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R v Nolan

R v Nolan

Case [2017] NSWCCA 91 10 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Nolan [2017] NSWCCA 91
Hearing dates: 24 April 2017
Date of orders: 10 May 2017
Decision date: 10 May 2017
Before: Hoeben CJ at CL at [1];
Price J at [2];
Fullerton J at [98]
Decision:
(1) Crown appeal allowed.
(2) Sentence imposed in the District Court of New South Wales on 6 December 2016 is quashed.
(3) In lieu therefore, the respondent is sentenced to imprisonment for 15 years 3 months consisting of a non-parole period of 11 years 6 months commencing on 24 October 2014 and expiring on 23 April 2026, with a balance of term of 3 years 9 months commencing on 24 April 2026 and expiring on 23 January 2030.
(4) The earliest date that the respondent will be eligible to be released on parole is 23 April 2026.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – one count of causing grievous bodily harm with intent – whether offence fell into worst category – whether error in finding of objective seriousness in high range – whether sentence manifestly inadequate – life threatening injuries inflicted on 7 month old with consequent severe disabilities – need for general deterrence – sentence manifestly inadequate – whether residual discretion should be exercised – re-sentence
Legislation Cited: Crimes Act 1900, s 33(1)(b)
Criminal Appeal Act 1912, s 5D
Crimes (Sentencing Procedure) Act 1999, ss 2(k), 2(l), 21A(2)(g), 21A(2)(ib), 21A(3)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney General for New South Wales (2015)256 CLR 346; [2015] HCA 9
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Little v R [2010] NSWCCA 210
Lowndes v The Queen (1999) 195 CLR 655; [1999] HCA 29
R v Barker [2016] NSWCCA 193
R v Kilic (2016) 339 ALR 229; [2016] HCA 48
R v Mitchell, R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unrep)
Category: Principal judgment
Parties: Regina (Applicant)
Andrew John Nolan (Respondent)
Representation:
Counsel:
Mr E Balodis (Applicant)
Ms M Avernell (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Fourtree Lawyers (Respondent)

File Number(s): 2014/00311870003
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 December 2016

Before:

Ingram SC DCJ

File Number(s):

2014/00311870003

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. I particularly endorse his Honour’s observation at par [72] of the judgment.
PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Andrew John Nolan (“the respondent”) by Ingram SC DCJ (“the judge”) on 8 December 2016. The notice…

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 Nolan

Details

AGLC: R v Nolan [2017] NSWCCA 91
Case: [2017] NSWCCA 91
Decision Date: 10 May 2017

CaseChat Overview and Summary

The appeal before the Court was brought by the Crown against the sentence imposed on Nolan, who was convicted of causing grievous bodily harm with intent to a seven-month-old child. The severe injuries inflicted resulted in significant lifelong disabilities for the victim. The Court of Appeal was tasked with determining whether the original sentence was manifestly inadequate and if the sentencing judge erred in assessing the objective seriousness of the crime.

The key legal issues centred on the classification of the offence, the assessment of the objective seriousness of the crime, and the adequacy of the sentence imposed. The Crown argued that the offence fell into the worst category, that the sentencing judge had erred in assessing the objective seriousness in the high range, and that the sentence was manifestly inadequate. They further contended that the need for general deterrence and the residual discretion of the Court should be considered in determining an appropriate re-sentence.

The Court of Appeal found that the original sentence was indeed manifestly inadequate. The grievous nature of the injuries and the long-term impact on the victim warranted a sentence that reflected the seriousness of the crime. The Court held that the sentencing judge had erred in assessing the objective seriousness of the offence in the high range rather than the worst category. Given the life-threatening injuries and the severe disabilities resulting from the attack, the Court considered it necessary to exercise its residual discretion to impose a sentence that adequately reflected the gravity of the offence and served the purposes of general deterrence. Consequently, the Court varied the sentence, imposing a term of imprisonment with a non-parole period that better aligned with the severity of the crime.

Orders