Director of Public Prosecutions v Noon
[2020] VCC 462
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-00001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN NOON |
---
JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February and 8 April 2020 | |
DATE OF SENTENCE: | 21 April 2020 | |
CASE MAY BE CITED AS: | DPP v Noon | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 462 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: common assault – kidnapping - persistent contravention of a family violence order – youthful offender- youth detention - Verdins principle No.5
Legislation Cited: s.125A Family Violence Protection Act, s.6AAA and s.35 Sentencing Act 1991
Cases Cited: R v Mills [1998] 4 VR 235 at 241, DPP v Palise [2017] VCC 1379
Sentence: Total effective sentence of 22 months' detention
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Bourbon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms C. Hollingworth | Stary Norton Halphen |
HIS HONOUR:
1 Stephen Noon, on 26 February 2020 you pleaded guilty to five charges of common assault, one charge of kidnapping and one charge of persistent contravention of a family violence order.
2 The offence of common assault carries a maximum penalty of five years' imprisonment. The offence of kidnapping carries a maximum penalty of 25 years' imprisonment. The offence of persistent contravention of a family violence order carries a maximum penalty of five years' imprisonment.
3 You have also admitted your criminal record. That record shows that at Sunshine Children's Court on 4 April 2019 you were placed on a probation order for a period 12 months without conviction. The offences for which you were placed on probation relevantly include behaving in a riotous manner in a public place, resisting police, home invasion intending to steal where a person was present, affray, committing an indictable offence while on bail and a number of dishonesty offences. The offences before me, committed between 25 April 2019 and 23 July 2019, put you in breach of that probation order.
Circumstances of offending
4 An amended Summary of Prosecution Opening was tendered on the plea hearing and marked Exhibit P1. Your counsel accepted that it is an accurate summary of your offending conduct.
5 You and Ms Michelle Waters[1], one of the victims in this matter, were in a de facto relationship for approximately two years and together you have two daughters. At the time of the offending Ms Waters was 19 years old. You were living together at the home of your mother, Rebecca Simon, in Point Cook.
Your relationship with your former partner is now over and she and the two children live interstate. You no longer have contact with them.
[1] Name is a pseudonym.
6 The second victim, Ms Ajak Awen, is the cousin of Ms Waters and was aged 20 at the time of your offending.
7 On 25 April 2019 Ms Waters, together with your nine-month-old daughter, visited Ms Awen at her home in Laverton. Throughout the night Ms Waters received a number of threatening phone calls and messages from you. You were angry and demanded to know where she was. Your family members also started contacting Ms Waters, asking for her address. She refused to tell you and your family her whereabouts.
8 You eventually obtained Ms Awen's address and attended at her home. You knocked aggressively at her door, which terrified her and Ms Waters. You yelled out 'open the door or I'll break it down'. Ms Awen went to the front door, holding her baby. She opened the door but remained behind the screen. Ms Waters went and stood behind Ms Awen. You continued to yell and demand that the door be opened. Ms Awen unlocked the screen door. You opened the door and barged passed both women. You began a search, it would seem, to see if any males were present. Your behaviour was described as 'erratic'. Out of fear Ms Awen retreated to the laundry and Ms Waters to the neighbouring bedroom.
9 You were yelling at Ms Awen through the slightly opened laundry door. As a result of something you said to her, Ms Awen let go of the laundry door putting her hands in the air. She screamed in fright and apologised to you. You then produced a knife and held it to her neck.
10 Your conduct towards Ms Awen from the time you commenced aggressively knocking at her front door to the placing of the knife to her neck forms the basis of Charge 1, common law assault.
11 You then let go of Ms Awen and proceeded towards Ms Waters. She attempted to close the bedroom door but you forced it open. Ms Waters then picked up your daughter, who was on the ground. You said, 'Let's leave'. You then held the knife to Ms Waters's neck. She could feel the pressure of the blade hard against her neck. She felt she might be killed. Your child was on her right hip and was in close proximity to the knife.
12 Ms Waters told you that you were scaring her. You removed the knife from Ms Waters's neck and placed it in your pocket. You ushered her out of the house towards the car. Even though she was still holding your daughter you punched her repeatedly in the back of the head. She used her spare hand to try and protect her head from your punches. Your conduct from the moment you commenced to knock aggressively at the front door to this time forms the basis of Charge 2, common law assault.
13 Ms Waters did not want to leave Ms Awen's house and only did so in an attempt to calm the situation. She got into the front seat of your car with your daughter on her lap. This conduct forms the basis of Charge 3, kidnapping. Ms Waters managed to whisper to Ms Awen that she should call the police.
14 You then drove away from Ms Awen's house. Whilst driving you produced the knife and repeatedly swung it in the direction of Ms Waters and your daughter. On a number of occasions the knife almost made contact with Ms Waters. You also punched her. You said to Ms Waters words to the effect of 'you're gonna make me do something I regret'. This conduct in the car forms the basis of Charge 4, common law assault.
15 The drive from Laverton to your home in Point Cook lasted approximately 20 minutes. On arrival, Ms Waters went immediately to the bedroom. You followed her into the room.
16 Inside the bedroom you were aggressive and yelling at Ms Waters - 'What the fuck were you doing there?' Ms Waters attempted to answer but you hit her to the face. You continued to question her and, each time you did not like the answer she gave, you hit her with a closed fist or slapped her with an open palm. This conduct forms part of the basis of Charge 5, common law assault.
17 Ms Waters was bleeding from her mouth and was in a lot of pain. She was also very scared. Your daughter was crying hysterically. Ms Waters was hit too many times to count. You punched her to the head a number of times whilst she was holding your child. She tried to leave the room twice but you prevented her from doing so. You even threw her to the ground. This conduct also forms part of Charge 5.
18 You eventually stopped your assault on Ms Waters and left the house. The assault in the bedroom was prolonged, lasting approximately two hours.
19 I now turn to the matters relevant to Charge 6. On an occasion between 18 May and 18 June 2019 you and Ms Waters were at home when you started behaving aggressively towards her. You had lost your wallet and were convinced Ms Waters knew where it was. She told you she didn't know where your wallet was but commenced to look for it. As she was looking for your wallet you grabbed her by the jumper and pulled her toward you. You demanded that she tell you where the wallet was. Your mother and some other relatives attempted to calm the situation. Ms Waters told the family she was too scared to remain in the house and went outside. She walked away from the house. You drove your car to where she was standing and told her to get into the car. She did as she was told.
20 In the car you said to her, 'You don't want to be with me, yeah? This is gonna end today'. Ms Waters took this to mean that you were going to end her life. You drove her to an area where there were no surrounding houses. It was dark. After you stopped the car Ms Waters fled from you and started running back towards the house. You chased her on foot but could not catch up to her. You returned to the car and began to drive after her.
21 Ms Waters ran back to the house, locking the front door behind her. She told your mother that you were trying to kill her and begged her not to open the door. You arrived shortly afterwards and your mother let you into the house. Ms Waters ran into the baby's room and closed the door behind her. You attempted to force your way into that room. Other family members attempted to pull you away and begged you to stop. You forced your way into the room but your mother intervened, pushing in between you and Ms Waters. You then left the room.
22 Your conduct towards Ms Waters from the time she got into the car until your mother intervened is the basis for Charge 6, common law assault.
23 Later that night Ms Waters asked why you had driven her to the abandoned area. You told her that if she was going to leave you, you were going to leave her up there. From the way in which you answered her question, Ms Waters believed that you were going to end her life there.
24 On 20 May 2019 a DHHS child protection team became involved with your family. On 17 July 2019 Ms Waters, supported by DHHS, reported your violent conduct to police. On 18 July 2019, a ‘no contact' interim intervention order was made against you at the Werribee Magistrates' Court. It was served on you that same day.
25 You contravened that intervention order on four occasions, each of which make up Charge 7, persistent contravention of an intervention order. I set out those four contraventions.
26 On 19 July 2019 you telephoned Ms Waters. She heard you say, 'give [my daughter] a kiss for me'. She immediately ended the phone call.
27 On that same day she received a direct message from you which read that she had 'crossed the line' and that you intended to 'expose the fuck outta you everyone gonna know wassup'.
28 On 20 July 2019 you telephoned Ms Waters and asked, 'Is the baby all right?' Ms Waters immediately terminated the call.
29 On 23 July 2019 you telephoned Ms Waters and asked, 'Hey, Ricky, is the baby all right?' Ms Waters immediately terminated the call.
30 You were arrested on 24 July 2019 and taken to the Werribee police station. You were interviewed by police and answered 'no comment' to police questions. You were charged and remanded in custody.
31 The case against you proceeded to a committal hearing. On the day of the committal, and before any witnesses were called to give evidence, the matter resolved with you indicating an intention to plead guilty to the charges now before this court.
32 Ms Waters declined to make a victim impact statement. No victim statement was tendered on behalf of Ms Awen.
Background and Personal Circumstances
33 You were born in a refugee camp in Kenya on 24 April 2000. You are aged 19. In 2004, at the age of three, you came to Australia with your mother and three older siblings.
34 Your mother and siblings fled the civil war in South Sudan in about 2000. She was pregnant with you at the time. You have very few memories of the first four years of your life. You told Ms Mynard, psychologist, who assessed you on 7 February 2020, that your father was a soldier in the war and 'had been lost to the family for many years'.
35 On arrival in Australia you settled in Adelaide with your mother, sisters and brother. Your siblings continue to live and work in Adelaide. They have families of their own and you have a close relationship with them.
36 You also have a close relationship with your mother. She is employed as a packer in a factory, working night shift. Until the COVID-19 restrictions your mother visited you on a weekly basis. She is no longer able to visit and you now speak to her daily on the telephone. She was present at court during your plea hearing.
37 When you were aged 11 you met, for the first time, your father when he travelled to Australia. You described your meeting with your father as a good experience, but shortly thereafter he returned to Kenya. He had by then re-partnered and had a family living in Kenya. You travelled to Kenya and visited him when you were aged 12 and also when you were aged 14. On those occasions you stayed mostly with your maternal grandmother in South Sudan and developed a close relationship with her. You had no further contact with your father following those visits to Kenya. You report that this is a matter which greatly upsets you.
38 You attended primary and secondary schools in Adelaide. You completed first term of Year 12 at which time you moved to Melbourne with your mother. You had difficulty in the schooling transition and did not complete Year 12.
39 It appears that you had difficulties in both your primary and secondary schooling. You often got into fights and lashed out in anger. You received a number of suspensions. In primary school you were teased and racially abused. You responded with aggression. You reported to Ms Mynard that on one occasion you even assaulted the school principal.
40 Since leaving school you have worked at Kmart where you unloaded containers for a period of 12 months. You also worked in an ice factory for a period of six months.
41 You have twice enrolled in civil construction courses but on each occasion you were remanded and not able to participate. It is your hope, upon release, to complete a civil construction course.
42 I am told that you were a talented basketball player and your move to Melbourne was to further your ambition to play basketball at a higher level. However, you injured your ACL joint which has hampered your ability to play basketball. It continues to cause you difficulty, even in custody.
43 It was through basketball that you met Ms Waters. She had travelled from Sydney to watch her cousin play in a tournament in Melbourne. You were also playing in that tournament.
44 You told Ms Mynard that your relationship with Ms Waters was initially a positive one. However, after you had your first child, the two of you began to argue. You explained that you became extremely protective of your daughter and felt left out of daily decisions regarding her care. You told Ms Mynard that Ms Waters would go out to friends' houses, taking your daughter with her and engage in alcohol consumption or be in the company of 'negative peers'. You stated that you became very anxious over this alleged behaviour of Ms Waters's, as you considered it placed your daughter in danger.
45 I note, however, from the agreed summary of facts that you were very controlling of Ms Waters and monitored her contact with friends and family. If she left the house without advising you, your mother would notify you of that.
46 Ms Waters gave birth to your second child on 19 November 2019. She was in fact pregnant with your second child at the time of your offending.
47 On 14 July 2019, shortly before you were arrested on the matters before me, you were involved in an incident where you were stabbed seven times to your arm, the upper chest and stomach. The tendons in your thumb were cut and had to be reattached. You still suffer numbness of the thumb and restricted movement.
48 You reported to Ms Mynard that by the time you were 17 you were smoking up to three grams of cannabis each day. You also abused alcohol, Xanax and MDMA. You told her that when you were affected by pills and alcohol you would act without considering the consequences of your behaviour. On testing you scored in the extremely high range of problematic alcohol consumption. You reported to Ms Mynard that on the day of offending you had consumed 15 Xanax tablets. I take this to be a reference to the events of 25 April 2019. You told her that, 'When it comes to Michelle and the kids [you] get really crazy'. You expressed your regret and shame for your conduct.
49 Ms Mynard diagnosed you as suffering a number of mental health conditions including major depressive disorder; generalised anxiety disorder and post-traumatic stress disorder.
50 You have not previously seen a psychologist or engaged in counselling. Since being taken into custody you declined medication for your mental health. However, you have been engaging in a number of courses to enhance your prospects for rehabilitation. Your participation in such courses is a matter that goes to your credit.
51 I have had regard to each of the matters in Ms Mynard's report. I note in particular, the following passage:
'Potentially Mr Noon has ability to learn new coping mechanisms for his anger and showed some initial stages of insight about how his past experiences have impacted upon his current mental illnesses. These mental health and addiction issues are likely to affect Mr Noon into the future and, without treatment, will likely continue on a negative trajectory. However, with a treatment and rehabilitation focus … Mr Noon has the potential to address his underlying mental health issues, reducing his risk of relapsing back into substance abuse and ultimately reducing his risk of reoffending.'
52 You are clearly a person who is in need of appropriate treatment and counselling if your offending behaviour is to be addressed. Ms Mynard considers that you would benefit greatly from engaging with mental health professionals in order to begin the process of addressing your mental health concerns. She considers that your prospects of rehabilitation are moderate.
53 Ms Hollingworth, who appeared on your behalf, relied on a number of matters in mitigation of penalty in support of her ultimate submission that you be sentenced to detention in a youth justice centre.
54 It was submitted, and accepted by the learned prosecutor, that I should treat your pleas of guilty as having been entered at the earliest opportunity. I am prepared to sentence you on the basis that you pleaded guilty to appropriate charges at the earliest opportunity.
55 I am also prepared to find, as was submitted, that you are remorseful for your conduct. You expressed your shame and regret for your conduct to Ms Mynard. I also accept that your pleas of guilty are indicative of your remorse.
56 Your pleas of guilty also provide significant utilitarian benefits to the court and community. A trial has been avoided and witnesses have been spared the distress and ordeal of having to give evidence.
57 Ms Hollingworth also relied on your age as a factor relevant to sentence. You are now aged 19. You are a young offender.
58 Reliance was placed on the well-known principles set out in R v Mills [1998] 4 VR 235 at 241.
59 In Mills, the Court of Appeal approved the following three propositions as relevant to sentencing young offenders:
(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)
60 I accept the applicability of each of those propositions in your case. Given your age, as was submitted by your counsel, there is great public benefit if your rehabilitation can be achieved.
61 As to your prospects for rehabilitation Ms Hollingworth advised that you have in recent times been making positive inroads towards your rehabilitation whilst at the Metropolitan Remand Centre. You have participated in and completed courses in 'respectful relationships', drugs and alcohol, first aid, occupational health and safety and CPR. You also instructed Ms Hollingworth that you are aware of the fact that you need to rehabilitate in order to be able to see your children again. I am also told that you continue to enjoy the support of your mother and family.
62 Ms Hollingworth nevertheless conceded that general deterrence still has an important role to play in sentencing young offenders involved in serious offending. Ms Hollingworth further acknowledged that your offending involved domestic violence against your then pregnant partner; was protracted; at times involved the use of a knife; and that some of the offending was done in the presence of your young child. Further, you offended whilst on a probation order and bail. Each of those matters, in my opinion, makes the nature and gravity of your offending serious.
63 I consider the assaults the subject of Charges 1, 2, 4, 5 and 6, for the reasons acknowledged by your counsel, to be particularly serious examples of the offence of common law assault. Kidnapping is itself a serious offence which carries a maximum penalty of 25 years' imprisonment. However, in the circumstances of your case, I consider that your conduct when you kidnapped your then partner falls toward the lower end of the spectrum of seriousness. It is important to distinguish, so as to avoid double punishment, the assaults which occurred during the kidnapping episode (Charges 2 and 4) and the kidnapping itself. The kidnapping is constituted by your telling Ms Waters that you should all go home, ushering her out of the house and to the car, and then driving her home to Point Cook, a journey that lasted approximately 20 minutes.
64 Charge 7 is constituted by four separate breaches of the intervention order taken out at the Werribee Magistrates' Court on 18 July 2019. You were not then present at court, but you were served with the order just after 6 pm on that same day. Two of the breaches involved you enquiring as to the well‑being of your daughter. Another breach was a request by you that Ms Waters give your daughter a kiss for you. Whilst the content of your communication to Ms Waters on each of those occasions might be considered harmless, you nevertheless deliberately breached a court order and communicated directly with a person who, by reason of your earlier conduct, was in fear of you. Further, the fourth communication was deliberately provocative and threatening. I also have regard to the fact that the four breaches occurred within days of you having been served with the interim order.
65 Despite the seriousness of your overall conduct I nevertheless accept your counsel's submission that 'rehabilitation' should not take a backseat to general deterrence and that it should operate as the primary sentencing consideration. That is not to say that general deterrence is not an important factor in your case. As was conceded by your counsel, it is. Further, by reason of your prior convictions and the number of offences you have committed, over several months, I also consider specific deterrence to be an important consideration. The sentence to be imposed must deter you and others from behaving in a similar manner.
66 Ms Hollingworth also relied on the matters referred to in Ms Mynard's report concerning your mental health as enlivening Verdins principle No.5. Mr Bourbon accepted that submission. I will make some allowance in the sentence to be imposed having regard to that principle. Because of your mental health difficulties, the sentence you will serve will weigh more heavily on you than a person in normal health.
67 I am also mindful of the fact that I need to impose a sentence that is just in all of the circumstances and a sentence that marks this court's denunciation of your behaviour. The behaviour you engaged in was outrageous and must be condemned. Violence, particularly against women, is never acceptable or tolerated in our community.
68 At the conclusion of the plea hearing I had your case adjourned for a pre‑sentence report as to your suitability for a Youth Justice Centre order. A report from Mr Gene Bell which was endorsed by Ms Bridget McGeoch, dated 2 April 2020, was prepared and forwarded to the court and the parties. You are considered a suitable candidate for a Youth Justice Centre order.
69 Mr Bell gave evidence before me at the further plea hearing on 8 April 2020. I found him to be an impressive witness. You were interviewed on three separate occasions given some initial concerns he had as to your suitability. You were challenged during the assessments. You did not minimise your offending and, to use Mr Bell's words, you 'displayed an impressive level of honesty' when recounting your time and difficulties on remand. One of the initial concerns Mr Bell had was your capacity to engage in a therapeutic relationship. You were asked, as an exercise, to provide a letter to your father expressing your feelings towards him. You did as you were asked and again you impressed with your genuine efforts to express your feelings and explore your underlying issues of anger, resentment and fear.
70 In all of the circumstances, particularly having regard to the desirability of your rehabilitation, I am prepared to sentence you to a Youth Justice Centre. I consider that there are reasonable prospects for your rehabilitation and, given your young age, I also consider it likely that you will be subjected to undesirable influences in an adult prison. I have regard to Mr Bell's evidence in this regard that it is not uncommon that older prisoners will encourage younger prisoners to cause trouble within the gaol.
71 I have also considered the decision of DPP v Palise [2017] VCC 1379, to which Ms Hollingworth referred, and the cases mentioned therein. I have also had regard to the relevant cases set out in the Judicial College of Victoria's sentencing manual for the offences with which you are charged. As might be expected the sentences for these offences vary widely, reflecting the many varied circumstances in which they are committed and the differing personal circumstances of the offenders. They are nevertheless useful in assisting me to determine what is the current sentencing practice with respect to each of the offences.
72 Mr Bourbon, what is pre-sentence detention, please?
73 MR BOURBON: Your Honour, it's 273 days.
74 HIS HONOUR: Not including today?
75 MR BOURBON: Not including today, that's correct.
76 HIS HONOUR: Thank you. Ms Hollingworth, do you agree with that?
77 MS HOLLINGWORTH: Yes, Your Honour.
78 HIS HONOUR: Thank you. Mr Noon, would you please stand up.
Sentences
79 Each of the sentences to be imposed are to be served in a Youth Justice Centre. I bear in mind that you have never before been sentenced to a term of imprisonment and the principle of totality.
On Charge 1, common assault, you are convicted and sentenced to a period of detention of five months;
On Charge 2, common assault, you are convicted and sentenced to a period of detention of six months;
On Charge 3, kidnapping, you are convicted and sentenced to a period of detention of 12 months;
On Charge 4, common assault, you are convicted and sentenced to a period of detention of six months;
On Charge 5, common assault, you are convicted and sentenced to a period of detention of eight months;
On Charge 6, common assault, you are convicted and sentenced to a period of detention of seven months; and
On Charge 7, persistent contravention of a family violence order, you are convicted and sentenced to a period of detention of three months.
80 The sentence imposed on Charge 3 is the base sentence. I direct that one month of the sentence imposed on Charge 1; two months of the sentence on Charge 2; one month of the sentence imposed on Charge 4; two months of the sentence imposed on Charge 5; three months of the sentence imposed on Charge 6; and one month of the sentence imposed on Charge 7 be served cumulatively on the base sentence and on each other. This makes a total effective sentence of 22 months' detention.
81 Pursuant to s.35 Sentencing Act 1991 I declare that the period to be reckoned as already served under the sentence to be 273 days, not including today, and I cause to be noted in the records of the court the fact that the declaration was made.
82 Pursuant to s.6AAA of the Sentencing Act, the period of detention I would have imposed had you not pleaded guilty is one of two years and six months' detention.
83 HIS HONOUR: All right. I am indebted to both counsel for their assistance in this matter. Mr Noon, you may now be returned to custody and it is hoped that you will be transferred to a youth justice centre as soon as possible. Thank you very much.
- - -
0