Director of Public Prosecutions v Noble
[2024] VCC 1977
•2 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 22-02103
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEIGH NOBLE |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May,11 October, 13, 26 November 2024 |
DATE OF SENTENCE: | 2 December 2024 |
CASE MAY BE CITED AS: | DPP v Noble |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1977 |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentence
Catchwords: False imprisonment – ICI – Persistent Contravention FVIO – Trafficking drug of dependence
Legislation Cited:
Cases Cited:
Sentence: 132 days imprisonment in combination with two year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | |
For the Accused | Mr A. S. Dickenson |
HIS HONOUR:
1Leigh Noble, you have pleaded guilty before me to one charge of false imprisonment which carries a maximum of five years' imprisonment. One charge of intentionally causing injury which carries a maximum of 10 years' imprisonment. One charge of persisting contravention of a family violence intervention order which carries a maximum of five years' imprisonment. One charge of trafficking a drug of dependence which carries a maximum of 15 years.
2You also admitted relevant summary offences. Committing an offence whilst on bail, three months maximum and driving whilst disqualified which carries a maximum of two years' imprisonment or 240 penalty units.
3You have admitted relevant prior convictions and your criminal record is reflective of the role you played in the drug milieu back in 2021 in relation to the matters before me. It is fortunate for you that in the three and a half years or so since the commission of the offences you have demonstrated positive steps towards rehabilitation. I am satisfied that you are well out of the drug scene now.
4The circumstances of your offending are very troubling and are summarised in the Summary of Prosecution Opening for Plea which is Exhibit A. I do not propose to recite in the same detail the circumstances herein. The offending relates to your victim Mr Dermott[1] and it involved others, most of whom I have sentenced, in particular Mr Smith and Mr Tuckerman.
[1] A pseudonym.
5In May 2021, on 8 May to be precise, Mr Dermott was taken by Mr Ramia to Mr Tuckerman's address. One of the reasons for that to take place apparently related to a police record of interview that Mr Dermott had participated in. When he arrived you began physically assaulting him. You were well aware of the plan to assault him as your text messages reveal during the police investigation. You punched him several times to the head and body including his jaw. You threw him against a wall in the living room. This relates to Charge 2, causing injury intentionally.
6Mr Dermott tried to cover his head. He did not retaliate. You took a knife from him and placed it on a nearby table. He was verbally abused and assaulted by others. Mr Tuckerman arrived and physically and verbally assaulted Mr Dermott. I will not detail all of the other parties that were present and involved but your partner, Ms Cottier, was one of them.
7Mr Tuckerman then engaged in extremely violent and vicious behaviour which amounted to torture of Mr Dermott, humiliating behaviour, ordering him to remove all his clothing. He was video recorded during this. He was treated in a very degrading and inhumane manner. You were present throughout all of this. He was tied with his hands in front of his body. That is part of the false imprisonment charge that you have pleaded guilty to. He was injured. Amongst other things he was asked to drink GHB in quantities which he later described were sufficient to kill him.
8I have taken care not to sentence you for these uncharged acts that took place during the period of false imprisonment that you were a party to. That includes the GHB and the injuries occasioned by the coat hanger and so on and so forth, the Tradeflame device, the drill; but you were present during all of that and it was part of what took place during the period of false imprisonment. At one point you and Ms Cottier left the premises and the treatment of Mr Dermott unfortunately continued on thereafter.
9At 7.58 am MICA paramedics arrived and decisions were made that – this is later the next morning once Mr Dermott was back at his home, a decision was made that he required rapid sequence intubation. I will not detail all of the injuries and the traumatic medical interventions that followed. As has been clear in relation to this matter there are others that I dealt with in relation to causing serious injury and in relation to the breadth of the humiliating, degrading and tortuous treatment of Mr Dermott and the serious injury occasioned to him.
10Charge 4, the charge of trafficking a drug of dependence, is summarised at paragraph 51 of Exhibit A and I will not recite the details therein. Similarly, in relation to persistent contravention of an intervention order that is summarised at paragraphs [71] and [72] of the opening and I will not recite those details herein also.
11Once you were arrested you spoke to an undercover police operative, unwittingly of course, and you went into details about what you engaged in: that you punched Mr Dermott several times, that in your presence he was made to drink 20 mil of juice. A blowtorch was used on his neck and chest. He was branded on the chest with male genitals. You set out the rest of the degrading treatment. He was still cable tied while others assaulted him. It was caught on camera and when asked who was going down for it you replied, 'All of us'. You were remanded in custody on 9 August 2021.
12I received victim impact statements in relation to the impacts on Mr Dermott. They are difficult to read and difficult to listen to because they set out: the trauma that was impacted upon him, that was occasioned to him and the terrible traumatic consequences that followed, the ongoing trauma that he and his family continue to carry with them and the slow and traumatic efforts of his rehabilitation.
13I received victim impact statements from Mr Dermott but also his parents. His mother read her victim impact statement to the Court. That is something that is not easy to do and I commend her for her bravery and strength in doing so. Your victim was severely traumatised and you are part of that criminal enterprise and episode which caused such significant harm and ongoing trauma. I am satisfied that you are remorseful for your involvement in this enterprise of which you should be highly ashamed I accept your letters of apology to be genuine. As I have said, I have been mindful to, as best I am able, separate and isolate your criminality from the broader and more serious criminality of Smith and Tuckerman.
14You were arrested in August 2021 and you remained in custody for 132 days before being bailed to The Cottage, which is a residential rehabilitation facility. Your experience in custody was difficult being in the midst of the pandemic and the restrictions that applied to custody at that time. What I mean by difficult is it was more onerous than it would otherwise be but for the pandemic restrictions. You spent some 16 months as part of The Cottage residential rehabilitation program and that is a significant matter in relation to your personal circumstances but also in relation to your position vis-à-vis your co-offenders.
15I was told and I accept that you made an offer to plead guilty to the matters which you have ultimately now been dealt with on 24 March 2022. I therefore accept that your plea is a relatively early one and that there has been a period of delay during which you have demonstrated significant rehabilitation and during which also you have had these very serious matters hanging over your head. Both of those aspects provide significant mitigation in your case.
16I received a number of references and materials in relation to your matter, including the letter from Mr Gilhooley from The Cottage, references from your current employer, Jarrod Cleave from Cleave's Earthmoving. Your partner, Ms Cottier, has been present throughout. From Matthew Morovan and
Nicole Grogan. A psychiatric report from Dr Prashant Pandurangi was filed and also your letters to which I have referred. A letter to the court. A letter of apology to Mr Dermott. A letter of apology to his parents. There are also a significant number of drug screen urinanalysis results filed on your behalf to support the submissions made in relation to progress during a period of delay.17I was told about your personal circumstances and I will not summarise all of these aspects in detail. Exhibit 1, which is the outline of the submissions filed on your behalf and spoken to by Mr Dickenson of counsel on your behalf, sets out in detail relevant matters.
18Your childhood was relatively unremarkable save for your parents separating at a young age and it seems that you did not have the benefit of a male role model during your formative years. You had negligible contact, I was told, with your father until age 18 and that may have had an impact upon you but you were reasonably happy, I was told, in childhood. You played sports. You were a reasonable student until Year 10 and you left during Year 11. You had a number of casual jobs between the ages of 17 to 20. Night fill work at BIG W. You were a labourer with a concreting firm. You did landscaping and work as a furniture removalist.
19A significant matter in your life occurred at the age of 20 when you were engaged in drag racing and committed the offence of negligently causing serious injury whilst driving a motor vehicle. Three passengers and yourself were all seriously injured and you were ultimately sentenced to a period of gaol with a non-parole period of 10 months, which you served. You had been working prior to that in the security industry and you had a security licence but your incarceration put an end to security work.
20Sometime after leaving custody you went to Western Australia to work in the mines as a fly-in fly-out worker. During this time and I have not been told precisely but you had been engaging in ice use. When you returned from WA you had no work and you fell into ice use again. You had completed Certificates II and III in Civil Construction. You worked as a labourer at Winslow Constructions. You worked for Division 8 Group of Companies from 2017 to 2018 and Jamcon Civil 2019 to 2021 at which time I was told you were laid off due to COVID.
21You fell back into ice use. So illicit substance use has been a matter that you have been vulnerable to throughout your early adulthood and your 20s and into your 30s. Your criminal history is reflective of that. As I observed at the start of these remarks a number of those prior convictions are reflective of a role in the drug milieu not dissimilar to what is before me but reflective perhaps of someone who was useful for what might be colloquially referred to as ‘strong arm tactics.’ As I also said at the opening of these remarks, fortunately for you, you seem to have put that behind you.
22In March 2022 you commenced with Cleave's Earthmoving & Drainage as a labourer. You worked as an excavator operator. You obtained your heavy rigid truck licence. You are currently a project manager and second in charge and I was told you are responsible for a team of more than 20 workers over several job sites. I accept those matters and they are supported by the letter from Mr Cleave.
23A significant part of your rehabilitation is your current relationship and Ms Cottier has been present throughout. You have been in a relationship for approximately 10 years. You are a step-father to Ms Cottier's 12 year old daughter and you and Ms Cottier have two children of your own, Laken and Levi.
24In the past there has been difficulties with parenthood for both of you. I was told that the children were removed from care due to the drug issues you were both dealing with. It is positive and positive for the community that your family is now reunited and doing well. You have children from a previous relationship who unfortunately you do not have a relationship with I was told.
25Mr Dickenson on your behalf quite rightly placed significant emphasis on the effects of delay. What that means in your case is that you engaged in a residential rehabilitation program upon leaving custody at The Cottage for some 16 months. The case of Akoka allows me to take that into account given the restrictive nature of residential rehabilitation. But it is also very positive in the sense that it shows your commitment to rehabilitating and the other aspects before me, the evidence of remorse, the efforts of apology, the stability you have at home and the hard work you are engaging in, collectively form a picture of someone who is well on the path to rehabilitation. There is a strong community interest in supporting that and allowing it to continue.
26You have relocated to Shepparton. You are the sole breadwinner. Sorry, I will put that in non-colloquial terms. You are the sole income earner in your family. You engage in other pro-social pursuits such as attending the gym with your partner. All of these matters have to be balanced in relation to what the appropriate sentence is.
27I have to take into account the significant victim impacts and I include as the victims, of course, not only Mr Dermott but his parents as well and I have to balance the very serious offending that you engaged in. There is little mitigatory that can be said about your circumstances of offending.
28However, given those matters that I have set out in relation to the period of delay, the positive aspects of delay but not only that, also the fact that you have exhibited that rehabilitation during a period where you have had this serious matter hanging over your head, not knowing what the outcome ultimately will be. Those matters give rise to an occasion for some mercy in your case and some leniency that otherwise certainly would not be available to you.
29The objective gravity of the offending is very serious and I have commented on that in previous sentences in relation to your co-offenders. When I give appropriate weight to the factor of general deterrence and the factor of denunciation and specific deterrence given your record and synthesise other factors such as your prospects of rehabilitation and the mitigatory effect of delay and your progress in that time, your early plea of guilty and your remorse, it is open to me to impose a combination sentence in your case.
30I have had to have regard to parity, of course. Smith and Tuckerman were both sentenced in relation to intentionally causing serious injury and their involvement and role in the offending was far more significant than yours. Those factors alone give rise to significant disparity between you and Smith and Tuckerman, in your favour of course but added to that is the Akoka time, the effects of delay, your remorse and early plea of guilty and your current circumstances.
31The report of Dr Pandurangi gives rise to some concerns in relation to neuroprocessing and potential ADHD. Other than noting those and providing a basis for an appropriate condition on a Community Corrections Order I have not considered that the matters raised by Dr Pandurangi are significant from a sentencing point of view. I have taken into account, of course, your early resolution of this matter and the experience of custody during the pandemic. I will sentence you as follows, Mr Noble.
Sentence
32On the indictment first dealing with Charges 1 and 2, being the charges arising out of the one enterprise, I propose to impose an aggregate sentence. That is charges of false imprisonment and causing injury intentionally. You are sentenced to an aggregate sentence of 132 days in combination with a two year Community Corrections Order. The conditions of that order will be that you perform 150 hours of unpaid community work. That you attend for mental health assessment and treatment as directed. That you attend for drug assessment and treatment as directed and that you be subject to supervision.
33On Charge 3, persistent contravention of an intervention order, you are sentenced to a 12 month CCO with 25 hours of unpaid community work and supervision and to attend offending behaviours as directed.
34Going back to the first CCO under Charges 1 and 2, 25 hours of treatment conditions can be credited towards work hours.
35In relation to Charge 4, trafficking in a drug of dependence, one month imprisonment.
36In relation to the relevant summary offences, committing an offence whilst on bail, one month imprisonment. Driving whilst disqualified, you are fined $1,000 with conviction.
37Those sentences of imprisonment are to be served concurrently.
38I declare pursuant to s18 of the Sentencing Act that you have served 132 days as pre-sentence detention.
39Pursuant to s6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.
40There is a disposal order to make also?
41MS McMASTER: Yes, there is, Your Honour.
42HIS HONOUR: I make that disposal order.
43MS McMASTER: Yes. It's dated 9 October 2024.
44HIS HONOUR: Yes, I think I have got a copy of it. Yes.
45MS McMASTER: Eight items on it.
46HIS HONOUR: Yes. I make that disposal order.
47MS McMASTER: Thank you. Sorry, we're just trying to catch up with what
Your Honour said in relation to each of the charges.48HIS HONOUR: I can - - -
49MS McMASTER: Would you be - - -
50HIS HONOUR: I can restate it.
51MS McMASTER: Yes. Would you mind?
52HIS HONOUR: Yes. So - - -
53MS McMASTER: Thank you.
54HIS HONOUR: So look it is – and the rationale should be apparent.
55MS McMASTER: Yes.
56HIS HONOUR: Charges 1 – I mean it is an indictment where Charges 3 and 4, of course, are quite distinct from Charges 1 and 2.
57MS McMASTER: Yes.
58HIS HONOUR: Ordinarily if it is one series on an indictment I might impose a CCO over the – or a combination sentence over the entire indictment but it was not appropriate in this case. So on Charges 1 and 2, given they form part of a series or part of - - -
59MS McMASTER: Yes.
60HIS HONOUR: - - - one enterprise it is an aggregate sentence, 132 days' imprisonment in combination with a two year community corrections order. The conditions of that community corrections order are 150 hours of unpaid community work. Mental health assessment and treatment as directed. Drug assessment and treatment as directed and supervision. Twenty five hours of treatment conditions can be credited towards work hours.
61On Charge 3, the persistent contravention charge, that is a 12 month community corrections order.
62MS McMASTER: Yes.
63HIS HONOUR: So these corrections orders will run alongside each other.
64MS McMASTER: Yes, Your Honour.
65HIS HONOUR: They run concurrently effectively is the way it works as I understand it. Twelve month community corrections order with 25 hours unpaid community work, supervision. Although that is perhaps unnecessarily doubling up because there is sufficient on the other one but Corrections can work that out. This was not part of an assessment but attend programs directed at offending behaviour. Now that is a matter for Corrections. Whether there are any but clearly it is in relation to the contravention of family violence intervention orders. So I am contemplating something like respectful relationships.
66MS McMASTER: Yes. Thank you.
67HIS HONOUR: Or men's behavioural change. That sort of thing. Trafficking, one month imprisonment. It does not need to be directed as concurrent but I stated that so it is clear for everyone. Commit offence whilst on bail, one month imprisonment concurrent and drive whilst disqualified, fined $1,000 with conviction.
68MS McMASTER: Got it.
69MR DICKENSON: As it please Your Honour.
70HIS HONOUR: The 6AAA is three.
71MS McMASTER: Three years.
72HIS HONOUR: With two as the non-parole period.
73MS McMASTER: Two years non-parole. Yes.
74HIS HONOUR: And 132 days is the PSD and I make the disposal order.
75MS McMASTER: Thank you, Your Honour.
76HIS HONOUR: Now they will need to be signed, those CCOs. Do I stand – do you need me to stand down? We'll try and get those up now and I will sign them. Do you consent to the corrections orders, Mr Noble?
77OFFENDER: Yes, Your Honour.
78HIS HONOUR: Yes. Well I have to tell you that if you breach the corrections orders by not complying with the conditions or by re-offending you will be brought back before me for re-sentence. Yes. I will just stand down.
(Short adjournment.)
79HIS HONOUR: Thanks. All right. I will sign these and then you will have to sign them, Mr Noble. There are two orders and then you will get a copy of them. Just remember what I said, that you have got to comply with all the conditions. If there is re-offending you will be in breach. All right. Well we will get a copy made of those and all the best.
80OFFENDER: Thank you.
81MR DICKENSON: Thank you, Your Honour.
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