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R v Nobile

R v Nobile

Case [2006] VSCA 211 10 October 2006

Handling Stolen Goods

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 338 of 2005

THE QUEEN
	v.
DAMIEN MARK NOBILE

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JUDGES:	NETTLE, J.A., COLDREY and BELL, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2006
DATE OF JUDGMENT:	10 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 211	1^st Revision 11 October 2006

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Criminal law – Sentencing – First presentment – 8 counts including – Multiple counts of burglary – Obtaining property by deception – Theft – Aggravated burglary – Attempted burglary – Handling stolen goods.

Second presentment – Multiple counts including – Reckless conduct endangering life – Using a firearm to resist arrest – Kidnapping – Using a firearm in the commission of an indictable offence – Recklessly causing injury – Common assault – Whether sentence manifestly excessive – Whether judge erred in cumulation and principle of totality – Prospects of rehabilitation bleak – Whether total sentence of twelve years with a non-parole period of nine years is “crushing” – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M.G. O’Connell	Robert Stary and Associates

NETTLE, J.A.:

I have had the considerable advantage of reading in draft the reasons for judgment of Coldrey, A.J.A. and with respect I agree with his Honour that the appeal should be dismissed. I add the following observations.

Ground: Cumulation

I do not consider that the judge was in error in cumulating parts of the sentences imposed on the Counts preferred under the first presentment on the base sentence imposed under the second presentment.

Whatever the reach of the rule in Nikodjevic,[1] it does not apply, as such, to a case like the present where the sentencing judge must sentence a prisoner on a multiplicity of counts preferred under several presentments. To the contrary, in such a case it accords with the logic of the rule in Nikodjevic for the sentencing judge to do what the judge did in this case: by taking as the base sentence the largest sentence imposed, whichever be the presentment under which that count has been preferred, and then cumulating upon it other sentences imposed in respect of counts preferred under the same presentment and then other sentences imposed in respect of counts preferred under the other presentments, in order ultimately to produce an aggregate total effective sentence for all presentments.
[1][2004] VSCA 222 esp. at [37].

So to say is not to imply that there may not be other ways in which the exercise might be undertaken. Another possible technique would be to deal with each presentment separately, taking a base sentence under each presentment and cumulating upon it the other sentences or parts of other sentences imposed under the same presentment, in order to produce a total effective sentence for each presentment, and then taking the largest of those and adding to it the others or parts of the others as the occasion dictates.

As Coldrey, A.J.A. observes, it may have…

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 R v Nobile

Details

AGLC: R v Nobile [2006] VSCA 211
Case: [2006] VSCA 211
Decision Date: 10 October 2006

CaseChat Overview and Summary

The appellant, Mr Nobile, appealed against his sentences following his convictions on two presentments. The first presentment contained eight counts including multiple counts of burglary, obtaining property by deception, theft, aggravated burglary, attempted burglary, and handling stolen goods. The second presentment contained multiple counts including reckless conduct endangering life, using a firearm to resist arrest, kidnapping, using a firearm in the commission of an indictable offence, recklessly causing injury, common assault, and other related offences. The appellant submitted that the sentence was manifestly excessive, that the judge had erred in the application of the principle of totality and in the cumulation of sentences, and that the prospects of rehabilitation were bleak. The appellant submitted that the total sentence of twelve years with a non-parole period of nine years was “crushing”.

The primary issue for the court to determine was whether the sentence imposed by the trial judge was manifestly excessive. A secondary issue was whether the trial judge erred in his application of the principle of totality and in the cumulation of sentences. The court was also required to consider whether the prospects of rehabilitation were bleak and whether the sentence was “crushing”.

The court held that the sentence was not manifestly excessive, nor had the trial judge erred in his application of the principle of totality or in the cumulation of sentences. The court found that the appellant’s offending was serious and violent in nature, and that the sentence was not disproportionate to the offending. The court also found that the prospects of rehabilitation were bleak, but held that this did not render the sentence manifestly excessive. The court rejected the appellant’s submission that the sentence was “crushing”, and dismissed the appeal.

Orders