R v Noronha - [2024] NSWDC 296

District Court

New South Wales

Medium Neutral Citation: R v Noronha [2024] NSWDC 296
Hearing dates: 30 April 2024
Date of orders: 30 April 2024
Decision date: 30 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months

Catchwords:
CRIME — Child sex offences — Indecent assault of a child under 16 years — Intentionally sexually touch a child 10-16 years — Intentionally sexually touch a child under 10 years
SENTENCING — Aggravating factors — Breach of trust — Multiple victims
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — No record of previous convictions — Admissions before complainants go to police — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Special circumstances

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act1900 (NSW)
Crimes (Sentencing Procedure Act) 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
BT v R [2010] NSWCCA 267
Cahyadi v R [2007] NSWCCA 1
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Smith (1987) 44 SASR 587.
R v Thomson and Houlton [2000] 115 A Crim R 104
Van Ryn v R [2016] NSWCCA 1

Category: Sentence
Parties: Jose Noronha (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
S Fraser (for the offender)
Solicitors:
Legal Aid (NSW) (for the offender)
N Olender solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/287412
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.

JUDGMENT – ex tempore revised

Introduction

Jose Noronha was born in 1956. He came to Australia with his family when he was a teenager. He established himself in Australia, and although he received only limited schooling here, he was able to work, marry, lead a productive life in the community. That productive life was interfered with when he was injured at work and underwent surgery in 1994. He reports ongoing physical pain since then and has been on a disability support pension.
There are a number of matters in his background to which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Noronha

Details

AGLC: R v Noronha [2024] NSWDC 296
Case: [2024] NSWDC 296
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case before the court was R v Noronha, where the defendant was charged with multiple counts of indecent assault of children under the age of 16. The court was required to consider the sentencing of the defendant, who had pleaded guilty to the charges, and determine an appropriate aggregate sentence that reflected the gravity of the offences and the relevant sentencing principles. The court also had to weigh various aggravating and mitigating factors in determining the sentence.

The legal issues before the court included the identification and application of the relevant aggravating and mitigating factors, the role of sentencing guidelines, and the determination of an appropriate aggregate sentence. The court considered the breach of trust by the defendant, the number of victims, the absence of a criminal record, the defendant's admissions before the complainants reported the matter to the police, and the defendant's plea of guilty as mitigating factors. The court also considered the defendant's age, health issues, and special circumstances as additional mitigating factors. The court had to balance these factors against the objective seriousness of the offences, the moral culpability of the defendant, and the purposes of sentencing.

In determining the appropriate sentence, the court applied the principle of instinctive synthesis, considering all the relevant factors and giving appropriate weight to each. The court found that the offences were of significant gravity, involving multiple victims and a breach of trust. The court also found that the defendant's age, health issues, and special circumstances were relevant mitigating factors, as was the defendant's plea of guilty and admissions before the complainants reported the matter to the police. The court ultimately determined that an aggregate sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months was appropriate.

The court made an order for the defendant to serve an aggregate sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months. This sentence reflected the court's consideration of the aggravating and mitigating factors, the relevant sentencing principles, and the objective seriousness of the offences. The court's decision provides guidance for future cases involving similar offences and sentencing considerations.

Orders

Orders of the court

Aggregate sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Noronha [2024] NSWDC 296
Hearing dates:	30 April 2024
Date of orders:	30 April 2024
Decision date:	30 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months
Catchwords:	CRIME — Child sex offences — Indecent assault of a child under 16 years — Intentionally sexually touch a child 10-16 years — Intentionally sexually touch a child under 10 years SENTENCING — Aggravating factors — Breach of trust — Multiple victims SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — No record of previous convictions — Admissions before complainants go to police — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Special circumstances
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act1900 (NSW) Crimes (Sentencing Procedure Act) 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 BT v R [2010] NSWCCA 267 Cahyadi v R [2007] NSWCCA 1 Crimes (Sentencing Procedure) Act 1999 (NSW) Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Smith (1987) 44 SASR 587. R v Thomson and Houlton [2000] 115 A Crim R 104 Van Ryn v R [2016] NSWCCA 1
Category:	Sentence
Parties:	Jose Noronha (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: S Fraser (for the offender) Solicitors: Legal Aid (NSW) (for the offender) N Olender solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/287412
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.