DPP v Noble

[2020] VCC 600

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01330

DIRECTOR OF PUBLIC PROSECUTIONS

V

ROBERT NOBLE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	Plea 21 April 2020
DATE OF SENTENCE:	11 May 2020
CASE MAY BE CITED AS:	DPP v Noble
MEDIUM NEUTRAL CITATION:	[2020] VCC

REASONS FOR SENTENCE
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Subject: Criminal law - sentence             

Catchwords: convicted of two charges of sexual penetration of child under 16 – both course of conduct charges – child aged between 9 and 11 years, offender aged between 42 and 45 – trusted family friend – aggravating factors -   profound effects on complainant and parents – no previous convictions – good work record – good prospects for rehabilitation – stress associated with Covid-19 pandemic – vulnerable due to health issues.

Cases Cited:McCray (a pseudonym) v R [2017] VSCA 340 at [24]; Formosa v R (2012) 36 VR 679; Cheung v R (2001) CLR 1; Oliver Harlow (a pseudonym) v R [2018] VSCA 234; Dylon Lyon (a pseudonym) v R [2019] VSCA 251; Brown (aka Davis) v R [2010] VSCA 60

Sentence: TES 7 years, npp 4 years and 3 months.                

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Ms G. Morgan	Doogue & George

HER HONOUR:

1Robert Noble, you have been found guilty by a jury of two charges of sexual penetration of a child under 16 as a course of conduct.  The victim[1] of this offending was aged between nine and 11 at the relevant times between March 2010 and December 2012.  You were then aged between 42 and 45.

[1] Hereinafter referred to as “the complainant”

2Charge 1 relates to four incidents of oral penetration whereby you placed your penis in the complainant's mouth.  Charge 2 relates to three incidents whereby you penetrated her vagina with your penis.  These incidents occurred on occasions when you were babysitting her or when she was alone in your company.

3The complainant complained of some of the instances having occurred on multiple occasions. 

Assessment of culpability for course of conduct offending

(1) Findings as to the incidents

4Counsel have made submissions as to the manner of assessing your culpability for these crimes in order to determine the basis for sentencing you.

5As Ms Morgan submitted on your behalf the jury verdict did not reveal whether they reached their verdict on the basis that they found any particular incident or occasion proven beyond reasonable doubt.  The prosecution position is that I should accept that the jury found the complainant a credible witness and accordingly I should sentence on the basis that they found all the incidents proved to the requisite standard and that I should accept that there was other similar offending as well.

6Section 5(2F) of the Sentencing Act requires me to impose a sentence that reflects the totality of the offending that constitutes the course of conduct but below that provision there appears a note as follows: 

'If a jury finds a person guilty of a course of conduct charge in making findings of fact relevant to sentencing the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced.'

7The jury may have found you guilty on the basis of only two of the incidents making up each charge.  Ms Morgan submitted that if I am to sentence you on the basis that you committed more than two incidents in relation to each charge I must be satisfied beyond reasonable doubt as to any greater number of incidents[2].

[2]McCray (a pseudonym) v R [2017] VSCA 340 at [24]; Formosa v R (2012) 36 VR 679; Cheung v R (2001) CLR 1

8In reply Mr Plummer for the prosecution relied upon the decisions in the cases of Harlow[3] and Lyon[4] to submit that while an assessment of the conduct described by the complainant should be made there is no requirement to make a finding as to the actual number of times the offending occurred.

[3] Oliver Harlow (a pseudonym) v R [2018] VSCA 234

[4] Dylon Lyon (a pseudonym) v R [2019] VSCA 251

9This is consistent with the rationale for course of conduct charges as described by the Court of Appeal judges in Harlow, that these provisions were designed to relax the degree of specificity required in respect of charges laid for single incident offences[5] because it is unrealistic to expect a witness years after the offending to recall particular incidents of similar or identical offending[6].

[5] Harlow [63]

[6] Ibid [64]

10The direction of Ms Morgan's submission in this regard was to refer to the inconsistencies in the complainant's evidence as to what occurred and as to the opportunities you had to offend.  Ms Morgan submitted that the number of incidents that can be found proven beyond reasonable doubt must to some extent depend on a realistic assessment of the extent of opportunity for you to offend.  The totality of your offending is assessed by the number of offending instances taking into account the opportunities you had to be alone with the complainant.

11Ms Morgan submitted that in making each assessment I should be guided by the lesser number of instances stated by the complainant and by placing constraints on my interpretation of the range of opportunities according to the family members who gave evidence.

12Ms Morgan referred to the approach followed by His Honour Judge O'Connell of this court in the case of Ferreira, a case involving four charges of incest alleged to have been committed as a course of conduct.  His Honour said at paragraph 31, and I quote:

'In considering these submissions I have had regard to the well-established principles set out by the High Court in R v Cheung[7] as to the trial judge's role in interpreting the jury's verdict for the purposes of sentence.  Given the very high standard of proof to which I must be satisfied and given the understandable imprecision associated with this young child's account I will adopt what I regard as a conservative approach by sentencing you on the basis that each course of conduct consisted of several but not many instances of the type of sexual assault charged.  I will also proceed on the basis that offending must have ceased by 9 March 2016, in other words at around the time the complainant turned eight and a half.'

[7] (2001) 209 CLR 1

13That offending in that case was the same or very similar offending which occurred on a very regular basis on fortnightly access visits by the offender with that child.  In your case the four instances which make up Charge 1 and the three instances which make up Charge 2 are each different in type and cannot be subject to the generalisation which the circumstances in Ferreira allowed.  For that reason it is necessary to focus, albeit briefly, on the factual circumstances of each instance of offending.

14Turning to the incidents making up Charge 1, Ms Morgan submitted that the complainant's account lacks particulars as to times and circumstances.  It also reveals deficits in the complainant's memory as to whether oral sex took place or whether she masturbated you.

15I note that the complainant gave evidence that such oral penetration happened a lot at your home and she said in her VARE that the first time oral sex happened it was in your loungeroom.  It is not clear from this part of her evidence how old she was at the time.

16Ms Morgan submitted that the same lack of specificity applies to the evidence as to the second incident relied on by the prosecution, the trip to Ballarat, insofar as the complainant was unclear whether the act in question was what she called a 'hand job' or a 'blow job'.

17Ms Morgan submitted that I could not be satisfied beyond reasonable doubt that either of these instances occurred.  The other two instances, that of oral penetration at her home when her parents were away while her brothers played Xbox and after watching a pornographic movie at your instigation are more specifically described, linked to particular events.

18You were looking after the children in September 2010 when the parents were in Fiji and the complainant was aged nine.  In each case except for the trip to Ballarat I am satisfied beyond reasonable doubt that those events occurred.

19The evidence as to the Ballarat incident falls short of such proof because of the complainant's uncertainty as to the nature of the act.  Accordingly in respect of Charge 1 you will be sentenced on the basis of the first two and the fourth instances of offending.

20Turning now to Charge 2 Ms Morgan submitted that the jury must have been satisfied that at least two incidents of vaginal penetration took place at your house between the relevant dates but there is nothing specific as to how old the complainant was.

21I digress at this point to say that I place no great weight on whether the complainant was aged nine, ten or 11 at the time any incident took place.  The complainant's evidence was that it happened in your living room and that it happened all the time.  She was here referring to when she was younger and you babysat her.

22The number of times you might have babysat her will be addressed later in these remarks.  The second specific incident relied upon by the prosecution was the instance of vaginal penetration that caused bleeding.  The jury must have found that the complainant's first experience of vaginal penetration was with you with the resultant bleeding and so there is no doubt about that finding.

23The third instance relates to the complainant's evidence of being tied to your bed when vaginal penetration took place which she said happened maybe five times.  Under cross-examination she agreed it was maybe two or three times.  Ms Morgan submitted that the complainant was incorrect in her description of the bed asserting it was wooden and she could not describe what it was that was used to tie her up.

24Ms Morgan submitted that the complainant was uncertain as to how many times it happened and so it could not be found to have occurred more than once because of part of her answer in cross-examination that it occurred, 'Once, sometimes, between them'.

25The transcript shows that she qualified that answer by saying that “sometimes” meant two or three times.  I am satisfied beyond reasonable doubt that penetration occurred at your home on more than two occasions but limited by the opportunities you had for taking her to your home while babysitting her while her parents were away or taking her there after market visits or work visits or after visiting your mother.

26I am satisfied that the second incident occurred when the complainant bled after penetration by you and also that the third incident of penetration when tied to your bed occurred at least twice.

(2) Findings as to opportunity to offend

27As I mentioned earlier the opportunities you had to offend against the complainant are relevant to an assessment of the number of times you offended and therefore to the totality of the offending.

28Different accounts were given as to these opportunities.  The complainant's brothers were teenage boys at the relevant times and took little notice of the comings and goings of you and their young sister.  The evidence of her parents is more reliable but given some differences in their evidence I take a cautious view in drawing any conclusions.  Even so it is safe to conclude that you had ample opportunity to offend against the complainant often, as she stated, but of course you will be sentenced only on the basis of the specific offending which is the subject of the charges.

(3) Totality of the offending

29By way of clarification I intend to sentence you on the basis that you committed all of the incidents that are the subject of the charges except the incident arising from the trip to Ballarat.  In relation to the instances of penetration when the complainant alleges she was tied to your bed I have accepted her evidence at its lowest, that is that” sometimes” meant “two”.

30I have also taken into account her evidence of similar offending on other occasions during occasional babysitting weekends and occasional visits but that these other instances form part of the background or context of your offending and are not included in the particular sentences I impose.

31In reaching that finding I have taken into account that a finding of guilty in respect of a course of conduct charge does not allow the sentencing judge to draw the inference that the jury accepted all the evidence. As part of my role in fact finding I have considered the complainant's evidence and concluded that she was a truthful witness subject to the inconsistencies of the type referred to in s.54D(2C) of the Jury Directions Act 2015.

Gravity of the offending

32An assessment of the gravity of the offending in this case is a further necessary step in the process of sentencing you.  First it must be observed that offences of sexual penetration of a child are rendered more serious by having been committed as a course of conduct.  Ms Morgan submitted that owing to imprecision as to the age of the complainant at the time of any of the offences I should make no specific finding in that regard.

33Even if I were to wholly accept that submission I take the view that for the purposes of assessing gravity of offending in this case and others like it there is little difference in age between a nine year old and an 11 year old child.  The gravity of the offending is the same regardless of a possible two year difference in the complainant's age.

34However, I have already found that oral penetration occurred at the complainant's home when her parents were away on holiday which was ascertained as being in September 2010 when the complainant was aged nine.  Your offending represents a gross breach of trust in your role not just as a longstanding family friend but as a babysitter and trusted carer having known the complainant all her life.

35You persisted with the offending over a period of two and a half years, a long time in the life of a child.  I accept that the uncharged acts of inflicting cigarette burns on the complainant's hand and leg are aggravating features of your offending in that you intended this as a form of manipulation and coercion, or as she described it, getting her to do what you wanted.

36The complainant disclosed these incidents to her friend a few days after her disclosure to her parents having told them there was more but she would not tell them what it was.  You have denied inflicting a burn on her leg and maintained that the burn on her hand was accidentally inflicted during a visit to the speedway in the presence of her brothers who have no memory of it and only learned about it in conversation later.

37I can be satisfied beyond reasonable doubt that the burns were inflicted by you deliberately.  The complainant and her parents have each provided victim impact statements describing the impact of the offending upon them and each was read by the prosecutor to the court during the plea hearing.

38Although the complainant disclosed the offending to her friend in 2014 she did not tell her parents until October 2016.  That disclosure has remained a moment of profound grief for the family which has continued to affect them.

39In her statement the complainant appears to have expressed her deep antipathy towards you in the hope that you will understand the full impact of what you did to her.  She said she felt alone and ashamed.  She feels permanently scarred by it and that you deprived her of her innocence as a little girl and of her growing up years.

40Paradoxically she feels responsible for the horror inflicted on her parents when she disclosed to them what you had done.  Fortunately she seems to have emerged as a strong and ultimately resilient young woman.

41Her mother in a reflective and articulate statement described how betrayed she felt on learning that you, her trusted friend of many years, who was very much part of the family had abused her daughter over a prolonged period.

42Her father expressed the same profound feelings of betrayal and both parents bear the guilt of feeling they have failed to protect their daughter.  Both have suffered ongoing stress and anxiety and have had to deal with frequent unwelcome reminders of you prompted by seeing men who look like you or other triggers.

43Her mother considers that she has been stripped of emotion but hopes that this will be repaired.  Her father’s  health has suffered and his physical symptoms are still being investigated.  You were his school friend and shared many youthful experiences with him, later being his trusted friend who shared the family's life in many ways.

44The very serious offences of sexual penetration of a child are punishable by a maximum penalty of ten years' imprisonment.  That penalty reflects the abhorrence with which the community regards such offending and includes the need for an appropriate sentence to deter others.

45There is also a role for specific deterrence because of your denial of the offending and therefore absence of remorse, but there are no other indications that your prospects for rehabilitation are other than good, as Ms Morgan submitted.

Personal circumstances and background

That leads me to consider your personal circumstances and background.  You are aged 52 and you are single, although you were married briefly in 2004 to a Fijian woman.  You are now in a relationship with a woman living in Cambodia who is the mother of your seven year old daughter.

46You were visiting them in Cambodia just before you returned to Australia and were arrested and you have not seen them since.  You were planning to return to live with them and you hope to be able to maintain contact through telephone calls.

47You were brought up in an intact family with siblings but your father was a strict disciplinarian.  You left home at 18 and did not remain close to your family.  You have now, at your own behest, ceased contact with them altogether.

48You completed Year 11 at school and then completed an apprenticeship in fitting and turning.  You worked for many years using those skills except for periods when a back injury caused your employment to be terminated.  You owned a house at one stage but this had to be sold to meet debts and you have no assets.

49You have no prior convictions and a friend has described in a letter to the court, your good character as a co-worker and close friend over 13 years.  You have several health problems of the sort which are usually managed well in the community, as Ms Morgan put it, but you are at risk of cardiovascular disease and require relatively strong pain relief for your back problem which has not been made available to you in custody as yet.

50Ms Morgan tendered a document issued by the Deputy Commissioner of Corrections Victoria headed, 'Protective quarantine of new reception prisoners during the COVID-19 pandemic'[8] You have been completely isolated in prison for 14 days following the plea hearing and will now be subject to the same restrictions as other prisoners who, being deprived of liberty, have no individual discretion over managing the risk of disease.

[8] Exhibit 4

51Although at the age of 52 you are not regarded as being in the high risk age group, your risk of cardiovascular disease, particularly as a former heavy smoker, might place you at relatively high risk.  Despite there being no evidence as to any incidents of COVID-19 in the prison system in Victoria the stress experienced by every member of the community in this regard might be enhanced for prisoners because of the possible consequences of any outbreak there.

52That much has been accepted in decisions of the Court of Appeal and the Supreme Court in recent weeks[9].  The prevailing uncertainty was underlined by three prisoners being tested with a negative result just recently.  Because of those preconditions for stress your experience of prison is likely to be more burdensome at this time than for inmates without such health risks and I take that into account by moderating the length of your sentence. This reduction is an acknowledgement of the stress you may experience in the coming weeks or months. 

[9] Eg Brown (aka Davis) v R [2010] VSCA 60

53A mitigating factor in sentencing you is the delay in completion of the case which is not due to any fault on your part.  You were arrested and interviewed in December 2016 and the progress of the case since then has seen five juries being empanelled before a verdict was returned on 21 February 2020.  Therefore you have had the matter hanging over your head for some three and a half years and I take that into account.  As to any guidance to be derived from current sentencing practice, there is little guidance available from sentences imposed in other cases of similar offending given that the circumstances of particular cases are different.

54I was referred to R v Dylon Lyon[10] and R v John Ashley[11] insofar as current sentencing practice is concerned and have had regard to them. 

[10] [2019] VSCA 251

[11] [2016] VSCA 246

55Mr Noble, I am going to sentence you now so although you are there on the video link could you stand please?  Thank you.

I sentence you to five years' imprisonment for each charge. 

I order that two years of the sentence for Charge 2 be served in cumulation upon the sentence for Charge 1 resulting in a total effective sentence of seven years.

I order that you serve a minimum period of four years and three months before being eligible for parole.  The length of this non-parole period gives effect to considerations arising from the present state of the COVID-19 pandemic.

You have spent 20 days in presentence detention not including today.  I declare that time to be reckoned as already served and I will cause that to be noted on the court record.

56Pursuant to the Sex Offenders Registration Act it is mandatory that you report your details to the police every year after your release for the rest of your life.  A form setting out your reporting obligations will be emailed to your solicitor later today.  Mr Noble, do you agree to comply with those reporting obligations?

57OFFENDER:  Yes.

58HER HONOUR:  Thank you.  Take a seat now please.  Mr Plummer, first of all is there anything I have neglected or omitted?

59MR PLUMMER:  No, Your Honour.

60HER HONOUR:  I cannot hear you very well, Mr Plummer.  Was that a “No”?

61MR PLUMMER:  Sorry, that was a no, Your Honour.

62HER HONOUR:  Thank you.  Ms Morgan, anything from you?

63MS MORGAN:  No, Your Honour, thank you.

64HER HONOUR:  Thank you.  In that case I think the video link and the other links can be closed down now.  Thank you for your attendance.

65MR PLUMMER:  If Your Honour pleases.

66MS MORGAN:  If Your Honour pleases.

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