Noakes v The Queen

[2015] NTCCA 7

Noakes v The Queen [2015] NTCCA 7

PARTIES:REBECCA NOAKES

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 7 of 2015 (21438082)

DELIVERED:  4 DECEMBER 2015

HEARING DATES:  23 November 2015

JUDGMENT OF:  RILEY CJ, BLOKLAND AND BARR JJ

APPEALED FROM:  KELLY J

CATCHWORDS:

CRIMINAL LAW – Appeal against sentence – Manifest excess – serious offending – no error shown – sentence appropriate in all the circumstances

CRIMINAL LAW – Appeal against sentence - weight accorded to factors in sentencing – particulars of the manifest excess ground – all relevant considerations taken into account

DPP v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457, applied.

Johnson v The Queen [2012] NTCCA 14; Whitehurst v The Queen [2011] NTCCA 11, referred to.

REPRESENTATION:

Counsel:

Appellant:I Read SC

Respondent:  WJ Karczewski QC, M Chalmers

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Noakes v The Queen [2015] NTCCA 7

No. CA 7 of 2015 (21438082)

BETWEEN:

REBECCA NOAKES

Appellant

AND:

THE QUEEN

Respondent

CORAM:     RILEY CJ, BLOKLAND AND BARR JJ

REASONS FOR JUDGMENT

(Delivered 4 December 2015)

The Court:

1. On 24 April 2015 the appellant was sentenced to imprisonment for a period of 21 months with a non-parole period of 11 months after pleading guilty to six offences being: two counts of aggravated unlawful entry of a building; three counts of stealing; and one count of aggravated unlawful use of a motor vehicle. Leave to appeal against the sentence was granted on three grounds:

   (a)     the learned sentencing judge did not give sufficient weight to the appellant’s youth and disadvantaged beginnings;

   (b)     the learned sentencing judge gave undue weight to the appellant’s failure or inability to take advantage of opportunities afforded by the Court while she was on bail; and

   (c)     in all the circumstances the sentence was manifestly excessive.

   The offending

2. At the time of the offending the appellant was dependent on cannabis, alcohol and methamphetamines. On 19 May 2014 the appellant and three female co-offenders were in the Marrara area with the specific intention of breaking into cars or houses to steal property. One of the co-offenders told the group that she knew of an old man who sometimes slept on his back veranda and would be an “easy target”.[1] The group went to his home but could not gain access through the locked front door. The appellant and her co-offenders then entered the premises through the back door and searched the home for things to steal. The occupier was asleep and the appellant searched a pair of shorts on the ground beside him. The appellant stole $200 in cash from a wallet, some cigarettes and an iPhone, along with the keys to his motor vehicle. The offenders used the keys to take the motor vehicle which was valued at $30,000. The appellant, who did not have a licence, drove the vehicle. The vehicle was recovered on 21 May 2014.

3. While the vehicle was in the possession of the appellant and her co-offenders they stole $58.90 worth of petrol by driving away from a service station without paying.

4. For this conduct, the appellant pleaded guilty to aggravated unlawful entry of the dwelling house, stealing from those premises, unlawful use of the motor vehicle and stealing the petrol.

5. The remaining offending occurred on 10 August 2014. On that night the appellant went to a home in Millner where she had once lived. The occupiers were not at home and she gained entry to the house by removing a box  air-conditioning unit and climbing through the gap. She stole a laptop computer valued at $900, a PlayStation valued at $150 and seven sticks of cannabis. She later exchanged the laptop for methamphetamine. The laptop was recovered although the PlayStation was not.

6. On 26 August 2014 the appellant went to the Casuarina Police Station and voluntarily took part in an interview in which she made admissions in relation to the first four counts. She also made unsolicited admissions in relation to the unlawful entry of the Millner premises and the stealing of the items therefrom.

7. She told the police that she had unlawfully entered the Marrara premises because she “wanted money, just lost my job in the mines”.[2] When asked about stealing the fuel she responded “I had money, but would rather spend my money on drugs and grog than pay for the fuel for a stolen car”.[3] In relation to the offending in Millner she said “I was smoking rock and not thinking straight”.[4]

   The personal circumstances of the appellant

8. The appellant was aged 18 years at the time of committing the first group of offences and 19 years at the time of the second group of offences. Her childhood was described as “unhappy and disturbing”.[5] Her mother was a drug addict and her father left when she was a baby. She was subjected to both physical and sexual abuse. She was raised by an auntie. She completed year 11 at Casuarina Secondary College and thereafter had employment, including working as a kitchen hand and cleaner, at the Roper River Mine. She lost her job at the mine following a positive test for cannabis.

9. At the time of the offending she was dependent upon cannabis, alcohol and methamphetamines. She first used cannabis at the age of nine years and she was a binge drinker of alcohol from about the age of 12 years. She started smoking methamphetamines at the age of 18 years and was a daily user at the time of the offending. The Court was informed that she had ceased using those drugs at the time of sentence and this was confirmed by testing whilst she was on bail.

   Sentencing

10. On 23 January 2015 the appellant pleaded guilty to the offences and submissions were made on her behalf. At this time no compelling case for a partially suspended sentence was available to the appellant. The offending had occurred in May and August 2014 and the appellant had been arrested on 16 August 2014. In the period between her arrest and the plea the appellant had been granted bail on terms which required her to enter into two separate residential rehabilitation programs. The first was at the Sunrise Centre and she was discharged from that program on 22 October 2014 for breaching program rules, including by confrontational behaviour towards a staff member. She was later admitted to the Council for Aboriginal Alcohol Program Services (CAAPS) residential program. On 12 January 2015 she was granted further bail requiring her to continue in the CAAPS residential program. She was due to appear in the Supreme Court on 16 January 2015 but failed to do so. She had absconded from the CAAPS program. The appellant was arrested and came before the sentencing judge on 23 January 2015 at which time she pleaded guilty.

11. In the course of submissions the sentencing judge indicated a desire to fashion a sentence which provided “the best way to facilitate this young woman getting off drugs for good, back to work and resuming a useful and productive life”.[6] Her Honour noted that the appellant claimed to be motivated to address the underlying causes of her problems being her drug addictions. Her Honour proposed an adjournment on strict bail conditions to enable the appellant to “demonstrate that she is capable of complying with strict bail conditions and coming back and finding a job so that then the circumstances under which she is being sentenced are somewhat more optimistic…”.[7] Her Honour thought it necessary for the appellant to be given an opportunity to demonstrate “that she is genuinely committed to rehabilitation”[8] which would require a change of attitude and indicated the appellant would need to show a capacity to comply with court orders so that she could avoid prison and get “back on the path where she is a useful and productive member of society”.[9]

12. The sentencing judge adjourned the sentencing process for a period of three months. In so doing her Honour made clear to the appellant what was required of her. The appellant was bailed on various conditions including a curfew, reporting and being required to undergo drug testing. Unfortunately the appellant breached the terms of her bail within days of it being granted by failing to honour the curfew. On 3 February 2015 she was granted fresh bail. On 24 February 2015 she again breached her bail by failing to appear in the Supreme Court. She was arrested on 7 April 2015.

13. On 24 April 2015 the appellant was sentenced for the original offending. The sentencing judge took into account the plea of guilty and the full co-operation provided to the authorities. A sentence of imprisonment for 21 months was imposed. Her Honour was invited to partially suspend the sentence but instead imposed a non-parole period saying:[10]

    I do not think that is appropriate, because you were given an opportunity to demonstrate that you could be responsible, turn your life around and try to get a job, et cetera.

    Now, although while you were on bail, you did, I am told, give up the drugs and you have not reoffended, you have also breached your bail three times and you did not take any, any opportunity at all to look for a job, do the diary that you were ordered to do, or otherwise just take advantage of the opportunity you were given. You have shown clear disrespect for the orders of the Court and I do not think that it is appropriate to suspend part of your sentence. Therefore I am going to fix a non-parole period of 11 months.

    Ground 1: the appellant’s youth and disadvantaged beginnings

14. The appellant submitted that little consideration was given by the sentencing judge to the appellant’s youth or her deprived upbringing. It was argued that both considerations were relevant to an assessment of her prospects of rehabilitation.

15. Both this ground and ground 2 complain of the weight accorded by the sentencing judge to particular factors in the exercise of the sentencing discretion. As the respondent observed, such questions ought properly be viewed as particulars of the ground asserting manifest excess. In DPP v Terrick; DPP v Marks; DPP v Stewart,[11] the Victorian Court of Appeal said:

    The proposition that too much – or too little – weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy – or, in a prisoners appeal, manifest excess – is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible – or necessary – for the appeal court to reach a conclusion on that question.

16. In Johnson v The Queen[12] this Court said:

    Where the ground of appeal is that the sentencing judge failed to give sufficient weight to particular factors (as the appellant asserts here), in contrast to a ground asserting that the sentencing judge disregarded a factor altogether or took an irrelevant factor into consideration, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.

17. At the hearing before this Court the appellant did not present separate argument in relation to these grounds.

18. In any event it is apparent from the sentencing remarks that her Honour did give consideration to the youth of the appellant and to the circumstances of her upbringing. It was noted that the appellant had a work history “despite (her) unfortunate upbringing”.[13] She had finished year 11 which was to her “credit”.[14] She had embarked on further education programs and had a limited criminal history before commencing her use of methamphetamines. The sentencing judge found that the offences were committed to fund her use of methamphetamines.[15]

19. The sentencing judge gave consideration to the competing influences including, on the one hand, the youth and disadvantage suffered by the appellant and, on the other, the need for general deterrence. Her Honour observed:[16]

    I take into account that you have pleaded guilty and cooperated with police and you are entitled to a reduced sentence for that. Personal deterrence must also play a part, but so must rehabilitation. You have a sad history of drug and alcohol abuse.

    Ground 2: undue weight given to the appellant’s failure to take advantage of opportunities

20. The appellant submitted that, when the sentencing judge provided the appellant with the opportunity for rehabilitation, the appellant did not have the capacity to engage in such programs successfully and particularly by herself. It was submitted that the failure was indicative of the likely chronic issues related to her drug addiction.

21. It is not disputed that the sentencing judge provided the appellant with a significant opportunity by granting her a lengthy period of bail in the hope and expectation that the appellant would obtain employment and commence along the path of rehabilitation. Unfortunately during the sentencing process the appellant: was discharged from the Sunrise Centre for breaching program rules; left the CAAPS rehabilitation program without completing it; failed to answer bail; breached her curfew hours; and failed to honour her bail conditions on a second occasion and had to be arrested. She did not make any real effort to obtain employment or to maintain a diary in that regard as directed. All of these matters suggested that her prospects for rehabilitation at that time were limited.

22. In our opinion the observations made by her Honour were appropriate.

    Ground 3: manifest excess

23. This was the principal ground of appeal. The principles applicable to an appeal claiming manifest excess are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. It must show that the sentence was clearly and obviously and not just arguably excessive.[17]

24. The appellant submitted that in the present case the offending was at the lower end of the scale of seriousness for such offending. There was no physical confrontation with the occupiers of the premises and the value of property stolen was low. Reference was made to the assistance provided by the appellant to police, including by confessing to offences of which the police were at that time unaware.

25. In determining sentence her Honour took into account the cooperation with the authorities, the relative youth of the appellant, her difficult upbringing, her drug dependency at the time of the offending and the fact that she had ceased using drugs since that time and that she had obtained a Certificate 1 in Vocational Pathways. A discount of 30% across all offences was allowed for the plea of guilty and this had been elevated because of the unsolicited confession by the appellant to the crimes constituting counts 5 and 6.

26. In our opinion the unlawful entry of the Marrara property was not at the lower end of the scale of seriousness for such offences. The offending was committed by the appellant in the company of others and at night. The property was occupied and the offenders had anticipated that would be the case. They regarded the “old man” as an “easy target”.[18] When the presence of the victim was confirmed the criminal activity continued with the appellant taking property from near to where he slept. The potential for physical confrontation was high. The property stolen included $200 cash, the iPhone valued at $600 and the keys to the motor vehicle which was subsequently driven away. The victim complained of suffering anxiety and stress and feeling unsafe in his own home.

27. It is to be noted that the sentencing judge made the sentences for Counts 2, 3 and 4 wholly concurrent with the sentence for Count 1. There was a strong argument for some accumulation to apply.

28. The unlawful entry of the Millner property was also serious although these premises were not occupied. The offending occurred at night. The appellant committed the offence notwithstanding that the victim had previously had a supportive relationship with her. The victim felt betrayed by the appellant. In this case the sentence for the stealing offence was made concurrent with the sentence for unlawful entry.

29. In our opinion the head sentence of imprisonment for 21 months is unexceptional. In addition we think the imposition of a non-parole period was, in all the circumstances, appropriate. At the time of sentence the appellant had demonstrated that she was not ready to take advantage of opportunities, such as those provided by a partially suspended sentence, which may be offered to her. She demonstrated that she had poor prospects for rehabilitation assessed at that time. It was appropriate to deal with the matter by imposing a non-parole period and providing the appellant with the opportunity to convince the Parole Board at a later time that parole should be granted. The non-parole period was set slightly above the statutory minimum.

30. It has not been demonstrated that any of the individual sentences or the total sentence were manifestly excessive.

31. The appeal is dismissed.

    _____________________________

[1] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 2.

[2] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 3.

[3] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p3.

[4] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 4.

[5] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 5.

[6] Supreme Court Transcript dated 23 January 2015, p 19.

[7] Supreme Court Transcript dated 23 January 2015, p 24.

[8] Supreme Court Transcript dated 23 January 2015, p 31.

[9] Supreme Court Transcript dated 23 January 2015, p 25.

[10] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 7 – 8.

[11] (2009) 24 VR 457 at p 459-460.

[12] [2012] NTCCA 14 at para [25].

[13] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 5.

[14] Ibid.

[15] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 6.

[16] Ibid.

[17] Whitehurst v The Queen [2011] NTCCA 11 at [12] (Riley CJ).

[18] R v Rebecca Noakes [2015] NTSC 21505550, 21514477, 21348259 (24 April 2015) Sentencing Remarks, p 2.