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

1. 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.

2. There are a number of matters in his background to which I will soon refer, particularly his limited education and vocational experience and hardship, both in his home country and growing up locally. But for all intents and purposes he appeared to be a law-abiding, god-fearing member of our community.

3. He was friends with a family who he met through the church. They had a number of children. The father of that family and he became close friends. Noronha and his wife would often babysit to help out that family. Noronha was trusted. He was expected to treat the children as if they were his own, and he failed in that trust to his friends, their children and his own family.

4. From about 2013 through until 2022 Noronha would, if the opportunity arose, touch the female children of his friend’s family. On one occasion in December 2020 the eldest daughter confronted him and asked him to stop. He said, “I’m sorry, please don’t tell your dad”. She replied, “I will get my father into this if you ever touch one of my sisters again”.

5. She later said she “didn’t tell anyone … because she believed it would bring shame on [her] family and upset everyone”. Despite this, things continued so far as some of her younger siblings are concerned.

6. In September of 2022 the oldest daughter, Guinevere (a pseudonym), disclosed to her parents that she and her sisters had been inappropriately touched over many years. Her parents spoke to each other and their children. The father then contacted the accused and confronted him. He told him, “if you don’t hand yourself into the police I will contact the police”. Having been given that ultimatum, but nevertheless unusually in the experience of the Court, Noronha went to Wollongong Police Station. He disclosed that he had sexually touched a number of children and wanted to tell police about it. He was, as a result of his admission, arrested. He voluntarily took part in an interview with police.

7. In the course of that interview, he made admissions in relation to the children Audrey, Emma and Joselyn (all pseudonyms). Those admissions are quite similar to the allegations eventually put before the Court. In relation to the youngest of the children, Tyla (a pseudonym), he admitted only one event, whereas a number of other allegations are now before the Court. So far as the oldest child Guinevere is concerned, at that stage he made no admissions.

8. Noronha has been in custody since 26 September 2022. When he was before the Local Court, charges and facts were agreed. They have been put before this Court. Although he has made no admissions in relation to charges or matters on a Form 1 relating to Guinevere, he today, through his counsel and as he had in the Local Court, accepted his guilt in relation to the three matters concerning her. He also accepted his guilt in relation to three matters concerning Tyla, one matter in relation to Audrey, two in relation to Emma, and two in relation to Joselyn. By agreement, only one charge in relation to each child is put before the Court for sentence.

Matters on a Form 1

9. So far as Guinevere, Emma, Joselyn and Tyla are concerned there are matters (or a matter for Emma) before the Court pursuant to a Crimes (Sentencing Procedure Act) 1999 (NSW) Form 1. I do not sentence for the matters on the Form 1, but they do have relevance and must be taken into account as part of the sentencing process. Care needs to be taken, particularly when I assess the objective seriousness of the matters for sentence. Form 1’s do not form part of that exercise. The matters that lead to the Form 1 charges and the original admissions indicate the extent of the offender’s crimes, the period over which they occurred and the fact that these were not isolated incidents.

10. When I come to sentence for the matters to which Form 1’s attach, there must be an increase here in the sentence imposed to recognise the need for personal deterrence and retribution for the crime for sentence: 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 at [39]-[42]. These are not notional increases; they can be substantial. But care must be taken when I come to assess all relevant matters not to double-count the matters as against the offender.

The matters for sentence

11. So far as Guinevere is concerned there is a charge pursuant to s 61M(2) Crimes Act1900 (NSW), as it then was. That offence carries a maximum penalty of 10 years imprisonment and the standard non-parole period of 8 years.

12. So far as Audrey is concerned the charge is Intentionally Sexually Touching a Child Aged between 10 and 16: Crimes Act 1900, s 66DB(a). That offence carries a maximum penalty of 10 years imprisonment.

13. So far as the children Emma, Joselyn and Tyla, in relation to each of them there is a charge of Intentionally Sexually Touching a Child under 10 years. That charge pursuant to s 66DA(a) Crimes Act carries a maximum penalty of 16 years imprisonment and the standard non-parole period of 8 years.

Maximum and standard non-parole periods

14. The maximum penalty and standard non-parole period are important guides to the exercise of the Court’s discretion. Content should be given to the standard non-parole period. So far as the s 61M(2) offence, the ratio between the standard non-parole period and the head sentence was the subject of justifiable criticism and has since been, in the newer offences, adjusted: BT v R [2010] NSWCCA 267.

15. The maximum and standard non-parole period are, as I said, important guides. They signal what should be obvious to all right-thinking people, that the Parliament, on behalf of the community, recognised the considerable harm that can be, and much more often than not, is caused to children by exposure to premature sexual activity. That harm can be both physical and psychological, it can be short term and long term. There is at law and by application of common community standards, an absolute prohibition on sexually touching children because of the assumption, justifiable and well-documented, that harm can be caused by such exposure.

16. When I come to consider the appropriate penalties, I have to consider the extent of the crime and impose proportionate sentences. I do so on the understanding that every act involving sexual exploitation of a child is serious. I have to consider the actual character of the assaults, including the degree of physical contact involved. I have to consider the relationship between the offender and the children. I have to consider the degree of contact and the length of time over which the event occurred. I have to consider that this was an older man, and the children were very young. He was baby-sitting them. He was trusted to care for them. Having taken on the role he exploited that opportunity, so far as each child is concerned.

Agreed Facts

Guinevere

17. There are Agreed Facts before the Court. In brief summary, Guinevere spoke to police when she was 15 years old. The charge for sentence is said to have occurred between April 2013 and April 2014 when she was 6 years old. It occurred while the offender was baby-sitting her. He touched her shoulder, and the upper side of her body. He touched her directly under her breasts. He rubbed his leg on her leg and stroked her upper thigh with his hand. She did not tell anybody at the time.

18. The matters on the Form 1 relates to when she was 12 and 13 years old. Again, they involve skin-on-skin touching, first on the breast area and then under her top and shorts. The second matter, including his stroking breasts and moving his hands down to her vaginal area.

Audrey

19. So far as Audrey is concerned the matter for sentence occurred in 2019 or 2020, again while the offender was babysitting. It involved him touching the complainant’s body with his hand on her chest, under her crop top and her lower or vaginal area very close to her vagina. She was at the relevant time 10 years old.

Emma

20. So far as Emma was concerned, she was interviewed when she was 11. She relates an event that occurred between December 2018 and February 2020 when she was aged between 7 and 9. She recalls going to the accused’s house for the day and him putting his hand inside her underwear and feeling around making “weird slurping sounds”. She says, “he goes all happy” after he touched her. She said, she did not feel any pain, but she felt awkward.

21. There is a matter on a Form 1. Later in 2021 or 2022 when she was 10 or 11, she recalls the offender putting his hands up her thigh under her shorts, touching the vaginal area. She said what he did made her feel “very uncomfortable”. The facts note that this was not an isolated incident.

Joselyn

22. Joselyn spoke to police when she was 10. The charge for sentence (Sequence 15) occurred 2020 or 2021. She was at her home being babysat. The offender sat next to her, put her on his lap, placed his hands under her clothing touching her vagina and her bottom. She was aged 7 to 9 years old at the time.

23. The matters on the Form 1 occurred sometime later when she was 9. Again, he touched her awkwardly with his hands on her vaginal area underneath her clothing and over the top of her underwear. She said she felt scared when she had to go in and see the accused at his house.

Tyla

24. Tyla was 8 when she spoke to the police. She disclosed the accused was “touching some parts that should not be touched” while she played the computer.

25. Sequence 19, the matter for sentence, involves events which occurred between 2020 and 2021. The complainant was in the offender’s bedroom playing his computer. Again, she says he was “touching some parts that shouldn’t be touched”. He touched her vagina with his hand on the outside of her clothing and moved his hand around and he placed his hand inside her pants on top of her underwear for about 2 seconds, he started on top and went down to her underwear. She then made an excuse to leave.

26. The Form 1 offences relate to a period in 2022 when she was 7 or 8. The first matter involved touching under and in between her pants and undies. The second matter, Sequence 21, occurred when he sat next to her and with his hand rubbed her near her vagina on the outside of her clothing. She did not disclose these events to anyone.

27. None of the children reported physical pain but each would have been embarrassed, awkward, upset by what occurred. The law requires some gradation between each offence, given the facts that I have set out. These will be reflected in part, in the penalties that must be indicated for each offence.

28. When doing so I focus, so far as each matter is concerned, particularly on the age of the child relative to the offender. It needs little elaboration to say that each offence for sentence, as the defence accept, a serious example of its type. They were not transient touchings. They were deliberate acts by an older, trusted man against young children in his care. It is accepted that so serious are the matters that a custodial sentence of some length should be imposed for the matters for sentence, and where a Form 1 attaches, that there must be an increase in the penalty and that increase should not be notional.

Early plea of guilty

29. The early plea of guilty requires a reduction in the otherwise appropriate sentence to be indicated of 25% to reflect its utilitarian value. Where an offender makes admissions which he does not later retract, or assists the course of justice, and because of their admissions and early acceptance of responsibility proceed to sentence rather than exposing a child to the traumas of giving evidence or having their account disbelieved, the courts for both practical and principled reasons, will reward that behaviour in part to encourage others to come forward.

30. Here, while the offender went to police knowing his former friend would be reporting the matter, he did so voluntarily. So far as three of the children are concerned his admissions match their later statements. He has yet to acknowledge, apart from his pleas and acceptance of the matters on the Form 1, any actions with regard to Guinevere. So far as Tyla is concerned, while he only disclosed one matter so far as she is concerned, he accepted his guilt in relation to the matter for sentence and the two matters on the Form 1.

31. Mr Fraser, who appears for Noronha, submits that in addition to the statutory utilitarian reduction there should be a significant reduction in sentence because of those actions: R v Thomson and Houlton [2000] 115 A Crim R 104 at [3]. He made reference to cases involving s 23 Crimes (Sentencing Procedure) Act.

32. He accepts that this is not a matter of a disclosure of unknown guilt, as there are rare occasions when someone goes to the police station and makes admissions even though there is no prospect that the victims or those acting on their behalf will report the matter.

33. It is not a sentencing factor that could be quantified in percentage terms. Ms Olender, senior solicitor for the Director of Public Prosecutions, accepts that so far as three of the children are concerned, the admissions do encompass the charges presently before the Court. But she cautions, properly, that there were no admissions in relation to Guinevere and limited admissions so far as Tyla is concerned.

34. Nevertheless, she accepts this is an unusual case. Although, as she rightly points out, the offender for many reasons appears to have little insight into the reasons for his actions and the potential harm that his actions caused to each of the children and the whole family relationship and dynamic, she accepts that there is considerable value in the admissions made because effectively it means convictions were inevitable. She accepts that it is unusual indeed for children to be interviewed after significant admissions are made, and that applies so far as to four of the five children are concerned. There must be some reduction in the otherwise appropriate sentence beyond the utilitarian value of the plea to reflect those matters.

Subjective case

35. The case for the offender is set out in a comprehensive report of Dr Klamer dated 29 February 2024 (Exhibit 1). It notes that Noronha comes from a disadvantaged background, particularly due to his parents’ poverty, both in their original country and when they first came to Australia. It notes that in the family home he was exposed to poverty, excessive alcohol use, and violence from his father. It notes that as a child he himself was exposed to premature sexual activity.

36. It notes that he had little schooling or education but was able to start work when he was 15. He continued working until he received a workplace injury from which he still suffers. He dealt with the pain caused by that injury by using prescribed opioid medicine. Opioids are not available to him while in custody. He has a number of other physical health conditions and reports diminution of sexual libido, perhaps as a consequence of his opioid medication. He has had cysts in his groin, he has high blood pressure, rheumatoid arthritis and Bursitis.

37. Dr Klamer notes at par [22]:

“In summary, Mr Noronha’s physical and sexual health conditions appear to have contributed, at least in part, to the commission of the index offences. That is, Mr Noronha had difficulties controlling his general and sexual self-regulation, relying on opioid medication to cope with his high levels of pain. Although unclear given his reduced level of insight, it is likely that Mr Noronha committed the index offences partly as a way to meet his underlying sexual intimacy needs, with his history of sexual abuse impacting upon his ability to engage in prosocial sexual regulation.”

38. The report also notes problematic gambling.

39. Noronha has never previously come before court. He was, until he commenced committing these offences, a person of good character. He is a religious man, but despite his religion and despite his prior good character he committed these offences over many years against a number of children.

40. Dr Klamer tried to assess, using both static and dynamic measures, his risk of reoffending. She notes that he has denied any reemergence of depression or other psychological symptoms. She notes he relies “on his faith to assist him in coping in custody”. That he is having trouble sleeping at night. In terms of risk on both static and dynamic measures, she notes he poses a relatively “low risk of reoffending”.

41. She says his “primary risks relate to deficits in intimacy skills, and difficulties with appropriate sexual and general self‑regulation”. She notes that the highest risk will be if he is brought into contact with young children, and that that risk will be present in the community despite his age. She notes that, as occurred in the past, extra stressors will make this risk greater, particularly if he is under the influence of medication or experiencing difficulties coping with familiar and financial stresses.

38. She also notes his “insight into his underlying factors was limited and should be addressed in detailed treatment”. But that she recommends an “intensive residential treatment program” dealing with his health conditions, particularly his long-term use of opioids and over-reliance on that medication, and that care will need to be taken so far as access to children is concerned on release. The report will be forwarded to Corrections.

Submissions

43. Mr Fraser and Ms Olender, senior solicitor for the Director of Public Prosecutions, set out the relevant principles which I have sought to address. There is no significant difference between them in terms of principle, any differences were matters of emphasis and what weight needs to be given to the various principles relevant to sentencing. It is accepted that given his age, his ill health, his appropriate vulnerabilities in gaol, his need for treatment both in gaol and the community, that a finding of special circumstances must be made.

Totality

44. I have to sentence for five offences involving five different complainants, each of whom was a young child. I have to take into account, where applicable the matters on each Form 1. A person cannot escape liability just because they commit multiple offences against multiple children. But a court has to impose or indicate an appropriate sentence for each offence, and then structure the sentence such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.

45. I do not have to grade the objective seriousness on some notional scale, but the sentences indicated must be proportionate to what occurred. It is a critical part of the sentencing process.

46. So far as the totality is concerned if I were simply to add one sentence on top of the other a disproportionate sentence could result. Not infrequently a straightforward arithmetical addition will come to an aggregate which exceeds what is called for. Sometimes adjustments need to be made: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

Instinctive synthesis

47. Synthesising or taking all those matters into account, Noronha was trusted with small children. He interfered with those children. I have not received Victim Impact Statements, nor are they necessary. Their absence does not mitigate. It is presumed that this activity will harm the children.

48. I have to then take the complexities of what he did, so far as each complainant is concerned, and evaluate his own background, which includes aspects that reduce his moral culpability. He must be monitored and supervised in the community and given any assistance that can be given to enable him to come to some understanding of what he did and why he did it, in the hope that it can reduce the risk of future offending.

49. Sentences must attempt, by their severity, to reflect the seriousness of what was done to each child and reflect the community’s disapproval of what occurred. Importantly sentences should attempt to vindicate the dignity of the complainants, as they were the people who were most hurt by his actions.

50. Complainants should never measure the harm that they suffered by the penalty imposed, because as these remarks have made clear, I have to take into account many, many factors. But it is a reality that no matter what case can be made for the offender, and ill though he is, vulnerable though he is in custody, he must remain in custody for a period so that he can be adequately punished for each crime for sentence against each of the complainants whose trust he abused: R v Smith (1987) 44 SASR 587.

Orders

51. In relation to each matter there will be convictions. I will indicate sentences which, where appropriate, take into account a Form 1. I have to indicate where there is a standard non-parole period what the parole period might be. The indicated sentences take into account the 25% reduction, and the other matters noted above have also been taken into account.

• In relation to Guinevere, Sequence 5, taking into account the two matters on the Form 1, there will be a sentence of 3 years, non-parole period of 1 year, 10 months.

• In relation to Audrey, Sequence 9, there will be a sentence indicated of 2 years.

• In relation to Emma, Sequence 13, taking into account the matter on the Form 1, there will be a sentence of 3 years, non-parole period 1 year, 10 months.

• In relation to Joselyn, Sequence 15, taking into account the matter on a Form 1, there will be a sentence of 3 years, non-parole period 1 year, 10 months.

• In relation to Tyla, Sequence 19, taking into account the two matters on the Form 1, there will be an indicated sentence of 2 years and 7 months, non-parole period 1 year and 7 months.

52. The aggregate sentence will date from 26 September 2022. That sentence will be 7 years and 6 months. There will be a non‑parole period of 4 years and 6 months which will date from 26 September 2022, making the offender eligible for consideration for release on 25 March 2027. The balance of the term, reflecting a finding of special circumstances, is 3 years. It will commence on 26 March 2027. The total sentence will expire on 25 March 2030.

53. To reiterate: Total sentence 7 and a half years, non-parole period 4 years, 6 months, parole period 3 years.

**********

Decision last updated: 18 July 2024