Noonan v The Queen

[2011] VSCA 313

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0480 

CARA NOONAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2011
DATE OF JUDGMENT:	17 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 313
JUDGMENT APEALED FROM:	DPP v Noonan (Unreported, County Court of Victoria, Judge Jenkins, 16 December 2010)

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CRIMINAL LAW – Sentence – Armed robbery – New evidence – Bipolar disorder – Probable contribution to offending – Appeal allowed – Appellant re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Ann Valos Criminal Law
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. The appellant, Cara Noonan, a woman now aged 29, pleaded guilty in the County Court to four counts of armed robbery.  On 16 December 2010 she was sentenced as follows: 

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Armed robbery	25 years’ imp	3 year’s imp	Base
2	Armed robbery	25 years’ imp	3 years’ imp	6 months’ imp
3	Armed robbery	25 years’ imp	3 years’ imp	-
4	Armed robbery	25 years’ imp	3 years’ imp	6 month’s imp
Total Effective Sentence:		4 years’ imp
Non-Parole Period:		15 months’ imp
Pre-sentence Detention Declared:		27 days
6AAA Statement:		TES:  7 years’ imp NPP:  5 years’ imp
Other orders: · Disposal order pursuant to s 78(1) of the Crimes Act 1958 in respect of one item. · Retention order pursuant to s 464ZFB(1) of the Crimes Act 1958. · 4 orders for compensation pursuant to s 86 of the Sentencing Act 1991.

Grounds of Appeal

1. The appellant now appeals by leave from the sentence on the following grounds:

Ground 1:That in light of fresh evidence, relating to the issue of the appellant’s Bi Polar Disorder, the sentencing discretion should be re-opened.

Ground 2:The learned sentencing judge erred in failing to give sufficient weight to the appellant’s mental health difficulties. 

Circumstances of offending

1. On 21 November 2009, at about 10.30pm, the appellant entered a petrol station in Deer Park.  She approached the counter, purportedly to purchase a chocolate bar.  When the cash register was opened, she produced a stainless steel kitchen knife, stood on shelves in front of the counter, leaned over with the knife raised above her head and demanded money from the register.  She also demanded that the cashier give up her purse.  The victim did not do so.  The appellant took approximately $700 from the register. (Count 1)

1. On 22 November 2009, at about 3.35pm, the appellant committed an armed robbery at a petrol station in Brooklyn.  She approached the counter, purportedly to purchase a drink, and when the cash register was opened produced the same knife and demanded money.  She took approximately $400. (Count 2)

1. On the same night, at about 10.15 pm, the appellant committed a further armed robbery at another petrol station in Brooklyn.  Again she approached the counter, purportedly to purchase a drink, and, as she was being handed change, produced the same knife, pointed it at the attendant and demanded that he open the cash register.  She then lent over and grabbed all of the notes in the cash register, approximately $375. (Count 3)

1. At 12.00am on 24 November 2009, at a petrol station in Burnside, the appellant entered the premises wearing a beanie for disguise.  She approached the counter, purportedly to purchase a chocolate bar.  As the attendant put the money away, the appellant produced the same knife and demanded money whilst promising the attendant that she would not hurt him.  She took approximately $498. (Count 4)

Personal circumstances

1. The appellant was born on 26 January 1982.  At the time of sentence she was aged 28. 

1. Her parents divorced when she was aged seven.  She was sexually abused by her paternal grandfather.  She was bullied at school because of her religious background.  She left school during Year 12 because of drug use.

1. The appellant began using drugs in her teenage years.  She progressed to speed and heroin.  She overdosed three times and developed a drug induced psychosis due to heavy daily use of marijuana.  When she was 18, she started treatment for her drug problem, first as an inpatient and then as an out‑patient.  The treatment was successful.  She remained drug‑free for eight to eight and a half years.  She completed a TAFE Certificate 3 in Disability, Community and Aged Care and she had employment of a number of kinds.

1. In about 2005, the appellant commenced a relationship with a man by whom she had a son.  The relationship was volatile.  She was often physically assaulted.  When she was 20 weeks pregnant, she was kicked in the stomach and had to be hospitalised for two months.  She gave birth at 32 weeks to a very small baby.  The baby had various complications and had to remain in hospital for seven weeks, undergoing minor surgery at that time.

1. In 2009, at a time when the appellant was confronted by various stresses, she relapsed into heroin use.  She was very distressed and depressed at the time. 

1. The appellant attempted to cope with her relapse by attending detoxification for two weeks.  But she relapsed into drug use again in September 2009. 

1. The offending with which the Court is now concerned occurred in a four‑day period when she was using heroin. 

1. The appellant made further attempts, after offending, to deal with her drug use.  It appears that her attempts, at time of sentence, had been effective. 

1. The appellant, I should note, has other health problems.  Before being sentenced, she was diagnosed as suffering from hepatitis C and severe liver damage,  apparently a consequence of her drug use. 

1. From a time before this offending, the appellant and the father of her child were embroiled in controversy concerning custody and access matters.  That controversy was current at the time of sentence, and it so remains.  Counsel for the appellant told us this morning that there is to be a further hearing in Family Court proceedings in mid December this year.

Disposition of the appeal

1. The grounds upon which the appellant relies are interconnected, but in my view ground 1 is of principal importance.  It contends that there is fresh evidence relating to the questions whether the appellant suffers bipolar disorder and whether that disorder contributed to her offending.  It asserts that, upon receipt of such evidence, the appellant will fall to be re-sentenced.

1. As fresh evidence, the appellant sought to rely upon a Prisoner Health Summary which was produced, it seems, in March of this year;  and upon a report of Dr Barrie Kenny, psychiatrist, dated 26 October 2010.

1. The gist of those documents is two‑fold.  First, each document asserts with some confidence that the appellant does suffer from bipolar disorder;  and, either directly or by implication, that she suffered from that condition at time of offending.  Second, either directly or implicitly, each opines that the appellant's offending was contributed to by her bipolar disorder, notwithstanding that it was connected also with her need for money to feed her heroin habit.

1. Counsel for the Crown conceded that the Prisoner Health Summary constituted fresh evidence.  He made no such concession in respect of Dr Kenny's report of 26 October 2010.  That was because it preceded the date of sentence – albeit, as it appears, that the appellant's advisers were unaware of its existence.[1] 

   [1]It was prepared in respect of the Family Court proceeding.

1. There is no real point in analysing further the question whether Dr Kenny's report ought be received as fresh evidence.  That is because counsel for the Crown conceded, some fresh evidence being receivable, that the appellant fell to be re‑sentenced – in which circumstances Dr Kenny's report was admittedly part of the material properly before the Court.

1. Today counsel for the appellant tendered a further report from Dr Kenny, dated 13 October 2011.  The Court received it, and again it is material which bears upon the sentence which ought be imposed.

1. In my opinion the judge could not be criticised for concluding, as she did, that there was ‘some application for the principles in Verdins case’ – this bearing upon moderation of general deterrence as a sentencing consideration.  On the material before her Honour, it was far from clear that a diagnosis of bipolar disorder should be made;  and there was equivocal evidence whether, in the event that the disorder was present, it had played any part in the appellant's offending.

1. But the situation is now changed.  The material before the Court, to which may be added the opinions cautiously expressed by Dr Akinbiy dated 13 November 2010 and Dr Ong of Forensicare dated 25 November 2010, enables satisfaction on balance of probabilities that, at time of offending and at all times thereafter, the appellant has suffered from bipolar disorder; and that it did contribute to her offending because, in circumstances where she needed money for drugs, she was affected by poor judgment and increased risk‑taking behaviour by reason of her disorder.  Further, the presence of the disorder at time of offending and subsequently, does mean that there should be some, though modest, amelioration of the considerations of general and specific deterrence.  Further again, whilst in prison there was a period of instability in the appellant’s disorder.  It meant that she was admitted to the psychiatric unit of the prison, and thus that the burden of imprisonment has been greater for the appellant than for a person in normal, robust health.  In all, the principles of Verdins have clear application in a number of respects, and taken together with all the other circumstances, they call for a different and lesser sentence.

1. I do not accept that the appellant's offending, committed over a three‑day period, was such that there ought be no cumulation between sentences.  On the other hand I do consider that there should be no cumulation of sentence passed for the two offences that were committed within a short period on the one day.

1. I would allow the appeal and on each of counts 1 to 4 I would impose a

sentence of two years' imprisonment.  Treating the sentence on Count 1 as the base sentence, I would cumulate six months' imprisonment on each of counts 2 and 4 on each other and on the sentence on Count 1.  The total effective sentence would be three years' imprisonment. 

1. I would fix a non‑parole period of 11 months' imprisonment.  I would make an appropriate declaration in respect of pre‑sentence detention.

1. I would confirm the other orders made below and in respect of s 6AAA of the Sentencing Act1991, I would state that were it not for the appellant's guilty plea, I would have imposed the total effective sentence and the non‑parole period which the judge imposed.

WEINBERG JA:

1. I agree.

ASHLEY JA:

1. The orders of the Court are:

1.        The appeal is allowed.

2.        The sentence passed below is quashed.  In lieu thereof, the appellant is sentenced as follows:

Count 1:        two years' imprisonment

Count 2:        two years' imprisonment

Count 3:        two years' imprisonment

Count 4:        two years' imprisonment

The Court directs that six months of the sentence on Count 2 and six months of the sentence on Count 4 are cumulated on each other and on the sentence on Count 1.  The total effective sentence is three years' imprisonment. 

The Court fixes a non‑parole period of 11 months' imprisonment.

1. The Court confirms the other orders made below. It makes a s 6AAA statement to the effect that but for the appellant pleading guilty it would have imposed a total effective sentence of four years’ imprisonment and a non‑parole period of 15 months’ imprisonment.

1. The Court makes a declaration in the usual form in respect of pre‑sentence detention, the period being 333 days including this day.

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