Nolan v The Queen [2017] VSCA 97

32 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:

Court of Appeal (Vic)|2017-05-03|Before: Tate JA

The applicant's relative youth and level of maturity; 2. The applicant's upbringing in circumstances of profound disadvantage;

The applicant's lack of relevant antecedents and first experience of a custodial environment;

The applicant's pela of guilty, remorse and progress towards rehabilitation; 2. The degree of cumulation between individual sentences; 3. The nature of the injuries suffered by the victim; and 4. Current sentencing practice.

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]

33 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.

34 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.

35 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.

36 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.

37 In my view, ground 1 is not reasonably arguable.

38 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.

39 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.

40 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.

41 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]

42 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.

43 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.

44 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]

45 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]

46 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).

47 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]

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.

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

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

[23] Ibid 57 [44] (emphasis added) (citations omitted).

[24] Sentencing Act 1991 s 3 (definition of 'young offender').

[29] [2014] VSCA 119 ('Marrah').

[31] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).

[33] Ibid [8] citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).

[34] Marrah [2014] VSCA 119 [25].

DPP v Nolan [2017] VCC 34 (Judge Coish)

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