Nelis v The King - [2023] VSCA 128

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0045

JOHN NELIS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2023
DATE OF JUDGMENT:	29 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 128
JUDGMENT APPEALED FROM:	DPP v Nelis [2022] VSC 50 (Lasry J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter by gross negligence – Pointing and pulling trigger of shotgun thought to be unloaded – Sentencing judge took into account standard sentence for homicide by firearm – Sentencing discretion miscarried – Appeal allowed – Resentenced to total effective sentence of 9 years’ imprisonment with 6 years non-parole.

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Counsel
Applicant:		Mr D Dann KC with Ms S Lenthall
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA
TAYLOR JA:

Introduction

On 4 July 2020, the applicant, then aged 36 years,[1] pointed a loaded shotgun at Christopher ‘Legsy’ Jacobs, aged 39.[2] Without first checking whether the shotgun was loaded, he pulled the trigger. The shotgun — which, regrettably, was indeed loaded — discharged, causing Mr Jacobs to suffer fatal injuries to the chest and abdomen.
[1]His date of birth is 15 October 1983.
[2]His date of birth was 7 November 1980.
As a result of these events, the applicant was charged with manslaughter,[3] the prosecution alleging that it was grossly negligent of the applicant to have pointed the shotgun at Mr Jacobs and pulled the trigger without first checking whether it was loaded.
[3]Manslaughter is a crime at common law. By virtue of s 5 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
On 13 October 2021, the applicant pleaded guilty to Mr Jacobs’ manslaughter before a judge in the Supreme Court. Following a plea conducted over two days on 2 December 2021 and 31 January 2022, on 28 February 2022 the judge sentenced the applicant to be imprisoned for 11 years, and fixed a non-parole period of eight years.[4]
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to 13 years’ imprisonment and fixed a non-parole period of 10 years.
It appears that the applicant offered to plead guilty to negligent manslaughter at a relatively early stage. On 28 May 2021, the applicant made an offer to plead guilty to that species of manslaughter. At that stage, however, the offer was rejected. He was then committed to the Supreme Court by the Magistrates’ Court on 11 June 2021 in accordance with the Supreme Court’s ‘fast-track’ procedure; and, between 8 and 20 September 2021, witnesses were examined pursuant to s 198B of the Criminal Procedure Act 2009. The matter resolved on 13 October 2021 and, as we have said, the applicant pleaded guilty that day to negligent manslaughter.
The applicant now seeks leave to appeal against that sentence…

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 Nelis v The King

Details

AGLC: Nelis v The King [2023] VSCA 128
Case: [2023] VSCA 128
Decision Date: 29 May 2023

CaseChat Overview and Summary

The appellant was convicted of manslaughter by gross negligence following an incident where he pointed and pulled the trigger of a shotgun which was believed to be unloaded. The case was appealed on the basis that the sentencing judge miscarried in the exercise of sentencing discretion by considering the standard sentence for homicide by firearm. The High Court of Australia was called upon to review the sentence.

The primary legal issue before the court was whether the sentencing judge had correctly exercised the discretion available under the relevant sentencing legislation. Specifically, the court had to determine whether the sentencing judge erred by considering the standard sentence for homicide by firearm, which is typically a much more severe offence than manslaughter by gross negligence. The court also needed to consider whether this error warranted the allowance of the appeal and the subsequent resentencing of the appellant.

The court found that the sentencing judge did indeed miscarry in the exercise of sentencing discretion by taking into account the standard sentence for a more severe offence. The court noted that while the sentencing judge had considered the appropriate factors, the inappropriate consideration of the standard sentence for a more serious offence led to an overestimation of the severity of the crime committed. The court held that this constituted a significant error in the exercise of sentencing discretion, warranting the allowance of the appeal. The appellant was therefore resentenced, with the court imposing a total effective sentence of nine years' imprisonment, with a non-parole period of six years.

The court's final order was that the appeal be allowed, and the appellant be resentenced to a total effective sentence of nine years' imprisonment, with a non-parole period of six years. This decision underscores the importance of correctly exercising sentencing discretion and the need for courts to avoid inappropriate comparisons with other, more serious offences when determining an appropriate sentence for the crime committed.

Orders