Nicholson v The Queen - [2017] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0007

STEPHEN WILLIAM NICHOLSON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 238
JUDGMENT APPEALED FROM:	DPP v Nicholson (Unreported, County Court of Victoria, Judge Parsons, 16 November 2016)

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CRIMINAL LAW — Appeal — Sentence — Two indictments — Burglary, theft, deal with proceeds of crime and related offences — Breach of bail — Totality — Whether judge erred in ordering total cumulation of total effective sentences on each indictment — Whether manifestly excessive — Deprived upbringing — Repeated serious offending over extended period — Extensive criminal history — Prior rehabilitation opportunities — No error — Appeal dismissed — Sentencing Act 1991 (Vic) s 16(3C) — Bugmy v The Queen (2013) 249 CLR 571.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

For the Crown

Mr P J Smallwood

Mr B L Sonnet

Greg Thomas Barrister & Solicitor

The Office of Public Prosecutions

PRIEST JA:

KAYE JA:
COGHLAN JA:

The appellant pleaded guilty in the County Court to a number of charges contained in two separate indictments. In relation to the first indictment (F 13147832), he pleaded guilty, on 1 February 2016, to one charge of burglary, one charge of theft, and one summary charge of committing an indictable offence while on bail. In relation to the second indictment (E 13973880), on 9 March 2016, the appellant pleaded guilty before the same judge to seven charges of knowingly dealing with the proceeds of crime, seven charges of obtaining property by deception, one charge of burglary, two charges of theft, and one summary charge of contravening a condition of bail.

On 16 November 2016, after a series of hearings in the Koori Court Division of the County Court, the appellant was sentenced, in respect of both the offences contained in both indictments, to a total effective sentence of four years and seven months’ imprisonment, with a non-parole period of three years, as follows:[1]
[1]DPP v Stephen Nicholson (Unreported, County Court of Victoria, Judge Parsons, 16 November 2016) (‘Reasons’).

Indictment
F13147832 Offence Maximum Sentence Cumulation

1 Burglary [Crimes Act 1958 s 76(1)] 10 years’ imprisonment 18 months’ imprisonment Base

2 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 12 months’ imprisonment 3 months

Summary charge Commit indictable offence whilst on bail [Bail Act 1977 s 30B] 3 months’ imprisonment or 30 penalty units 3 months’ imprisonment -

Total Effective Sentence Indictment F13147832:

1 year and 9 months’ imprisonment

Other relevant orders: Sentence imposed on E13973880 and F13147832 to be served cumulatively

Indictment
E13973880 Offence Maximum Sentence Cumulation

1 Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)] 15 years’ imprisonment 2 months’ imprisonment 1 month

2 Obtain property by deception [Crimes Act 1958 s 81(1)] 10 years’ imprisonment 1 month imprisonment -

Indictment F13147832	Offence	Maximum	Sentence	Cumulation
1	Burglary [Crimes Act 1958 s 76(1)]	10 years’ imprisonment	18 months’ imprisonment	Base
2	Theft [Crimes Act 1958 s 74(1)]	10 years’ imprisonment	12 months’ imprisonment	3 months
Summary charge	Commit indictable offence whilst on bail [Bail Act 1977 s 30B]	3 months’ imprisonment or 30 penalty units	3 months’ imprisonment	-
Total Effective Sentence Indictment F13147832:	1 year and 9 months’ imprisonment
Other relevant orders: Sentence imposed on E13973880 and F13147832 to be served cumulatively

Indictment E13973880	Offence	Maximum	Sentence	Cumulation
1	Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)]	15 years’ imprisonment	2 months’ imprisonment	1 month
2	Obtain property by deception [Crimes Act 1958 s 81(1)]	10 years’ imprisonment	1 month imprisonment	-

3 Knowingly deal with proceeds 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 Nicholson v The Queen

Details

AGLC: Nicholson v The Queen [2017] VSCA 238
Case: [2017] VSCA 238
Decision Date: 6 September 2017

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Nicholson, against his sentences imposed by the County Court of Victoria for two separate indictments. The charges included burglary, theft, dealing with the proceeds of crime, and related offences, as well as a breach of bail. Nicholson challenged the severity of his sentence, arguing that the trial judge erred in ordering the total cumulation of the total effective sentences on each indictment, and that the overall sentence was manifestly excessive. Nicholson also presented his deprived upbringing and extensive criminal history as mitigating factors, along with prior rehabilitation opportunities.

The court was tasked with determining whether the trial judge erred in ordering the total cumulation of the total effective sentences, and if the sentence was manifestly excessive. The court examined the relevant provisions of the Sentencing Act 1991 (Vic) and considered the principles outlined in Bugmy v The Queen. The court assessed the totality of the defendant's offending and his history, as well as the circumstances of each offence. The court also considered the impact of cumulative sentencing and the principles of proportionality and deterrence in sentencing.

The court found that the trial judge did not err in ordering the total cumulation of the total effective sentences, as it was appropriate in light of the defendant's extensive criminal history and repeated serious offending over an extended period. The court held that the sentence was not manifestly excessive, taking into account the totality of the offending, the need for general deterrence, and the defendant's deprived upbringing. The court also noted that the defendant had been given prior opportunities for rehabilitation, which had not been successful. The appeal was dismissed, and the original sentences were upheld.

The final orders of the court were that the appeal be dismissed, and the original sentences imposed by the County Court of Victoria be upheld. The court did not alter the sentences, and the defendant's appeal was unsuccessful.

Orders