three years and eight months' imprisonment, with a non-parole period of two years and two months, was not manifestly excessive. The court held that the trial judge had exercised their discretion correctly and had not erred in the treatment of the youth and rehabilitation prospects.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence imposed by the trial judge was appropriate and not manifestly excessive, taking into account all relevant factors. The final orders of the court were that the appeal be dismissed and the original sentence be upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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