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Nolan v The Queen

Nolan v The Queen

Case [2017] VSCA 240 6 September 2017

Criminal Liability

Sentencing

Recklessly causing serious injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0031

SHANNON NOLAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, FERGUSON and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 240
JUDGMENT APPEALED FROM:	DPP v Nolan [2017] VCC 34 (Judge Coish)

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CRIMINAL LAW – Sentence – Recklessly causing serious injury – False imprisonment – Making threat to kill – Serious offending by 23 year old against domestic partner in presence of children - Judge assessed prospects of rehabilitation as ‘cloudy’ - Total effective sentence of eight years’ imprisonment – Non-parole period of five years and six months – Whether principles related to youthful offenders should have been applied – Judge took all relevant sentencing factors into account and balanced appropriately – Sentence was not manifestly excessive – Azzopardi v The Queen (2011) 35 VR 43 – Sentencing Act 1991

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APPEARANCES:

Counsel

Solicitors

For the Applicant

For the Respondent

Mr M Reardon

Mr B Kissane QC

Victoria Legal Aid

Solicitor for Public Prosecutions

THE COURT:

The applicant pleaded guilty to one charge of recklessly causing serious injury, one charge of false imprisonment and one charge of making a threat to kill. He was sentenced in the County Court on 2 February 2017[1] as follows:
[1]DPP v Nolan [2017] VCC 34 (‘Sentencing Reasons’).

Charge on

Indictment
Offence Maximum Sentence Cumulation

1
Recklessly Causing Serious Injury

[s 17 Crimes Act 1958]

15 years

[s 17 Crimes Act 1958]
6 years Base

2
False Imprisonment

[Common Law]

10 years

[s 320 Crimes Act 1958]
2 years 1 year

3
Making a Threat to Kill

[s 20 Crimes Act 1958]

10 years

[s 20 Crimes Act 1958]
2 years 1 year

Total Effective Sentence 8 years

Non-Parole Period: 5 years 6 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 222 days

6AAA Statement: 10 years with a non-parole period of 7 years

Other relevant orders: Forensic Sample Order pursuant to s.464ZF Crimes Act 1958;

Disposal Order.

The applicant was refused leave to appeal against sentence by a single judge of appeal[2] but renewed the application for leave pursuant to s 315(2) of the Criminal Procedure Act 2009.

Circumstances of the offending[3]

[2]Shannon Nolan v The Queen [2017] VSCA 97 (‘Appeal Reasons’).

[3]The circumstances of the offending are set out in Exhibit 1 – Summary of Prosecution Opening for a Plea. They are also set out in Sentencing Reasons [6]-[18] and Appeal Reasons [3]-[18].

At the time of the offending, the applicant resided at the Riverglen Caravan Park (‘the caravan park’) with his de facto partner of eight years (the victim) and their two young children. The applicant and the victim were both 23 years of age at the time of the offending, and their children were aged four and five.

At about midday on 24 June 2016, the applicant, the victim and…

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 Nolan v The Queen

Details

AGLC: Nolan v The Queen [2017] VSCA 240
Case: [2017] VSCA 240
Decision Date: 6 September 2017

CaseChat Overview and Summary

The case of Nolan v The Queen involved a 23-year-old offender who pleaded guilty to charges including recklessly causing serious injury, false imprisonment, and making threats to kill against his domestic partner. The incident occurred in the presence of their children and led to the offender being sentenced to a total effective term of eight years' imprisonment with a non-parole period of five years and six months. The offender challenged the severity of the sentence, arguing that the principles related to youthful offenders should have been applied, given his age at the time of the offence. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inappropriate, considering the offender's age and other relevant sentencing factors. The court was required to determine if the trial judge had appropriately balanced the circumstances of the offence and the offender's prospects of rehabilitation. The offender's counsel argued that the sentence was too harsh, while the prosecution maintained that the sentence was justified given the severity of the crimes committed.

In delivering the judgment, the court held that the trial judge had taken all relevant sentencing factors into account and balanced them appropriately. The court noted that the offender had a significant criminal history and that the judge had assessed his prospects of rehabilitation as 'cloudy'. The court found that the sentence was not manifestly excessive, as it had appropriately reflected the gravity of the offences and the need to protect the community. The court also referred to previous case law, including Azzopardi v The Queen, to support its reasoning. The appeal was dismissed.

The court's final orders confirmed the sentence imposed by the trial judge, upholding the total effective sentence of eight years' imprisonment with a non-parole period of five years and six months. The offender's appeal against the sentence was therefore dismissed. The decision underscores the importance of considering all relevant factors, including the offender's age, criminal history, and prospects of rehabilitation, when determining an appropriate sentence.

Orders