Nolan v The Queen [2017] VSCA 240

1 The applicant 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[1] as follows:

[s 17 Crimes Act 1958]

[s 17 Crimes Act 1958]

[s 320 Crimes Act 1958]

[s 20 Crimes Act 1958]

[s 20 Crimes Act 1958]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 10 years with a non-parole period of 7 years

Other relevant orders: Forensic Sample Order pursuant to s.464ZF Crimes Act 1958;

2 The applicant was refused leave to appeal against sentence by a single judge of appeal[2] but renewed the application for leave pursuant to s 315(2) of the Criminal Procedure Act 2009.

Circumstances of the offending****[3]

3 At the time of the offending, the applicant resided at the Riverglen Caravan Park ('the caravan park') with his de facto partner of eight years (the victim) and their two young children. The applicant and the victim were both 23 years of age at the time of the offending, and their children were aged four and five.

4 At about midday on 24 June 2016, the applicant, the victim and their children caught a taxi from the caravan park to the Belmont Shopping Village and purchased alcohol from a Liqourland store. As they were returning in the taxi to the caravan park, the taxi driver called the applicant a 'junkie alcoholic'. The applicant was enraged, and repeatedly told the victim to complain to the taxi company.

5 The victim, the applicant and their children went to a park opposite the caravan park and the victim called the taxi company. While she was on the phone, the applicant forced the victim into some bushes and punched her chin and lip.

6 Later the same day, the family walked back to Liqourland, as the taxi company had banned them from ordering taxis. They returned to the caravan park, and the applicant forced the victim to make further calls to the taxi company and to lawyers for advice about 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. He continued to do so, and then hit her over the head with a broom. The force of this blow caused the head of the broom to snap off. The victim's head began to bleed and she sought refuge in the shower. It was approximately 4.00 pm.

7 The applicant approached the victim as she hid in the shower and threw a kettle of boiling water over her. She was able to protect herself somewhat from the water by holding a jacket over herself, but some water splashed onto her skin. The applicant then whipped the victim with the cord of the kettle, a phone charger and the cord of a blow-up mattress. At some stage, he also bit her on the back, both forearms and her left calf. The applicant's children were watching as he did these things to their mother. One child yelled at him to stop, while the other hid under the kitchen table.

8 The victim then attempted to flee the cabin, but the applicant blocked her exit with a couch. The victim attempted to push the couch out of the way, but the applicant 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'.

9 The victim sat on the children's bed while the applicant heated up a pot of water on the stove, which he then threw over the victim's back. The applicant then heated sugar and hot 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 to the shower. The applicant then poured the contents of a salt container over her head and rubbed salt into the cuts on her scalp. He then threw black and white pepper and curry powder on her. The applicant told the victim not to have a shower, and said: 'This is the end...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'.

10 The applicant then showed the victim a spoonful of the boiling sugar and told her to wait while he checked his phone. The victim ran from the bathroom, grabbed a knife to defend herself with and ran out of the front door. She escaped into a nearby cabin, where she hid while the applicant yelled out to her. A number of caravan park residents called the police.

11 The couple's two young children, who were extremely distressed, were found in the cabin by police. When they were asked what had happened, one of the children told police, 'Daddy tried to kill Mummy'.

12 The applicant initially hid from police, but surrendered and was arrested at about 7:40 pm. In an initial interview with police, the applicant said that he had consumed around 12 cans of bourbon and coke over the course of the day, and had also had 'a shot' of ice.

13 The victim and her children were taken to Geelong Hospital, where the victim was treated for the following injuries:

large haematoma to the forehead/eyebrow - 8 x 4 cm;

full thickness wound to the pulp of the right index finger;

multiple bruises to fingers, hands and forearms; and

14 The victim required five sutures to her lip and tissue glue to repair her finger. She refused further treatment to her head due to pain.

15 On 19 and 26 September 2016, the victim received a further assessment at Plantation Medical Clinic. The clinical notes record that the victim was suffering from headaches with a focus on her right forehead, firm swelling in the same area, multiple lesions consistent with recent scarring to the crown of her head, chin, arms and legs, and a well-healed scar over the base of the right scapula.

16 The victim reports that these events have had a serious impact on her life. She says that she has 'not been the same' since her partner's attack, and that she and her children are afraid and have difficulty sleeping. She reports that she continues to deal with cramps in her hand and difficulty walking as a result of the attack. She has a number of physical scars which remind her of the attack. She is afraid that the applicant will kill her when he is released from prison.

17 After setting out the circumstances of the offending, the judge noted a number of matters in mitigation, including that the applicant had pleaded guilty, had cooperated with authorities and was genuinely remorseful.[4]

18 The sentencing judge then made a number of observations about the applicant's personal circumstances. He noted that the applicant was 23 years of age at the time of the offending (he is now 24 years of age), that he was unemployed, and that he had been in custody since his arrest. The sentencing judge also noted the applicant's 'disrupted and dysfunctional childhood'; both his parents were heavy drinkers and his father was violent and addicted to drugs.[5] The applicant had experienced periods of homelessness, was barely literate and had a very limited work history.[6] The sentencing judge observed that the applicant was 'a long term heavy user of alcohol and cannabis' and that he became addicted to ice sometime between late 2015 and early 2016.[7]

19 The sentencing judge took into account reports from a psychiatrist and a psychologist. The psychiatrist diagnosed the applicant as 'suffering from social phobia, bipolar disorder Type 2, cannabis abuse, and borderline personality traits', and drew up a management plan involving medication and treatment, which was not followed.[8] The psychologist considered the applicant to be a 'generally low functioning adult',[9] and considered him to satisfy the DSM 5 diagnostic criteria for severe stimulant, alcohol, benzodiazepine and cannabis use disorders. He considered that the applicant had limited insight into his offending.[10]

20 The sentencing judge did not accept that the Verdins[11] principles applied to the applicant, as he did not find any causal link between the applicant's mental state and the offending.[12] The sentencing judge found that the applicant was affected by a violent rage induced by excessive amounts of alcohol and ice.[13] Although he did not accept that the Verdins principles applied, the sentencing judge did take the psychiatrist and psychologist reports into account in a general sense.[14]

21 The sentencing judge noted that the applicant was 'still a very young man', but did not accept that the principles applicable to youthful offenders applied, given the seriousness of the offending and his assessment of the applicant's prospects of rehabilitation as 'cloudy'.[15]

22 The judge emphasised the seriousness of the offence, describing it as a 'deplorable' assault occurring over a long period of time in the presence of the applicant and the victim's children. The sentencing judge noted that it was clearly a 'terrifying' experience for the victim and the children.[16] He described the applicant's use of weapons, boiling water and salt as 'gratuitous and sickening behaviour'.[17] The sentencing judge stated the he had had regard to Victim Impact Statements provided by the victim and her parents, but that these must not overwhelm other relevant sentencing considerations.[18] He noted that the applicant had a number of prior convictions, but stated that these were of little relevance.[19]

23 The judge stated that specific and general deterrence were of considerable importance in cases such as this, and specifically noted that there must be strong denunciation of violence within domestic relationships.[20] It was not in issue that an immediate custodial sentence was required.[21]

24 The sentencing judge stated that he had regard to comparative cases, sentencing statistics and relevant authorities, but emphasised that this was an unusual case with many aggravating features.[22] He then sentenced the applicant as set out above at [1].

25 The applicant seeks to appeal the sentence 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 plea 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

Was the judge required to and did he fail to take the applicant's youth into account? (Ground 1)

26 The applicant submits that the sentencing judge erred by not taking his youth into account. Ground 1 raises this as a specific error.[23] The applicant relies on the principles stated in Azzopardi v The Queen.[24] In that case, Redlich JA observed:

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.[25]

27 The applicant submits that the judge erred by determining 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. The applicant also draws the Court's attention to R v Wiley,[26] where Maxwell P emphasised the 'great public benefit' in the rehabilitation of young offenders.[27] The applicant states that he was deprived of the benefit of having his maturity, potential for rehabilitation and the risk that a longer term of imprisonment would be counterproductive considered as a result of the judge not taking his youth into account.

28 The Crown submits that, given he was 23 years of age, the applicant is not strictly a youthful offender. The Sentencing Act 1991 provides that a young offender is 'an offender who at the time of being sentenced is under the age of 21 years'.[28] This was conceded before the sentencing judge. The applicant contends that these principles are not limited to cases where the offender is under the age of 21, although he concedes that their force diminishes as age increases.[29]

29 The Crown further submits that, even if the Court determined to treat the applicant as a youthful offender, there was no requirement to lessen the sentence in this case, given the seriousness of the offending. The Crown particularly notes that the sentencing judge found the applicant's prospects of rehabilitation to be 'cloudy', and that any consideration of youthfulness is generally coupled with prospects of rehabilitation in the sentencing process.

30 In our opinion, the judge made no error of the kind contended for as Ground 1. The age of the applicant was relevant. He is a young man, albeit not young enough to be sentenced as a 'young offender' under the Sentencing Act. The judge took into account the applicant's age but did so in a way that recognised that the offences were serious and were committed in the context of an adult domestic relationship in the presence of the applicant's children. The offending in this case stands in contrast to the impulsive offending sometimes associated with the youth of the offender. In the circumstances of this case, the Azzopardi principles had little relevant work to do. Moreover, the applicant's prospects for rehabilitation were assessed by the judge as only 'cloudy.'[30] That is hardly a ringing endorsement for his prospects of rehabilitation that would justify attributing significant weight to the fact that the applicant was only 23 at the time he committed the offences.

31 As he had to do, the judge took other factors relevant to sentence into account. These factors include that the commission of these crimes was horrific, inflicting very serious physical injuries on his victim and doing so in the presence of their young children. Domestic violence is not to be tolerated. Denunciation, deterrence (both specific and general) and protection of the community loomed large in sentencing the applicant.

33 The applicant submits that the sentence is manifestly excessive and that the sentencing judge failed to appropriately take into account matters including his youth and prospects for rehabilitation. He further submits that the orders for cumulation are manifestly excessive given that the offending all occurred in one 'transaction' against the same victim.

34 The applicant notes his youth, the psychological reports, and his disadvantaged childhood as matters which he believes make the sentence manifestly excessive. The applicant relied on Marrah v The Queen,[31] where the Court held that matters of deprivation, abuse and social disadvantage were significant issues for the administration of justice, which do not diminish with age.[32]

35 The applicant also submits that current sentencing practice precludes a sentence longer than five years for recklessly causing serious injury in the manner of his offence. The applicant refers particularly to Ashdown v The Queen,[33] where Maxwell P noted that most cases involving a sentence of five years or more on such a charge involved a plea of not guilty, use of a dangerous weapon, life threatening and usually permanent injury, and relevant prior convictions.[34] The applicant submits that although the injuries sustained by the victim were serious, they were not 'the worst category of cases' involving 'catastrophic physical injuries'.[35]

36 The Crown submits that these matters were appropriately taken into account by the sentencing judge, and that this was not a case of an immature offender making an ill-considered or rash decision. The Crown reiterated that the offending was very serious and occurred over a prolonged period.

37 To succeed on the ground of manifest excess, the applicant must establish that the sentence that was imposed was wholly outside the range of sentencing options available to the judge. What sentence another judge might have imposed is not relevant. Indeed, that there is a range of sentences that might appropriately be imposed underlines the fact that judges will take different views. No one view is the only correct view. Here, the applicant has failed to establish that the sentence imposed was manifestly excessive. Rather, in our opinion, the sentences were within the range of sentencing options that were available.

38 As noted in relation to Ground 1, the judge did take into account the applicant's age but that could not dominate the exercise of the sentencing discretion to the exclusion of other relevant matters such as the need for denunciation, deterrence and protection of the community. Indeed, the judge's Sentencing Reasons disclose that he took into account all relevant matters and gave each the weight that he deemed appropriate in the circumstances of the particular case before him. One cannot take it from those reasons nor from the sentences imposed, that he failed to give proper weight, or gave excessive weight, to any of the relevant sentencing considerations in this case. Among other things, he took into account the applicant's background and the expert evidence.[36]

39 The sentencing judge was provided with statistics and cases which were said to represent current sentencing practice, and stated that he took these into account.[37] The limitations of and usefulness of statistics in sentencing has been noted on many occasions. For a start, they do not disclose the details of the factual circumstances which underlie the individual sentences that go to make up the global statistics.

40 Courts do though aim to ensure that there is consistency in sentencing and in the application of relevant sentencing principles. Consideration of comparable cases may assist in achieving this objective. Indeed, past sentences 'may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.'[38] But that is the limit of their usefulness. They are not precedents as to the sentence that must be imposed in a different case. Rather the appropriate sentence is determined by consideration of the particular circumstances of the case. Naturally enough, no two cases are exactly the same.

41 Suffice to say in this matter, that none of the authorities upon which the applicant relies suggest that the sentence imposed was manifestly excessive.

42 The judge referred to totality as one of the matters that he took into account.[39] The judge noted that there was one episode of offending but deemed it appropriate to order cumulation in respect of the false imprisonment and threat to kill offences. The cumulation ordered (one year in respect of each) which resulted in the total effective sentence of 8 years is not outside the range of sentencing options which might properly be imposed.

43 The application for leave to appeal will be refused.

[1] DPP v Nolan [2017] VCC 34 ('Sentencing Reasons').

[2] Shannon Nolan v The Queen [2017] VSCA 97 ('Appeal Reasons').

[3] The circumstances of the offending are set out in Exhibit 1 - Summary of Prosecution Opening for a Plea. They are also set out in Sentencing Reasons [6]-[18] and Appeal Reasons [3]-[18].

[11] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[23] It is also relevant to the manifest excess ground which is dealt with later in these Reasons.

[24] [2011] VSCA 372; (2011) 35 VR 43 ('Azzopoardi').

[25] Ibid 57 [44] (citations omitted).

[26] [2009] VSCA 17.

[28] Sentencing Act 1991 s 3.

[29] Mills v The Queen [1998] 4 VR 235, 241.

[31] [2014] VSCA 119.

[33] [2011] VSCA 408; (2011) 37 VR 341.

[35] Marrah v The Queen [2014] VSCA 119 [21].

[38] The Queen v Kilic [2016] HCA 48 [22].