R v Nolan

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.