Shannon Nolan v The Queen - [2017] VSCA 97

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0031

SHANNON NOLAN	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 97
JUDGMENT APPEALED FROM:	DPP v Nolan [2017] VCC 34 (Judge Coish)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Cause serious injury recklessly – False imprisonment – Making a threat to kill – Total effective sentence of eight years’ imprisonment – Non-parole period of five years and six months – Specific error – Principles applicable to youthful offenders did not apply – Manifest excess – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Victoria Legal Aid
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Shannon Nolan (‘Nolan’), applies for leave to appeal against sentence.

Nolan pleaded guilty to one charge of recklessly causing serious injury, one charge of false imprisonment and one charge of making a threat to kill. He was sentenced in the County Court on 2 February 2017 as follows:[1]
[1]DPP v Nolan [2017] VCC 34 (‘Sentencing reasons’).

Charge Offence Maximum Penalty Sentence Cumulation

1 Causing serious injury recklessly 15 years’ imprisonment 6 years’ imprisonment Base

2 False imprisonment 10 years’ imprisonment 2 years’ imprisonment 1 year

3 Making a threat to kill 10 years’ imprisonment 2 years’ imprisonment 1 year

Total effective sentence 8 years’ imprisonment

Non-parole period 5 years and 6 months

Pre-sentence detention declared 222 days

6AAA statement 10 years’ imprisonment with a non-parole period of 7 years

Other orders Forensic sample order. Disposal order concerning broom used during offending
Circumstances of the offending[2]

[2]The circumstances of the offending has been summarised from: Sentencing reasons [6]–[18] and Exhibit 1 – Summary of Prosecution Opening for a Plea.

At the time of the offending, Nolan had been living in a de facto relationship with the victim for approximately eight years. He lived with the victim and their two young children in a cabin at Riverglen Caravan Park. Nolan and the victim were both aged 23 and their children were aged five and four.

At about midday on 24 June 2016, Nolan and the victim and their two children caught a taxi from the caravan park to Belmont Shopping Village and purchased alcohol from Liquorland. On their return to the caravan park, the taxi driver referred to Nolan as ‘a junkie alcoholic’. Nolan was enraged by this and he repeatedly asked the victim to complain to the taxi company.

While the victim was on the phone to the taxi company and the family was in a park opposite the caravan park, Nolan forced the victim into some bushes and punched her to the chin and lip.

Later that day, the family…

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 Shannon Nolan v The Queen

Details

AGLC: Shannon Nolan v The Queen [2017] VSCA 97
Case: [2017] VSCA 97
Decision Date: 3 May 2017

CaseChat Overview and Summary

The appellant, Shannon Nolan, was convicted of various serious offences including causing serious injury recklessly, false imprisonment, and making a threat to kill. The matter was brought before the court for an application for leave to appeal against the sentence imposed. The court was tasked with determining whether the sentence was manifestly excessive, and whether the principles applicable to youthful offenders should have been considered in the sentencing process. The appellant argued that the total effective sentence of eight years' imprisonment, with a non-parole period of five years and six months, was manifestly excessive and should be reduced.

The central legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive, warranting an intervention by the court. Additionally, the court had to consider whether the principles applicable to youthful offenders should have influenced the sentencing decision. The appellant submitted that the sentence was manifestly excessive and should be reduced, while the respondent, the Crown, argued that the sentence was within the appropriate range and did not warrant any intervention.

The court found that the sentence imposed was not manifestly excessive, noting that it was within the appropriate range for the offences committed. The court also determined that the principles applicable to youthful offenders did not apply in this case, as the appellant was over the age of 21 at the time of sentencing. The court held that the sentence was proportionate to the seriousness of the offences, and did not constitute a manifest excess. Consequently, the application for leave to appeal was refused, and the original sentence was upheld.

No further orders were made by the court. The sentence of eight years' imprisonment, with a non-parole period of five years and six months, remains in effect.

Orders