Noonan v R

[2021] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Noonan v R [2021] NSWCCA 35

Hearing dates:

5 February 2021

Date of orders:

12 March 2021

Decision date:

12 March 2021

Before:

Bathurst CJ at [1];
Beech-Jones J at [2];
Wilson J at [49].

Decision:

(1)   Grant leave to appeal against sentence;

(2)   Appeal dismissed; and

(3)   Set aside any previous order made under the Court Suppression and Non-publication Orders Act 2010 to the extent that it prohibits or limits the publication of the name of the appellant.

Catchwords:

CRIME —appeal against sentence— sexual offences — indecent assault — circumstances of aggravation – applicant pleaded guilty to three counts of indecent assault of a person under 16 years – three victims - relevant factors on sentence — multiple offences — accumulation, concurrency and totality– whether consideration of indicative sentences indicates error in the aggregate sentence - application of the principle of totality to aggregate sentence – manifest excess – objective seriousness – leave to appeal granted – appeal dismissed

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Aryal v R [2021] NSWCCA 2

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v R (1936) 55 CLR 499; [1936] HCA 40

Ibbottsonv R [2020] NSWCCA 92

JM v R [2014] NSWCCA 297

Kliendienst v R [2020] NSWCCA 98

Lee vR [2020] NSWCCA 244

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209

R v Stoupe [2015] NSWCCA 175

Vaughan v R [2020] NSWCCA 3

Category:

Principal judgment

Parties:

Michael Noonan (Applicant)
The Crown (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
K Jeffreys (Crown)

Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Crown)

File Number(s):

2019/56277; 2019/56258

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 December 2019

Before:

Colefax SC DCJ

File Number(s):

2019/56258

Judgment

1. BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour’s reasons.

2. BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by his Honour Judge Colefax SC for three indecent assaults committed against three different young girls in 2017 and 2018.

3. On 18 September 2019, the applicant pleaded guilty in the Local Court to three counts of indecent assault of a person under 16 years contrary to s 61M(2) of the Crimes Act 1900. Each offence carries a maximum penalty of 10 years and a standard non‑parole period of 8 years.

4. On 12 December 2019, the sentencing judge sentenced the applicant to an aggregate term of imprisonment for 5 years and 6 months with a non‑parole period of 4 years. The sentences were fixed to commence on 20 February 2019. The non‑parole period expires on 19 February 2023 and the total sentence expires on 19 August 2024. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”), the sentencing judge specified that the sentences that would have been imposed for each offence had an aggregate sentence not been imposed, was imprisonment for 2 years and 3 months with a non‑parole period of 1 year and 8 months.

5. The applicant seeks leave to appeal against his sentence. He contends that the “notional” degree of accumulation of the indicative sentences indicates that there was a “breach of the principle of totality” and that otherwise the aggregate sentence was manifestly excessive. For the reasons that follow, I propose that the applicant be granted leave to appeal but the appeal be dismissed.

Agreed Facts

6. Tendered before the sentencing judge was an agreed statement of facts. The following description of the offences is taken from that agreed statement.

7. The applicant was born in 1966 and was aged between 50 and 51 years at the time of the offending.

8. The victims of two of the indecent assault offences, T and S, were sisters. In June 2007, a friend of the applicant commenced a relationship with the mother of T and S. In September 2017 the applicant’s friend, along with T, S and their mother, moved into a house in South Western Sydney. In October 2017, the applicant stayed at the home. In November 2017, he moved into one of its bedrooms.

9. The agreed facts record that the applicant would often play with T and S and he would hug or tickle them in the lounge room or in the bedrooms. In January 2018, a friend of the applicant saw him intoxicated at a club. She went with him to T and S’s home. Based on her observations she reported to their mother and the police her suspicion that the applicant may be interfering with T and S. The police made inquiries, but no action was taken.

10. In February or March 2018, the applicant’s friend left T and S’s home but the applicant continued to live there.

11. The agreed facts state as follows in relation to the indecent assault of T:

“On one occasion between 1 October 2017 and 30 June 2018 when [T] was either 7 or 8 years old, T walked into her old room (which had become the [applicant’s] bedroom) thinking he was out of the room. The [applicant] pulled T, who was wearing her pyjamas, down onto his mattress on the floor by grabbing her leg with his hand. The [applicant] then put his body on top of T. she tried to get out from underneath by pushing him but he was too heavy. T was saying ‘get off me’, but the [applicant] did not move. The [applicant’s] groin area was touching T’s stomach at the time. While the [applicant] lay on top of T he tickled her genitals with his hands on the outside of her pyjamas …

The [applicant] did not say anything while he was tickling T and eventually T was able to remove herself from under the [applicant] by pushing him off, after which the [applicant] stopped tickling her. She then left the room and told her sister S not to go into the room because the [applicant] will ‘try to do bad stuff’.”

12. The agreed facts stated that “this incident was not isolated” but instead “there were other occasions when the [applicant] engaged in this kind of conduct with T”.

13. In relation to the second count of indecent assault committed against S, the agreed facts record as follows:

“On an occasion between 1 October 2017 and 30 June 2018 when S was 6 or 7 years old she was in her bedroom laying down at the end of the mattress when the [applicant] got up to go to the toilet. When he returned from the bathroom the [applicant] started tickling S. He wriggled his fingers over her genitals over her clothing. The [applicant] then touched her genitals under her clothes …

This incident was not isolated. There are other occasions when the [applicant] engaged in this kind of conduct with S. On some occasions when he touched her she would tell him to stop. On some occasions he touched her genitals under her clothing. On one occasion she told him to go away and she ran upstairs. The [applicant] followed her so S went to the toilet. Afterwards the [applicant] went to his bedroom. S described that she felt ‘nervous’ when the [applicant] tickled her.”

14. The agreed facts record that some time around March or April 2018, the applicant’s friend commenced dating N’s mother and soon afterwards moved into a house with her and her daughters. The applicant then moved into the same premises in June 2018. He was a co‑signatory to a lease. After he commenced living there, one of the daughters, H, became concerned about the applicant’s conduct towards her sister N. After the applicant left the home in September 2018, H reported her concerns to her mother and then approached the police. N was interviewed by police and she told them that “she didn’t want to talk about what the [applicant] did because she was afraid that people wouldn’t believe her” but the [applicant] did “rude stuff” to her.

15. The agreed facts record the following in relation to the offence against N:

“On an occasion between 31 August 2018 and 29 September 2018 (shortly before N’s 8^th birthday) the [applicant] told N to play a game to see who could lay stillest. While N was laying down, the [applicant] lay on N’s upper thighs facing her and making his groin area touch her vagina, front on. This made N feel uncomfortable. N wanted to stop playing with the [applicant], and told him twice to get off her, but he said no. After that N called out for H, who was upstairs watching a movie with their mother [and the applicant’s friend]. N told H what was happening and told her to tell [their mother and the applicant’s friend]. H ran straight to her mother’s room. [The applicant’s friend] came out leading to the [applicant] getting off N and pretending that nothing had happened. …

This incident was not isolated. There were other occasions when the [applicant] engaged in this kind of conduct with N. On some occasions the offender touched N on her bottom and chest with his hands over her clothing.”

16. After a police investigation, the applicant was arrested in February 2019.

The Sentencing Judgment

17. In his sentencing judgment, the sentencing judge noted the agreed statements and summarised their salient details. Otherwise, seven matters should be noted about his Honour’s judgment.

18. First, his Honour addressed the relevance of the uncharged conduct referred to in the agreed statement of facts. His Honour noted that the fact that the offences were part of a pattern of conduct was not to be regarded as an aggravating factor, but it equally precluded the applicant from submitting (and his Honour finding) that the acts were isolated or out of character (see R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [3] per Spigelman CJ).

19. Second, the sentencing judge assessed the objective seriousness of each offence as “approximately equidistant between the middle of the range and the bottom of the range”.

20. Third, the sentencing judge noted a victim impact statement that had been delivered on behalf of N by her father. His Honour stated that it “confirms what the Court already knew and that is that even what was formerly regarded as low level abuse of children can have catastrophic effects”. The statement described N as suffering from “multiple nightmares/night terrors” and as being “in fear that someone will attack her while she is sleeping”, being withdrawn and in constant fear of failing and fear of being attacked by someone if she left the house.

21. Fourth, the sentencing judge summarised the applicant’s subjective case which had been set out in a detailed report from a psychologist. The effect of that report was that the applicant was of Indigenous heritage and had been adopted by his maternal aunt and brought up in a “loving and caring family”. The sentencing judge noted that he had stepsiblings with whom he had a good relationship and that at the sentencing he had the support of his two brothers. The sentencing judge noted that, after leaving school, he had consistently been in employment, most recently in the transport industry. He had been in a significant relationship which resulted in the birth of a daughter in 1991, however, that relationship had ended in 2012. This coincided with a significant increase in his consumption of alcohol. Although it was not specifically referred to by the sentencing judge, the applicant’s criminal record only contained entries for drink driving offences and one charge of possessing prohibited drug. They are irrelevant to these proceedings.

22. Fifth, the sentencing judge noted that the psychological report addressed the applicant’s psychosexual history and his attitude to his offending. The psychologist had recorded the applicant as denying any sexual interest in children or young people and that “he struggled to identify what about his [criminal] conduct constituted sexually abusive behaviour”.

23. The sentencing judge noted (correctly) that the report revealed a “complete lack of insight” on the part of the applicant and his offending and as a consequence he had “minimised” his criminality. Having regard to the contents of that report, the sentencing judge noted that the applicant had not expressed any remorse and concluded that the applicant’s prospects of rehabilitation “are therefore guarded”.

24. Sixth, the sentencing judge recorded the applicant was to be given a discount of 25% “in relation to the indicative sentences” on account of his early plea. His Honour noted that, absent the discount, the indicative sentence for each offence would have been 3 years imprisonment.

25. Seventh, the sentencing judge declined to make a finding of special circumstances to enable a variation in the maximum ratio of the non‑parole period to the head sentence (Sentencing Act, s 44(2)). His Honour concluded that the parole period under the aggregate sentence that was imposed was adequate for his rehabilitation.

Ground (a): Totality

26. The applicant’s first ground of appeal contended that the sentencing judge erred “(a) in his consideration of the indicative sentences leading to error in the process of determining the aggregate sentence”.

27. In support of this ground, the applicant’s written submissions referred to the principles stated by N Adams J (with whom Simpson AJA and Rothman J agreed) in Kliendienst v R [2020] NSWCCA 98 (“Kliendienst”), namely, that “the totality principle still applies to aggregate sentences” (at [84]), that “failure to properly apply the totality principle must be able to be gleaned from the indicative sentences when compared with the aggregate sentence” (at [85]) and that, although “it is not possible to ascertain the degree of concurrence and accumulation in aggregate sentence by reference to the indicative sentences, it is not impermissible to have regard to the indicative sentences when looking at whether error is disclosed in the aggregate sentence” (at [103]).

28. The submissions then state:

“… the aggregate sentence imposed ultimately breached the principle of totality given the lengths of the indicative sentences so indicated. The aggregate head·sentence and aggregate non-parole period respectively imposed represented a multiple of almost 2.5 times each indicative sentence. As there were only three (3) indicative sentences to consider, this effectively (and erroneously) amounted to a gradation or so just short of whole accumulation of each indicative sentence upon each other indicative sentence. That error in the consideration of the indicative sentences necessarily led to an error.”

29. Consistent with his duty to the Court, in oral argument on the appeal counsel for the applicant drew the Court’s attention to other authorities which arguably diverge from Kliendienst and which counsel apprehended might foreclose this argument. In light of that submission it is necessary to address the alleged divergence.

30. In Lee vR [2020] NSWCCA 244 at [32] (Payne JA and Fagan J agreeing), I stated the following in relation to appellant review of an aggregate sentence:

“… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; “JM”). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; “Beale”). The “potentials for accumulation” of the various notional sentences can be examined to determine whether the “aggregate sentence represents a sound exercise of sentencing discretion” (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The “principle”, or even ultimate, “focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).” (emphasis added)

31. On its face, there is a tension between the emphasised portion of this passage and the statement by Johnson J in Vaughan v R [2020] NSWCCA 3 at [91] (“Vaughan”) that the “principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, have no application where an aggregate sentence is used by the sentencing Court”, although his Honour added that the “principle of totality has operation”. In Vaughan, R A Hulme J agreed and added as follows (at [117]):

“The applicant's argument proceeds on a premise that the indicated sentence for one offence is "accumulated" upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being "notional accumulation" – but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is "notional".”

32. His Honour recently restated this in Aryal v R [2021] NSWCCA 2 at [46] to [47].

33. For my part, I consider that on closer analysis there is no divergence in these authorities. The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take “into account some material consideration”: House v R at 505). However, any analysis that seeks to reconstruct some precise starting and end point for the indicative sentences in order to show error in the fixing of the aggregate sentence is misconceived as aggregate sentences were intended to avoid sentencing judges undertaking that very process. It is to that proposition which I understand the above passages from Vaughan were directed and I did not intend to suggest the contrary by the emphasised comments in Lee set out above. That is how N Adams J reconciled her statements in Kliendienst with Vaughan (Kliendienst at [100]) and I respectfully agree with her Honour. I note that in imposing an aggregate sentence in R v Stoupe [2015] NSWCCA 175 (“Stoupe”), Johnson J considered “notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed” (at [128]).

32. This is reinforced by the oft cited passage from the judgment of Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] which answers the question of whether sentences should be “imposed concurrently or consecutively” by “the application of the principle of totality of criminality”, namely, “can the sentence for one offence comprehend and reflect the criminality for the other offence?”. All of the above authorities accept the application of the principle of totality to the determination of the length of the aggregate sentence.

33. It follows that the argument sought to be made in the above extract from the applicant’s submissions is not foreclosed although, as stated, it can only be directed towards establishing House v R error in the relation to the interpretation or application of the totality principle. However, I am not satisfied that any such error has been established.

34. As noted, there were three different victims of the offences. They were committed on different occasions. The only common aspect of the offending for two of them is that the victims lived in the same home and had the same mother. In his judgment, the sentencing judge stated:

“The indicative sentences would not have been totally concurrent but, in each case, there would have been partial accumulation to reflect that there are discrete victims.”

37. Implicit in his Honour’s reference to “partial accumulation” is that, had his Honour not been imposing an aggregate sentence, then there would also have been partial concurrency, a consequence that in this case would only follow from an application of the totality principle. When that is considered along with a comparison of the combined length of the indicative sentences (81 months) to the total aggregate sentence (66 months), it is self-evident that his Honour had regard to totality considerations in imposing sentence. Otherwise, a complaint that insufficient weight was given to totality considerations is not an error in its own right but instead only an aspect of a complaint of manifest excess, a matter considered next.

38. I would reject ground (a).

Ground (b): Manifest Excess

39. The second ground of appeal contends that the aggregate sentence was manifestly excessive.

40. This ground of appeal was described by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] as follows:

“As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; “Wong”], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

41. The application of this principle to aggregate sentences is addressed in the above extract from Lee. To that discussion should be added the statement by R A Hulme J in Aryal (at [50]) that, at least where totality considerations are said to bear upon whether a sentence is manifestly excessive, then “rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is … ‘whether the aggregate sentence reflects the total criminality involved’” (citing JM v R [2014] NSWCCA 297 at [40(13)]).

42. In support of the contention that the sentence was manifestly excessive, the applicant relied on two decisions of this Court namely Stoupe and Ibbottsonv R [2020] NSWCCA 92 (“Ibbottson”). Stoupe was a Crown appeal from an aggregate sentence of 16 months with a non-parole period of 8 months in respect of three indecent assaults and an offence of aggravated filming of a person engaged in a private act contrary to s 91K(3) of the Crimes Act. The respondent to the appeal was a supervisor at an after-school care centre who committed assaults on the same victim over a period of just under three months (at [12] to [29]). This Court tripled the aggregate sentence to 48 months and imposed a non‑parole period of 2 years and 6 months. It specified indicative sentences of 15 months with a non‑parole of 10 months, 18 months imprisonment with a non-parole period of 12 months and 27 months imprisonment with a non-parole period of 18 months for the three indecent assault offences (at [126]). The latter three of those assaults was assessed as being “above the mid-level” of objective seriousness (at [53]). There was a finding of special circumstances (at [130]).

43. In Ibbotson, this Court imposed an aggregate sentence of 5 years and 6 months with a non‑parole period of 2 years and 9 months for five indecent assaults (at [135]). The indicative sentences for the assaults ranged between 10 months with a non‑parole period of 7 months to 54 months imprisonment with a non‑parole period of 3 years imprisonment (at [129] to [133]). The five offences were committed by a grandfather against his six-year-old granddaughter over a two‑day period (at [28] to [39]). By the time of the offending, he was 74 years. He had no criminal record prior to the commission of these offences, was in poor health and his wife was heavily dependent on him (at [164] per N Adams J). There was a finding of special circumstances (at [58]).

44. Neither Stoupe nor Ibbottson provide any support for this ground of appeal. The indecent assaults in Stoupe involved a grave breach of trust. However, unlike this case, they concerned the same victim and did not occur in the victim’s home. Most of the offences considered in Ibbottson were more serious than this case but they involved the same victim and the period of the offending was much shorter. Each of the offenders in Stoupe and Ibbottson had much stronger subjective cases than this applicant. Unlike this applicant, each of the offenders in Stoupe and Ibbottson was found to be unlikely to reoffend (Stoupe at [45]; Ibbottson at [51]).

45. Otherwise, the applicant’s written submissions contended that the aggregate sentence was manifestly excessive having regard to the findings of objective seriousness for each offence, namely “approximately equidistant between the middle and the bottom of the range”, the applicant’s subjective case and the 25% discount for the applicant’s plea. I disagree. As noted, the maximum penalty for the offence is 10 years imprisonment. The standard non-parole period is 8 years. Even allowing for the problematic nature of a standard non‑parole period that is 80% of the maximum penalty, an offence under s 61M is nevertheless a serious offence. The offences involved three separate and very young victims who were indecently assaulted in their own homes. The long-term effects of this type of offending on victims are only just being understood. I consider that the aggregate sentence is within the range of sentences that “reflect ... the totality criminality involved” (Aryal at [50] per R A Hulme J).

Relief

46. At the hearing of the appeal, the Court queried with the parties the basis upon which a non-publication order had been made in respect of the identity of the applicant. After the hearing, the solicitor for the applicant submitted that the order should continue to apply to these proceedings because the disclosure of his name would be “likely to lead to the identification” of T, S and N (Crimes Act, s 578A). It was submitted that this identification was likely to occur because it was known that the applicant had lived with T, S and N for various periods throughout 2017. Presumably, it was said to follow that an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 was justified on the ground specified in s 8(1)(d), namely that “the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature”. The Crown submitted that no such order was justified as the publication of the name of the applicant along with the area in which he resided at the time of the offences would not be “likely to lead to the identification of the complainants” (Crimes Act, s 578A).

47. Nothing in this judgment indicates the suburb of Sydney in which the victims lived or reveals any detail which would otherwise identify them. Even in the absence of an order under the Court Suppression and Non-publication Orders Act 2010 the victims still have the protection of s 478A of the Crimes Act and any reader of this judgment must observe it. In those circumstances no order suppressing the applicant’s identity is justified.

48. Accordingly, I propose the following orders:

1. Grant leave to appeal against sentence;

2. Appeal dismissed; and

3. Set aside any previous order made under the Court Suppression and Non-publication Orders Act 2010 to the extent that it prohibits or limits the publication of the name of the appellant.

   49. WILSON J: I agree with Beech-Jones J.

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Decision last updated: 12 March 2021