Shannon Nolan v The Queen
[2017] VSCA 97
•3 May 2017
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 walked back to Liquorland to purchase more alcohol as the taxi company had banned them from ordering taxis. Upon their return to the cabin, Nolan forced the victim to make calls to the taxi company and to lawyers for advice on what he could do about being called ‘a junkie alcoholic’ by the taxi driver. During these phone calls, he began to punch and kick the victim.
Nolan continued to punch and kick the victim and then hit her over the head with a broom, the force of which caused the broom head to snap off. The victim’s head starting bleeding and she sought refuge in the shower. By that time it was approximately 4:00 pm.
Nolan then threw a kettle of boiling water over the victim. She was able to protect herself from the boiling water, to a certain extent, by holding a jacket over herself, but the water splashed on her skin. Nolan whipped the victim with the cord to the kettle, a phone charger and the cord to a blow-up mattress. At some stage, he also bit her on the back, both of her forearms and her left calf.
While the victim was assaulted in the shower, one of the children yelled at him to stop and the other hid under the kitchen table.
The victim then attempted to flee the cabin. Nolan had blocked the way out with a couch, and as the victim shoved it out of the way, Nolan grabbed her by the right arm and right leg and said: ‘You’re fucking stupid, you think you’re going to get out, you’ll never get out’.
The victim sat on the children’s bed and watched Nolan heat up a pot of water on the stove. Once the water boiled, Nolan threw it over the victim, hitting her back.
Nolan then proceeded to heat sugar and water on the stove. He instructed the victim to sit on the toilet and rub salt into the cut on her lip. She refused and moved into the shower where Nolan poured the contents of the salt container over her head and rubbed the salt into the cuts on her scalp. He returned with black and white pepper and threw that on her. Nolan instructed her to get out of the shower and poured a container of curry powder over her. While she was covered in the powder he told her not to have a shower and that: ‘This is the end Jess, you knew it was coming, you’re going to die, if Police come, you will be dead by the time they get here, I will stab you to death’.
Nolan showed the victim a spoonful of the boiling sugar and told her to wait while he checked his phone. The victim then ran from the bathroom, grabbed a knife from the kitchen sink to defend herself and ran out the front door. She escaped into a nearby cabin, where she hid while Nolan yelled out to her in the caravan park. Multiple residents called the police.
The couple’s two young children were located in the cabin by police. They were in an extremely distressed state. When they were asked what happened one of the children said to the police, ‘Daddy tried to kill Mummy.’
After initially hiding from the police, Nolan was arrested at approximately 7:40 pm.
The victim was treated at the Geelong Hospital that day for the following injuries:
·Large haematoma to forehead/eyebrow – 8 x 4cm;
·7 x 1-2 cm wounds to scalp;
·Fractured nose;
·Full thickness wound to upper lip;
·Whip-like marks to the back;
·Full thickness wound to pulp of right index finger;
·Multiple bruises to fingers;
·Bruising to forearms; and
·Haematoma to left leg.
She required five sutures to her lip and tissue glue for her finger. She refused further treatment to her head due to pain.
On 19 and 26 September 2016, the victim was assessed at Plantation Medical Clinic where the following notes about her were made:
·Reports headaches with a focus on her right forehead occurring every 2-3 days;
·Right forehead with firm swelling 1 cm above middle 1/3 of brow;
·Multiple lesions consistent with recent scarring to the crown, chin, arms and legs; and
·Well-healed scar over base of right scapula, skin lesion on left side of back approximately 2 cm long in ’U’ pattern extending approximately 1 cm linearly, flat brown pigmented skin lesion over right of back.
The judge’s reasons
After describing the offending, the sentencing judge noted the following matters in mitigation:
You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty at an early stage. You co-operated with authorities and, as I have already stated, made partial admissions in your record of interview. I accept on all the material before me that you are genuinely remorseful.[3]
[3]Sentencing reasons [19].
His Honour then went on to describe Nolan’s personal circumstances including that he was 23 years of age, unemployed, had had a ‘disrupted and dysfunctional childhood’, and had been on remand since his arrest on 24 June 2016.[4]
[4]Ibid [20].
The judge noted that Nolan was homeless for a while before moving in with the victim’s parents and commencing a long relationship with the victim. Nolan was described as ‘barely literate’ with a very limited work history. The judge noted that Nolan had engaged in long-term and heavy use of alcohol and cannabis, and had an addiction to ‘ice’ since late 2015.[5]
[5]Ibid [21].
A psychiatrist’s report and a psychologist’s report were taken into account. The psychiatrist met with Nolan on three occasions prior to the offending and diagnosed him as ‘suffering from social phobia, bipolar disorder Type 2, cannabis abuse, and borderline personality traits’.[6] A management plan involving medication and treatment was drawn up but not followed.
[6]Ibid [22].
The psychologist assessed Nolan at the request of his solicitors in January 2017. He reported that:
Overall Mr Nolan impressed me as a man with impairment to his capacity to act with generally good judgement. He presented with a significant history of drug and alcohol dependence, anti-social features in his personality and living on the fringes of the community. He expressed little insight into his offending behaviour and general psychological function.[7]
[7]Ibid [26].
The judge remarked that the psychologist had found Nolan ‘presented as functionally illiterate, innumerate and as a generally low functioning adult’.[8]
[8]Ibid [24].
In reference to this mental impairment, his Honour held that the Verdins[9] principles did not apply as there was no causal link between the mental impairment and the offending.[10] Nonetheless, the judge stated that he had taken the psychiatrist’s report and the psychologist’s report into account ‘in a general sense as part of [Nolan’s] personal circumstances’.[11]
[9]R v Verdins (2007) 16 VR 269.
[10]Reasons [27].
[11]Ibid [28].
In regard to Nolan’s youth, the judge held that:
Whilst you are still a relatively young man these are very serious offences. In this circumstance I do not accept the principles applicable to the sentencing of youthful offenders apply. I assess your prospects of rehabilitation as being cloudy.[12]
[12]Ibid [29].
He contrasted the seriousness of the offending against the matters in mitigation. The judge characterised the offending as ‘a deplorable assault upon your de facto partner’ and a ‘clearly terrifying experience for your children and the victim’.[13] He described the use of weapons, boiling water and salt as ‘gratuitous and sickening behaviour’.[14] The charges of threat to kill and false imprisonment were considered serious examples of those offences.[15]
[13]Ibid [30].
[14]Ibid [31].
[15]Ibid.
The judge had regard to the Victim Impact Statements of the victim and her mother and father which demonstrated that Nolan’s actions ‘caused enormous stress’ to all involved and had a ‘devastating impact’ on their lives.[16] He noted however, that the Victim Impact Statements ‘must not overwhelm other relevant sentencing considerations’.[17]
[16]Ibid [32}.
[17]Ibid [33].
Four prior convictions were considered as having little relevance to the sentencing task.[18] The judge considered specific deterrence to be relevant and general deterrence to be ‘of considerable importance’.[19] The judge stated that ‘[t]here must be a strong denunciation of violence within domestic relationships’ and that the community’s denunciation must be manifest in a just punishment.[20]
[18]Ibid.
[19]Ibid [34].
[20]Ibid [35].
Before imposing the sentence, the judge concluded that:
It is not in issue that an immediate custodial sentence is required. I have had regard to the total of comparative cases, sentencing statistics and relevant authorities provided by counsel. This is a most unusual case with many aggravating features. I have had regard to the principle of totality. The most serious offence is recklessly cause serious injury. The sentence on this offence will be the base sentence. Whilst there was one episode of offending it is appropriate that there be a degree of cumulation in respect of the other offences of false imprisonment and make threat to kill.[21]
[21]Ibid [36].
Grounds of appeal
Nolan seeks to appeal the sentence imposed on two grounds:
1.The learned sentencing judge erred in concluding that the principles applicable to sentencing youthful offenders did not apply; and
2.The total effective sentence, the non-parole period and the individual sentences imposed on charges 1–3 were manifestly excessive, having regard to:
a.The applicant’s relative youth and level of maturity;
b.The applicant’s upbringing in circumstances of profound disadvantage;
c.The applicant’s lack of relevant antecedents and first experience of a custodial environment;
d.The applicant’s pela of guilty, remorse and progress towards rehabilitation;
e.The degree of cumulation between individual sentences;
f.The nature of the injuries suffered by the victim; and
g.Current sentencing practice.
Ground 1 — specific error
In support of ground 1, Nolan submits that the sentencing judge’s approach was erroneous since his Honour accepted the relevance of the applicant’s youth but determined that the gravity of the offending extinguished the mitigatory effect of youth in circumstances where it could not be said that there were no reasonable prospects of rehabilitation. This is alleged as a specific error as opposed to a matter of the weight to be given to Nolan’s youth which is considered in the context of ground 2. Specifically, Nolan relies on the position as stated in Azzopardi v The Queen[22] that:
where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[23]
[22](2011) 35 VR 43 (‘Azzopoardi’).
[23]Ibid 57 [44] (emphasis added) (citations omitted).
Nolan submits that the judge’s approach meant that he ignored a relevant consideration in sentencing that deprived Nolan of having the following factors taken into account: (1) the effect of his level of maturity on his culpability; (2) his increased potential for rehabilitation; and (3) the risk that a longer custodial term would be counter-productive. He complains that these three factors were not mentioned in the judge’s sentencing remarks and that his rehabilitation was not considered beyond being assessed as ‘cloudy’. He submits that neither the gravity of the offending nor the prospects of rehabilitation were such that the mitigatory effect of youth was extinguished.
The Crown submits that at the age of 23 Nolan was not strictly a youthful offender for the purposes of the Sentencing Act 1991 which provides that a young offender is ‘an offender who at the time of being sentenced is under the age of 21 years’.[24] This was conceded before the judge. There was therefore no need for the judge to have treated him as a youthful offender and the judge committed no error in not treating Nolan as a youthful offender.
[24]Sentencing Act 1991 s 3 (definition of ‘young offender’).
I agree. In any event in my view ground 1 is misconceived. The judge did not accept the relevance of Nolan’s ‘youth’. Rather, he expressly rejected its relevance. He held that in the circumstances the principles relating to youthful offenders did not apply because, although Nolan was ‘still a relatively young man’, the offences were very serious. That is, he assessed the violent and ‘deplorable assault’,[25] undertaken over a lengthy period in a terrifying manner, with weaponry that rendered the assault of a ‘sickening and gratuitous’[26] kind, in the context of very serious examples of false imprisonment and threat to kill, as diminishing the potential for Nolan’s youth to be viewed as having a mitigatory effect. This assessment was reinforced by the judge’s evaluation of Nolan’s prospects of rehabilitation as no more than ‘cloudy’, a finding which it was clearly open to his Honour to make, especially given that the offending involved the use of alcohol and drugs and involved significant violence over an extended period. This approach is consistent with the observations made in Azzopardi.
[25]Sentencing reasons, [30].
[26]Ibid [31].
As mentioned, the judge specifically took into account Nolan’s prospects of rehabilitation and made a finding that was open to him to make in the circumstances. Furthermore, the judge was alive to the need for an immediate and lengthy custodial sentence to express the appropriate denunciation of the violence Nolan perpetrated while recognising that what he was required to impose is a just sentence. He emphasised that the custodial sentence had to be one that achieves the objective of specific deterrence. In treating specific deterrence as relevant, the judge, in effect, made an evaluation of the impact that a lengthy custodial sentence would have on Nolan and determined that, far from being counter-productive, it was necessary and just.
In my view, ground 1 is not reasonably arguable.
Ground 2 —manifest excess
In support of ground 2, Nolan submits that matters personal to him, including his youth and his prospects for rehabilitation, were not appropriately taken into account and that this is apparent by the length of the sentence imposed.
In regard to totality, Nolan submits that the orders for cumulation are manifestly excessive given that the circumstances in which the charges were committed all occurred in one transaction against the same victim and in a manner where the objective gravity of charge 2 and charge 3 are informed by the circumstances of charge 1.
Nolan further submits that current sentencing practice precludes a sentence longer than five years imprisonment for causing serious injury recklessly in the circumstances of his offending. He refers to Ashdown v the Queen[27] where Maxwell P noted that most cases involving sentences of five years or more on the charge of causing serious injury recklessly usually involved a plea of not guilty, the use of a dangerous weapon, life-threatening and usually permanent injury, and relevant prior convictions for violent offences.[28] With the exception of the use of a weapon, none of these features are present in this case. However, it must be acknowledged that Maxwell P went on to say that were it for then current sentencing practice (in 2011) a sentence of five years would have been appropriate.
[27](2011) 37 VR 341 (‘Ashdown’).
[28]Ibid 347 [16].
Nolan recognises that the injuries sustained by the victim were serious, but submits they were within the lower end of the range of serious injuries. He relies on the case of Marrah v The Queen[29] where the Court described the ‘worst category of cases’ as usually comprising ‘offending involving the infliction of catastrophic physical injuries, often accompanied by permanent brain damage’, while ‘a collection of bruises and abrasions, tenderness, superficial scratches and an undisplaced fracture of the cheekbone … must necessarily be seen as less serious’.[30]
[29][2014] VSCA 119 (‘Marrah’).
[30]Ibid [21].
Given current sentencing practice and the extent of injuries suffered by the victim, Nolan submits that the sentence imposed was beyond the range available in the circumstances.
The Crown repeats that Nolan did not stand to be sentenced as a young offender; moreover, this was not a case of an immature offender making an ill- considered or rash decision or where the offending resulted from a lack of insight, judgment or self-control. The judge generally took into account Nolan’s status as a low functioning adult with poor impulse control but found that these factors did not decrease the criminal culpability of the offending.
I agree. The difficulty facing Nolan is that the ground of manifest excess will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’.[31] It is not sufficient that a sentence be regarded as stringent or as not one which another judge (including an appellate judge) would have imposed. Redlich and Priest JJA explained in McPhee v The Queen[32] that there are considerable problems in making out the ground of manifest excess:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[33]
[31]R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).
[32][2014] VSCA 156.
[33]Ibid [8] citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).
Although the offending may have been more objectively grave had the injuries caused been more severe, there were numerous aggravating features to which the judge referred. The stringent threshold to establish manifest excess was not easily met in the circumstances of this case. Moreover, the sentence imposed reflected the need for general deterrence. This was emphasised in Marrah where the Court highlighted the importance of appropriate sentences for domestic violence:
Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.[34]
[34]Marrah [2014] VSCA 119 [25].
In Marrah the Court of Appeal reduced the sentence for recklessly causing serious injury from eight years to six years and this formed the base sentence in circumstances in which the charge of recklessly causing serious injury arose from a prolonged violent assault in the context of a domestic relationship which resulted in injuries of a similar kind to those suffered here: bruising, a fractured cheekbone, and superficial scratches. The Court also reduced the sentence of an offence of threat to kill made in the context of a violent, possessive rage, with a knife, from five years (with two years’ cumulation) to three years (with eighteen months’ cumulation).
In Uzun v the Queen[35] Maxwell P agreed with Priest JA about the need for sentences for family violence to reflect appropriately the importance of general deterrence in this context. He said:
Priest JA has referred to the importance of general deterrence and this Court’s repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.[36]
[35][2015] VSCA 292.
[36]Ibid [48].
In my view, it is not reasonably arguable that the sentence imposed is unjustifiably high or beyond the range. I consider that it is not reasonably arguable that the threshold for manifest excess has been met.
Conclusion
I refuse leave to appeal against sentence.
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