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Nelson v The Queen

Nelson v The Queen

Case [2020] VSCA 219 2 September 2020

Appeal

Sentencing

Manifest Excess

Principle of Proportionality

Impact of Prior Criminal History on Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0132

STEVEN NELSON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARGRAVE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2020
DATE OF JUDGMENT:	2 September 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 219
JUDGMENT APPEALED FROM:	[2019] VCC 392 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Sentencing considerations – Manifest excess – Exercise of sentencing discretion – Principle of totality – Principle of proportionality – Impact of prior criminal history on sentencing – Prior convictions and purpose of protection of the community – Prior convictions and purpose of deterrence; Veen v The Queen [No 2] (1988) 164 CLR 465, Clarkson v The Queen (2011) 32 VR 361, Dinsdale v The Queen (2000) 202 CLR 321 considered, Crimes Act 1958 ss 317AE, 317AF, Criminal Procedure Act 2009 s 280.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Page	May Monagle Lawyers
For the Respondent	Mr P Bourke	Mr A Castle, Solicitor for Public Prosecutions

HARGRAVE JA

T FORREST JA:

On 27 February 2019 the appellant pleaded guilty to the charges set out in the table below. On 13 March 2019 he was sentenced by a judge of the County Court as follows:

Charge No

Offence

Maximum Penalty

Sentence

Cumulation

1
Theft

(s 74 Crimes Act 1958)
10 years 2 years 6 months

2

Aggravated Reckless Exposure of Emergency Workers to Risk by Driving

(s 317AF(1)(b) Crimes Act 1958)

10 years

3 years

Base sentence

3

Conduct endangering persons

(s 23 Crimes Act 1958)

5 years

2 years

1 year

4

Handling Stolen Goods

(s 88(1) Crimes Act 1958)

15 years

2 years

6 months

12

Unlicensed Driving

(s 18(1)(a) Road Safety Act 1958)

60 PU or

6 months

2 months

1 month

13

Unlicensed Driving

(s 18(1)(a) Road Safety Act 1958)

60 PU or

6 months

2 months

1 month

15

Commit an Indictable Offence while on Bail

(s 30B Bail Act 1977)

30 PU or

3 months

2 months

1 month

16

Unlicensed Driving

(s 18(1)(a) Road Safety Act 1958)

60 PU or

6 months

2 months

1 month

17

Resist Emergency Workers on Duty

(s 51(2) Summary Offences Act 1966)

60 PU or

6 months

2 months

21

Fraudulent Alteration of a Number Plate

(s 72(1A) Road Safety Act 1958)

60 PU or

6 months

2 months

22

Possess Controlled Weapon

(s 6(1) Control of Weapons Act 1990)

120 PU or

12 months

9 months

3 months

24

Commit an Indictable Offence while on Bail

(s 30B Bail Act 1977)

30 PU or

3 months

2 months

1 month

27

Driving a motor vehicle when directed to stop

(s 64A Road Safety Act 1958)

12 PU or

12 months (Subsequent Offence)

3 months

28 & 31

Driving an unregistered motor vehicle

(s 7(1)(a) Road Safety Act 1958)

50 PU

(Subsequent Offence)

Convicted and fined $1,611.90

Total…

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 Nelson v The Queen

Details

AGLC: Nelson v The Queen [2020] VSCA 219
Case: [2020] VSCA 219
Decision Date: 2 September 2020

CaseChat Overview and Summary

In the case of Nelson v The Queen, the appellant sought to appeal his sentence for a criminal offence. The appellant's criminal history was extensive, and he had been sentenced to a lengthy term of imprisonment. The appeal was brought before the Court of Appeal, which was required to determine whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was too severe, taking into account his age and criminal history, while the Crown contended that the sentence was appropriate given the gravity of the offence.

The Court of Appeal was required to consider the relevant legal principles and statutes governing sentencing, including the principle of totality, the principle of proportionality, and the impact of prior criminal history on sentencing. The Court needed to determine whether the sentence imposed was manifestly excessive, taking into account the appellant's age, criminal history, and the purposes of sentencing, including protection of the community and deterrence. The Court also needed to consider relevant precedents, including Veen v The Queen [No 2], Clarkson v The Queen, and Dinsdale v The Queen.

The Court of Appeal found that the sentence imposed was not manifestly excessive. The Court noted that the appellant had a lengthy criminal history and that the offence for which he was sentenced was serious. The Court found that the sentence was proportionate to the seriousness of the offence and that it took into account the appellant's criminal history and age. The Court also found that the sentence was necessary to protect the community and to deter the appellant and others from committing similar offences. The Court rejected the appellant's argument that his age and criminal history should have been given greater weight in determining the sentence.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the trial court. The Court found that the sentence was appropriate and that there was no manifest excess in the sentence imposed. The Court noted that the appellant's criminal history was a relevant consideration in determining the sentence, but that it was not the only consideration. The Court found that the sentence imposed was proportionate to the seriousness of the offence and that it achieved the purposes of sentencing, including protection of the community and deterrence.

Orders