R v Nolan

[1994] QCA 572

[1994] QCA 572

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

McPHERSON JA

CA No 382 of 1994
THE QUEEN
v.

EDWARD NOLAN Applicant

BRISBANE
..DATE 23/11/94
THE CHIEF JUSTICE: The applicant seeks leave to appeal
against sentence on four counts in respect of which he had
been sentenced to 18 months custodial terms. He had at the
same time been sentenced on two other counts to a concurrent
six month term of imprisonment, but no application is made to
this Court in respect of those last two matters.

The offences with which we are concerned occurred in the case of two of them in dates early in December of 1993 and in respect of the further two on a specified date in December, that is 7 December. The offences were, three counts of receiving stolen property and one of unlawful possession of a motor vehicle with a circumstance of aggravation.

The circumstances are described as these. On 7 December 1993 police went to the residence where the applicant was living for the purpose of carrying out a drug search and there they found certain items which had been stolen. There was a doona blanket and a cover under the applicant's bed and also a camera was found in a cupboard in the bedroom. Those are the facts the Crown resume says relating to the two receiving charges and that statement appears to be accurate.

At the same time and at the same place the police noticed a Yamaha motorcycle parked at the rear of the house. The applicant, after an investigation, admitted joint possession of that cycle which had been stolen. A stolen number plate had been put on it. That was the basis for the third receiving charge and the unlawful possession charge was

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involved also in respect of the applicant's actions in respect
of that stolen motorcycle.

The Judge, in sentencing, felt obliged to treat the matter with some seriousness. The applicant had previous criminal convictions. He was a 22 year old but his criminal history started in September of 1989. The early offences appearing on his record may not have been serious. It seems reasonable to adopt that attitude. The first one was an offence of behaving in an indecent manner where bail was forfeited. Then there was an unlawful assault in December again of 1989 but that resulted in an order that the applicant be placed on probation and perform certain community service.

The next offence appearing in the record is one where there was a conviction on 1 November 1993, although it was ordered that the conviction not be recorded. That was an offence of demanding money by threats. Community service was ordered to be performed in that case in a total of 240 hours.

In the same month, that is November 1993, he was convicted and fined for possession of property suspected of being stolen or unlawfully obtained. Then we see in the history sheet breaches of the Bail Act and breaches of community service order or orders referred to.

The sentencing Judge said that although he was dealing with a young person they were serious matters before him. The Judge reached the conclusion that the applicant should be imprisoned. He regarded that conclusion as inevitable in all of the circumstances of the case. He noted that the applicant was, in any event, in prison at the time that he was dealing with him. He imposed a custodial term of 18 months and the objection which counsel for the applicant takes to this is that, as it has to be on an application like this, that it was a term which was manifestly excessive.

However, counsel appearing for the applicant concedes in the course of presenting his outline of argument and speaking to it, that a 12 month term would have been appropriate. The Judge took into account the guilty plea it was obvious enough and recorded the periods of time that the applicant had already spent in custody, doing that for the purposes of the Penalties and Sentences Act. The applicant had in fact, because of his criminal behaviour and failures to comply with Court orders, been in prison from 28 April 1994. This was due to his breach of the Bail Act, breach of community service orders and from 18 August on it was due to his having been resentenced for the demanding money by oral threats offence to which I have already referred.

It does not appear to me that it can be said that the sentence which the Judge imposed in September of 1994, that is the effective sentence with which we concerned, can be described as manifestly excessive or can be regarded as calling for the interference of this Court. The submission made on his behalf was a difficult one to sustain in my view because it calls upon this Court to make a fine distinction which cannot in fairness, in my view, be made having in mind the discretion which undoubtedly was called on to be exercised by the sentencing Judge. I would refuse the application.

DAVIES JA: I agree.

McPHERSON JA: I think it is worth adding to what has been said by his Honour, the Chief Justice, that in addition to the three receiving and one possession offences now under appeal or sought to be brought under appeal, the District Court Judge on the occasion in question also sentenced the applicant to a term of six months imprisonment for two offences of assaulting a police officer in the execution of his or her duty.

The sentence of six months in that instance was made concurrent with the 18 months sentence sought to be brought under appeal. It is well established by decisions of this Court and by general principles of sentencing that in considering an appeal or an application for leave to appeal, in a case of this kind, one should look at the effective sentence overall.

The result is, in this case, that the applicant has been given an effective sentence of 18 months for all of the offences to which I have referred. The other two, it is worth recording, arose in this way, that police officers tried to intercept a car containing some persons including the applicant, who was a passenger in it. After some distance the car pulled over, the applicant got out of the passenger side and tried to mount a fence. He was unsuccessful and was ultimately cornered by the police. He became aggressive and abusive towards the police.

He had an object in his hand, with which he lunged at a woman

police officer, which narrowly missed her as she moved behind
a tree. That object was later found to be a plastic syringe
with an orange cap on the top. The applicant then ran at the
male police officer and collided with him and the two fell to

the ground, the police officer sustaining some minor bruising.

The applicant then ran off but was chased and restrained.

When one looks at the matter in the light of all the offences with which the effective sentence had to deal, there is, in my view, no possibility of saying that the sentence imposed in this instance was manifestly excessive. I agree with the order proposed by the Chief Justice.

THE CHIEF JUSTICE: The application is refused.

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