R v Noonan - [2007] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 29 of 2006
THE QUEEN	v
MICHAEL DUANE NOONAN

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JUDGES:	BUCHANAN, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2007
DATE OF JUDGMENT:	30 January 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 5

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Criminal Law – Sentencing – Stalking – Arson – Reckless conduct endangering persons – Appellant sentenced to 13 years with a non-parole period of 10 years – Whether sentence crushing and manifestly excessive – Whether judge gave sufficient weight to appellant’s medical condition and totality – Sentencing discretion re-opened and appellant re-sentenced to 11 years with a non-parole period of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Leanne Warren & Associates

BUCHANAN JA:

I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

On 29 April 2005 the appellant pleaded guilty before the County Court at Melbourne to two counts of stalking (Counts 1 and 2), two counts of arson (Counts 3 and 4) and one counts of reckless conduct endangering persons (Count 5) and, following a plea in mitigation, he was sentenced on each of Counts 1 and 2 to a term of imprisonment of 18 months, on Count 3 to a term of imprisonment of eight years, on Count 4, on which he was sentenced as a serious arson offender, to a term of imprisonment of seven years, and on Count 5 to a term of imprisonment of three years. The judge directed that nine months of the sentence imposed on Count 1, nine months of the sentence imposed on Count 2, three years of the sentence imposed on Count 4 and one year of the sentence imposed on Count 5 be served cumulatively on the sentence imposed on Count 3 and on each other, thus making for a total effective sentence of 13 years and six months’ imprisonment, and set a non-parole period of 10 years.

The appellant now appeals with leave against the sentence on grounds that the judge gave too little weight to the appellant’s medical condition and too much weight to the risk of the appellant re-offending; that the judge failed to give weight to the fact that the appellant would serve the sentence in protective custody; and that the sentence is manifestly excessive and offends against the principle of totality.

The facts are not in dispute. The appellant was born on 24 November 1942 and, at the time of the offences in August 2004, he was 61 years of age. He had separated from his wife, Ms Bernadette Nixon, in 1996 and they had divorced in 1998. The three children of the marriage, Justin and Jonathan (at the time of the offending both aged 17 years) and Rhiannon (then aged 16 years) lived with Ms Nixon at the family home in an eastern suburb of Melbourne. An intervention order granted on 31 January 2002 prohibited…

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 Noonan

Details

AGLC: R v Noonan [2007] VSCA 5
Case: [2007] VSCA 5
Decision Date: 30 January 2007

CaseChat Overview and Summary

The case of R v Noonan involved an appeal against the severity of a sentence imposed on the appellant, who had been convicted of stalking, arson, and reckless conduct endangering persons. The case was heard by the Court of Appeal. The appellant argued that the original sentence of 13 years with a non-parole period of 10 years was excessive and did not adequately consider his medical condition and the principle of totality.

The legal issues before the court included whether the original sentence was manifestly excessive, whether the trial judge had adequately considered the appellant’s medical condition, and whether the judge had appropriately applied the principle of totality in sentencing. Additionally, the court considered whether the sentencing discretion should be re-opened to allow for a re-sentencing of the appellant.

The court found that the original sentence was indeed crushing and manifestly excessive, particularly as it did not sufficiently consider the appellant's medical condition or the principle of totality. The court observed that the trial judge had not given adequate weight to the appellant's medical issues and the need to balance these with the seriousness of the offences. The Court of Appeal exercised its discretion to re-open the sentencing process, ultimately re-sentencing the appellant to 11 years with a non-parole period of 8 years. This new sentence was deemed to be more proportionate and reflective of all relevant considerations.

Orders