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R v Nolan

R v Nolan

Case [2009] QCA 129 22 May 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nolan [2009] QCA 129

PARTIES:

R
v
NOLAN, Luke Justin
(applicant)

FILE NO/S:

CA No 256 of 2008
DC No 146 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2009

JUDGES:

Fraser and Chesterman JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal and allow the appeal.

2.   Vary so much of the sentence in the District Court as imposed concurrent terms of imprisonment of five years for the three offences charged in the indictment by substituting concurrent terms of four years and three months imprisonment.

3.   The order activating the suspended term of imprisonment of 18 months is confirmed, but vary the order that the activated term of imprisonment be served concurrently with the five year terms by substituting an order that the activated term of imprisonment be served concurrently with the concurrent four years and three months terms of imprisonment.

4.   State that the applicant was held in pre-sentence custody for a period of 170 days between 23 April 2007 and 9 October 2007 in relation to proceedings for the offences and for no other reason, declare that no time is to be taken to be imprisonment already served under the sentence imposed in the District Court as varied by these orders, and direct that the Chief Executive (Corrective Services) be advised in writing of that declaration and its details.

5.   In all other respects, confirm the sentences and orders made in the District Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by a jury of assault occasioning bodily harm in company, burglary and unlawful use of a motor vehicle – where applicant had an extensive criminal history and committed these offences on the day he was released from prison – where applicant sentenced to concurrent terms of five years imprisonment for each offence – where 18 month suspended sentence also activated and ordered to be served concurrently with five year terms – where 170 days in pre-sentence custody not declared to be time already served – whether four to five years imprisonment was within the range of sentences for the home invasion offences – whether the suspended sentence should have been ordered to be served cumulatively with the five year concurrent terms – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A(1), s 159A(3B)

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Blenkinsop; R v Blenkinsop[2007] QCA 181, distinguished
R v Fleming[2009] QCA 112, considered
R v Frazer[1997] QCA 306,…

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 [2009] QCA 129
Case: [2009] QCA 129
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the case of R v Nolan, the applicant was convicted by a jury of assault occasioning bodily harm in company, burglary and unlawful use of a motor vehicle. The applicant had a significant criminal history and committed these offences on the day he was released from prison. The District Court sentenced the applicant to concurrent terms of five years imprisonment for each offence, and also activated an 18-month suspended sentence to be served concurrently with the five-year terms. Additionally, 170 days in pre-sentence custody were not declared to be time already served. The applicant appealed against the sentence, arguing that it was manifestly excessive or inadequate.

The legal issues before the court were whether the four to five years imprisonment was within the range of sentences for the home invasion offences, whether the suspended sentence should have been ordered to be served cumulatively with the five-year concurrent terms, and whether the sentence was manifestly excessive. The court needed to determine if the District Court had erred in its sentencing process and whether the sentence imposed was appropriate in the circumstances.

The court found that the District Court had erred in failing to order that the activated term of imprisonment be served cumulatively with the concurrent terms of imprisonment. It was also found that the sentence was manifestly excessive, as the District Court had not taken into account the 170 days of pre-sentence custody in calculating the sentence. The court varied the sentence to concurrent terms of four years and three months imprisonment for the three offences charged, and ordered that the activated term of imprisonment be served concurrently with these terms. The court further declared that no time was to be taken as imprisonment already served under the sentence, and directed that the Chief Executive (Corrective Services) be advised of this declaration.

The final orders of the court were to grant the application for leave to appeal, allow the appeal, vary the sentence as outlined above, confirm the activation of the suspended term of imprisonment, and in all other respects, confirm the sentences and orders made in the District Court.

Orders

Orders of the court

1. Grant the application for leave to appeal and allow the appeal.

2. Vary so much of the sentence in the District Court as imposed concurrent terms of imprisonment of five years for the three offences charged in the indictment by substituting concurrent terms of four years and three months imprisonment.

3. The order activating the suspended term of imprisonment of 18 months is confirmed, but vary the order that the activated term of imprisonment be served concurrently with the five year terms by substituting an order that the activated term of imprisonment be served concurrently with the concurrent four years and three months terms of imprisonment.

4. State that the applicant was held in pre-sentence custody for a period of 170 days between 23 April 2007 and 9 October 2007 in relation to proceedings for the offences and for no other reason, declare that no time is to be taken to be imprisonment already served under the sentence imposed in the District Court as varied by these orders, and direct that the Chief Executive (Corrective Services) be advised in writing of that declaration and its details.

5. In all other respects, confirm the sentences and orders made in the District Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Nolan [2009] QCA 129

Most Recent Citation

R v Honeysett; ex parte [2010] QCA 212

Cases citing this decision · 8 of 8 shown

R v TBD
[2024] QCA 182 Para 5

…downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.” [47] R v Nolan [2009] QCA 129, [22]. [48] Postiglione v The Queen (1997) 189 CLR 295, 308. [49]Ibid, 308.…
Dickson v State of Tasmania
[2024] TASSC 24

…C 151 Braslin and Cohen v Tasmania [2010] TASCCA 1 Tanner v Brown [2011] TASSC 59 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Nolan [2009] QCA 129 Kaya v The Queen [2014] VSCA 55 Gill v The Queen [1990] TASSC 37…
R v Volante
[2021] QCA 109 Para 24

…The applicant in R v Nolan [2009] QCA 129 was convicted after a trial of burglary, assault occasioning bodily harm in company and unlawful use of a motor vehicle.…
Young v Wilson
[2015] TASSC 16 Para 1

…ntence resulting in the activation of the suspended sentence, and the imposition of a sentence for the new offence constituting the breach: R v Nolan [2009] QCA 129; Kaya v The Queen [2014] VSCA 55 at [19]–[21] per Neave and Weinberg JA. The legislative scheme for breach proceedings in Tasmania, like other jurisd…
R v Lacey
[2013] QCA 292 Para 1

…bbery convictions warranted declarations that they were convictions of serious violent offences: R v McDougall and Collas .[12] [8][2012] QCA 164. [9][2009] QCA 129. [10][2008] QCA 201. [11][2003] QCA 553. [12][2007] 2 Qd R 87.…
R v Kissier
[2011] QCA 223 Para 1

…Some assistance is obtained from R v Nolan [2009] QCA 129 where a 21 year old offender was convicted after trial for one count of assault occasioning bodily harm in company, burglary and unlawful use of a motor vehicle. He had a concerning criminal history and committed the offence on the day he was released from…
R v Baker
[2011] QCA 104 Para 1

…The totality principle has also been applied recently in this court. In R v Nolan [2009] QCA 129, the appellant was convicted of assault occasioning bodily harm, burglary and unlawful use of a motor vehicle and sentenced to concurrent terms of five years imprisonment for each offence. An 18 month suspended senten…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…e complainant’s eye socket and a subarachnoid haemorrhage. The home invasion aspect of this offence was of particular concern.[1] [1] R v Nolan [2009] QCA 129.…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Fleming
[2009] QCA 112 Para 1

…or that proposition the applicant’s counsel cited R v Granato [2006] QCA 25; R v Frazer [1997] QCA 306; R v Ramm [2008] QCA 13; and R v Fleming [2009] QCA 112.…
R v Leu; R v Togia
[2008] QCA 201 Para 1

…ext of the particular facts of this case. That conclusion is consistent also with the analysis of numerous comparable decisions in R v Leu; R v Togia [2008] QCA 201, in which the Court set aside sentences of five years imprisonment for home invasion offences in which the offenders were armed. Accordingly it is ne…
R v Ramm
[2008] QCA 13 Para 1

…ars imprisonment was imposed. For that proposition the applicant’s counsel cited R v Granato [2006] QCA 25; R v Frazer [1997] QCA 306; R v Ramm [2008] QCA 13; and R v Fleming [2009] QCA 112.…
R v Blenkinsop
[2007] QCA 181 Para 1

…Counsel for the respondent relied particularly upon R v Frazer (upon which the applicant also relied) and R v Blenkinsop [2007] QCA 181 for the proposition that the sentence was towards the top end of the sentencing range but within it. In both cases young offenders with very serious criminal histories committed…
R v Granato
[2006] QCA 25 Para 1

…t where a term of imprisonment as severe as five years imprisonment was imposed. For that proposition the applicant’s counsel cited R v Granato [2006] QCA 25; R v Frazer [1997] QCA 306; R v Ramm [2008] QCA 13; and R v Fleming [2009] QCA 112.…
R v Frazer
[1997] QCA 306 Para 1

…ment as severe as five years imprisonment was imposed. For that proposition the applicant’s counsel cited R v Granato [2006] QCA 25; R v Frazer [1997] QCA 306; R v Ramm [2008] QCA 13; and R v Fleming [2009] QCA 112.…
Postiglione v the Queen
[1997] HCA 26

…s 159A(1), s 159A(3B) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Blenkinsop; R v Blenkinsop [2007] QCA 181, distinguished R v Fleming [2009] QCA 112, considered R v Frazer [1997] QCA 306, distinguished R v Granato [2006] QCA 25…
Mill v The Queen
[1988] HCA 70

…ntence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(1), s 159A(3B) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Blenkinsop; R v Blenkinsop [2007] QCA 181, distinguished R v Fleming [2009] QCA 112, considered…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
159A(1) 2 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
1 mention (from Para 1)

CITATION:	R v Nolan [2009] QCA 129
PARTIES:	R v NOLAN, Luke Justin (applicant)
FILE NO/S:	CA No 256 of 2008 DC No 146 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	22 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2009
JUDGES:	Fraser and Chesterman JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal and allow the appeal. 2. Vary so much of the sentence in the District Court as imposed concurrent terms of imprisonment of five years for the three offences charged in the indictment by substituting concurrent terms of four years and three months imprisonment. 3. The order activating the suspended term of imprisonment of 18 months is confirmed, but vary the order that the activated term of imprisonment be served concurrently with the five year terms by substituting an order that the activated term of imprisonment be served concurrently with the concurrent four years and three months terms of imprisonment. 4. State that the applicant was held in pre-sentence custody for a period of 170 days between 23 April 2007 and 9 October 2007 in relation to proceedings for the offences and for no other reason, declare that no time is to be taken to be imprisonment already served under the sentence imposed in the District Court as varied by these orders, and direct that the Chief Executive (Corrective Services) be advised in writing of that declaration and its details. 5. In all other respects, confirm the sentences and orders made in the District Court.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by a jury of assault occasioning bodily harm in company, burglary and unlawful use of a motor vehicle – where applicant had an extensive criminal history and committed these offences on the day he was released from prison – where applicant sentenced to concurrent terms of five years imprisonment for each offence – where 18 month suspended sentence also activated and ordered to be served concurrently with five year terms – where 170 days in pre-sentence custody not declared to be time already served – whether four to five years imprisonment was within the range of sentences for the home invasion offences – whether the suspended sentence should have been ordered to be served cumulatively with the five year concurrent terms – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(1), s 159A(3B) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Blenkinsop; R v Blenkinsop[2007] QCA 181, distinguished R v Fleming[2009] QCA 112, considered R v Frazer[1997] QCA 306,…