Noonan v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

2. [2]

   BELLEW J: Taylar Gregory Noonan (the applicant) pleaded guilty before the Local Court to an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s (33)(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. A standard non-parole period of 7 years’ imprisonment is prescribed.

3. [3]

   The applicant adhered to that plea when he appeared before the District Court of NSW for sentence and asked the sentencing judge to take into account the following additional matters on a Form 1:

4. [4]

   The following further matters were included in a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW):

5. [5]

   The applicant was sentenced to 10 years and 6 months’ imprisonment with a non-parole period of 7 years. He now seeks leave to appeal against that sentence on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

1. [6]

   The sentencing judge found the facts of the offending to be as follows. [1]

Entering inclosed lands

1. [7]

   On the afternoon of 27 July 2017 the occupant of premises at Kew heard a loud noise. He walked out to the back of the premises and saw a vehicle parked on the grass. The applicant was walking around the property checking tractors and vehicles. When questioned about what he was doing, the applicant said:

2. [8]

   The occupant told the applicant that he was on the wrong property, to which the applicant replied:

3. [9]

   The applicant had never lived in the area, had no family living in the area, and had no claim of right to the property. Notwithstanding this, he continued to talk about being the owner of the property and told the occupant to leave.

4. [10]

   The applicant then walked into a caravan which was parked on the property and closed the door. He refused requests to come out. The occupier called the police who attended and spoke to the applicant who again refused to leave. Additional police arrived and observed that the applicant had moved a large amount of property into the caravan, including clothing and other personal items.

Possessing a prohibited drug

1. [11]

   Police located 3g of cannabis in the caravan with the applicant's other property. The applicant made admissions to police as to his ownership of it.

Damaging property

1. [12]

   On 31 July 2017 the applicant broke into the Hastings Council Dog Pound to retrieve his dog. In the course of doing so, he put a large hole in a mesh security fence at the entrance to the pound, and smashed both the front and rear glass doors. A mesh steel door leading to the dog kennels was also cut open. When police arrived, the door to kennel 4 was open and the applicant’s dog was missing. A DNA sample taken from a blood smear left at the premises matched that of the applicant.

Taking and driving conveyance without consent

1. [13]

   Between 10:30am and 12 noon on 2 August 2017 the applicant stole a vehicle from premises in Lithgow.

Obtaining property by deception

1. [14]

   At about 7:00pm on 2 August 2017 the applicant went to a service station at Bathurst and filled the stolen vehicle with fuel. He then drove away without paying for the fuel.

Larceny

1. [15]

   At 11:07am on 3 August 2017 the applicant went to a service station at Singleton and filled the stolen vehicle with fuel. Whilst at the service station, he went into the shop and selected a number of items without making any attempt to pay for them. The console operator questioned the applicant about payment and he said that he would be back shortly.

2. [16]

   He then drove away without paying for the fuel or the items taken from the shop.

Intimidating police

1. [17]

   On 4 August 2017 the applicant, having been arrested for the principal offence referred to below, was taken into custody and placed in a dock at the Raymond Terrace Police Station awaiting an AVL for the purposes of a bail hearing. Apropos of nothing, he became agitated and aggressive. He stood up in the dock and threatened the police stating (inter alia):

2. [18]

   When questioned by one of the officers, the applicant said:

3. [19]

   The applicant continued to threaten the police. When he was approached by an officer, he stood up and pointed, saying:

4. [20]

   The applicant then picked up a wrapper next to him on the dock which had contained his lunch and said:

5. [21]

   He then threw away the wrapper and grabbed his groin with his hand, saying:

6. [22]

   Pointing separately to two officers, the applicant then threatened to kill each of them before threatening to kill a third officer who was working nearby.

The principal offence

1. [23]

   At about 3:40am on 2 August 2017, the applicant was involved in a motor vehicle collision on the Great Western Highway near Lithgow. When police arrived at the scene he was attempting to remove items from the roadway. Police asked him to stop doing so because of the risk posed by passing traffic. Although the applicant complied with that request, police described him as “pacing around". One of the officers asked the applicant why he was acting in that way, and he explained that it was because he had been in an accident. Whilst at the scene police were notified that the applicant had mental health issues.

2. [24]

   The applicant recommenced retrieving items from the roadway and was detained by police in order to prevent him from doing so. He was released after the fire brigade completed the task of clearing the roadway. He then travelled in the tow truck which transported his vehicle to a smash repairer in Lithgow. He later contacted the owner of that repair business telling her that if she located his wallet in the vehicle she could “obtain payment by tapping his card".

3. [25]

   For some time earlier in his life, the applicant had been under the care of his aunt and uncle, Allison and Darren Ribaux. On the afternoon of 2 August 2017 Mrs Ribaux left her premises in Eglinton. Her husband remained there alone. At about 5:15pm the applicant went to the premises and used a hatchet to force entry into the premises by smashing the front lounge room windows, and striking the front entrance door, door handle and deadlock.

4. [26]

   Once inside the premises the applicant demanded that Mr Ribaux lie on the floor. When Mr Ribaux refused to do so, an altercation occurred in the course of which the applicant struck Mr Ribaux a number of times in the head, abdomen and leg areas with the hatchet. Mr Ribaux sustained serious injuries as a consequence of the attack, including multiple depressed fractures of his skull, multiple wounds to his abdomen and a fracture of his left knee.

5. [27]

   Mrs Ribaux returned home at about 5:40pm to find her husband lying on the living room floor with a pool of blood under him, unable to speak. Mr Ribaux was treated and conveyed to hospital and placed in an induced coma, before being airlifted to Sydney for surgery to treat his head injuries. A report of the Mid Western Brain Injury Rehabilitation Program set out the following in relation to Mr Ribaux’s injuries and subsequent treatment: [2]

The evidence on sentence

1. [28]

   A report of Dr Adam Martin, Forensic Psychiatrist, was tendered before the sentencing judge. The applicant told Dr Martin that he had been molested by Mr Ribaux when he was a child and said that in the period leading up to the offending he had been using cannabis and had not slept for three days. [3]

2. [29]

   The applicant's psychiatric history recorded by Dr Martin included previous admissions to hospital as an involuntary psychiatric patient, an admission to the Mental Health Unit at Townsville Hospital at the age of 19, and a series of admissions to the Mental Health Unit at Port Macquarie Hospital shortly prior to the offending. [4]

3. [30]

   Dr Martin expressed the view that the available information demonstrated that the applicant had been treated as a psychiatric patient because of his psychotic illness. [5] As to his diagnosis, and the connection between the offending and the applicant’s mental state, Dr Martin said the following: [6]

4. [31]

   The applicant's sister, Tara Noonan, gave evidence in the applicant's case on sentence by reference to a chronology she had prepared and which set out the applicant's personal background, paying particular attention to his history of mental illness. [7]

The reasons of the sentence judge

1. [32]

   Having reviewed the applicant's psychiatric history by reference to the report of Dr Martin, [8] and having set out Dr Martin’s opinion, the sentencing judge said: [9]

Submissions of the applicant

1. [33]

   Counsel for the applicant submitted that despite referring to the applicant’s mental illness, the sentencing judge had failed to properly address the central issue, namely the causative link between such illness and the offending conduct. It was submitted, in particular, that the sentencing judge had failed to address the obvious interplay between the applicant's mental illness and the offending conduct, to the point where his Honour’s treatment of the issue was cursory. In this regard, counsel for the applicant relied upon the decision of this Court in Devaney v R. [10]

2. [34]

   In oral submissions, counsel for the applicant accepted that “some weight” had been given to the issue of the applicant’s mental illness. However, he submitted that it was “insufficient weight in the circumstances of the case”. [11]

Submissions of the Crown

1. [35]

   The Crown emphasised the sentencing judge’s express acceptance of the proposition that the applicant's mental health reduced his moral culpability and rendered him an inappropriate vehicle for general and specific deterrence. The Crown also highlighted the sentencing judge’s statement that he had given “considerable weight" to the applicant’s mental health issues in the sentencing task. The Crown submitted that it was clear from these references that the sentencing judge had paid proper regard to this issue on sentence, and had approached it in a conventional way which did not bespeak error.

2. [36]

   The Crown further submitted that the sentencing judge had not treated the applicant's mental illness in a cursory way, and that a reading of his Honour’s reasons a whole reflected the fact that the issue of the applicant's mental illness had been carefully considered. It was submitted that the sentencing judge had properly balanced the applicant’s mental illness against the seriousness of the offending, the need to protect the community, and the need to recognise the harm done to the victim.

Consideration

1. [37]

   The essence of the applicant’s complaint under this ground, as developed in oral submissions before the Court, is that the sentencing judge failed to give proper weight to the applicant’s mental illness. Such a submission necessarily assumes that some weight was given to that issue by the sentencing judge.

2. [38]

   This Court has expressed the view, on many occasions, that matters of weight are for a sentencing judge. Accordingly, the circumstances in which such matters will justify intervention by this Court are narrowly confined. Unless it can be demonstrated that a sentencing judge placed so little weight on a particular issue as to give rise to error, there is no basis for appellate intervention. [12] For the reasons that follow, I am not satisfied that such an error has been made out in the present case.

3. [39]

   The sentencing judge undertook an extensive review of the applicant’s psychiatric history. He obviously paid close attention to, and accepted, the opinion of Dr Martin. On the basis of that opinion, he found that the applicant suffered from a severe mental illness, the extent of which was reflected in the entirety of his offending.

4. [40]

   Read as a whole, the reasons of the sentencing judge do not support a conclusion that his Honour addressed the issue of the applicant’s mental illness in a cursory way. It is evident that having extensively reviewed the opinion of Dr Martin, and having accepted that opinion, his Honour balanced the factors against what he considered to be the objective seriousness of the offending and the related necessity to protect the community. There is no error evident in that approach.

5. [41]

   Further, I am not persuaded that the judgment of this Court in Devaney provides any support for the applicant’s position on this ground. The passages to which the Court was referred contained observations made in the context of that particular case. They do not support a conclusion that the sentencing judge in this case erred in the matter for which counsel for the applicant contended.

6. [42]

   It follows that this ground is not made out.

The evidence on sentence

1. [43]

   As I have previously noted, the applicant’s sister gave evidence relating to the applicant’s background and childhood which the sentencing judge summarised as follows: [13]

2. [44]

   The sentencing judge made reference to the report of Dr Martin and expressed the view that the history he had recorded did not reflect the level of deprivation referred to by the applicant's sister in her evidence, and in the chronology that she had prepared. [14] His Honour said: [15]

3. [45]

   His Honour concluded: [16]

Submissions of the applicant

1. [46]

   Counsel for the applicant submitted that it was not necessary, in order to attract the application of the principles set out in Bugmy v The Queen, [17] to establish a causal connection between an offender’s disadvantaged upbringing and his or her offending. It was submitted that even if it was accepted that no such connection was established in the present case, the applicant’s upbringing remained a highly relevant factor in the sentencing exercise. Whilst accepting that his Honour had considered this factor, counsel for the applicant submitted that it was not clear how it had been taken into account on sentence, resulting in a situation where an important issue had been addressed in a general and unspecific way. As was the case with ground 1, the effect of such a submission was that the sentencing judge had not given sufficient weight to the applicant’s disadvantaged background. [18]

Submissions of the Crown

1. [47]

   The Crown submitted that although the applicant had been exposed to violence as a child, his circumstances fell substantially short of the profound childhood deprivation considered by the High Court in Bugmy. The Crown also emphasised that the sentencing judge had found that there was no evidence of any connection between the applicant's disadvantaged upbringing and his offending and that in these circumstances, his Honour was not required to find that the applicant's moral culpability was reduced by reason of those factors. The Crown further submitted that it was clear from the reasons of the sentencing judge that he had taken into account the applicant’s disadvantaged childhood as part of the applicant's subjective case.

Consideration

1. [48]

   In Bugmy, the High Court said the following: [19]

2. [49]

   The question whether, in order to attract the principles discussed in Bugmy, an offender must establish a causal connection between his or her background and the offending is one in respect of which differing views have been expressed. [20] However, it is not necessary to resolve that issue in order to determine this ground.

3. [50]

   Even if the level of deprivation suffered by the applicant was less than that considered in Bugmy, that did not render the applicant’s circumstances irrelevant on sentence. However, it is plain from what the sentencing judge said that he took those circumstances into account as a mitigating factor in his assessment of the applicant’s subjective case.

4. [51]

   The essence of the submission advanced in support of this ground amounted to the proposition that his Honour had failed to give sufficient weight to the applicant's background and deprived upbringing. That submission gives rise to the same issue as that discussed in the context of ground 1.

5. [52]

   This ground is not made out.

Submissions of the applicant

1. [53]

   Counsel for the applicant properly conceded that the injuries inflicted on the victim were serious and that the entirety of the circumstances of the applicant's offending justified the imposition of a significant term of imprisonment. However, notwithstanding those matters, counsel submitted that the sentence imposed upon the applicant was nevertheless manifestly excessive. In support of that submission, counsel pointed to a number of factors.

2. [54]

   Firstly, counsel emphasised that the applicant had pleaded guilty, essentially at the first available opportunity, and that this was reflected in a discount of 25%. Counsel pointed out that notwithstanding that early plea, the standard non-parole period applicable to the principal offence, namely one of 7 years’ imprisonment, was nevertheless imposed.

3. [55]

   Secondly, counsel pointed to the fact that the applicant had no criminal history.

4. [56]

   Thirdly, counsel emphasised that the principal offence was committed at a time when the applicant was obviously in a psychotic state.

5. [57]

   Fourthly, it was submitted that the applicant’s prospects of rehabilitation were more favourable than the sentencing judge found. Whilst counsel acknowledged the opinion of Dr Martin that the applicant had difficulty accepting his diagnosis, he also emphasised Dr Martin's opinion that the applicant was stable, was not expressing current psychotic phenomena and was employed in custody.

6. [58]

   It was submitted that all of these factors, coupled with the obvious disadvantage that the applicant had suffered in his early life, lead to the conclusion that the sentence imposed was manifestly excessive.

Submissions of the Crown

1. [59]

   The Crown submitted that the applicant’s offending amounted to a sustained, ferocious and unprovoked attack against a defenceless victim involving the use of a weapon. The Crown also emphasised that the offending had occurred in the victim's home, that his injuries were severe, and that he continued to exhibit significant physical and cognitive impairments as a result of the offending. In advancing these submissions, the Crown emphasised that although the applicant's mental illness was a causative factor in the offending, it did not automatically follow that a lesser sentence should be imposed by virtue of that fact alone.

2. [60]

   The Crown also emphasised the need to balance the applicant's subjective case against the nature and seriousness of his offending, and the danger which he posed. It was submitted that the sentencing judge had struck an appropriate balance between those factors, and had been properly mindful of the fact that the need to protect the community was necessarily an important consideration in the sentencing process. The Crown submitted there was no error in the conclusions reached by the sentencing judge as to the applicant’s prospects of rehabilitation.

3. [61]

   In essence, it was the Crown's submission that although the applicant's mental illness reduced his moral culpability and the need for general deterrence, the gravity of his offending, the extensive harm that his offending caused to the victim, and his general lack of insight, were all factors which supported a conclusion that the sentence imposed was not manifestly excessive.

CONSIDERATION

1. [62]

   The principles which apply when it is contended that a sentence is manifestly excessive were summarised by R A Hulme in Vaiusu v R. [21] They include the following:

2. [63]

   The objective seriousness of the applicant's offending is self-evident. The Crown's description of it was entirely appropriate. It was aggravated by the fact that it was committed in the victim’s home. The ferocity of the attack is particularly evident from the photographs reproduced in the statement of facts which were tendered to the sentencing judge and which depict the substantial injuries inflicted on the victim. [23] It is also necessary to bear in mind that there was a series of additional offences which the sentencing judge was asked to take into account on a Form 1.

3. [64]

   I am mindful of the long line of authority which establishes that subjective considerations, no matter how strong or persuasive, must not result in the imposition of a sentence which is disproportionate to the objective seriousness of the offending. [24] I am also mindful of the fact that the existence of a causal relationship between mental illness and offending does not automatically result in a lesser sentence being imposed. [25] However, giving full weight to all of those considerations, I have come to the view that the sentence imposed was manifestly excessive.

4. [65]

   The nature and severity of the applicant’s mental illness will be self-evident. There was a causal connection between that illness and the offending. The inescapable conclusion is that the offending occurred whilst the applicant was floridly psychotic, against a long standing background of mental illness. The unequivocal opinion of Dr Martin is that the applicant’s judgment was significantly distorted at the relevant time. Whilst the objective seriousness of the offending cannot be gainsaid, the evidence overwhelmingly supported a conclusion that the applicant’s moral culpability was significantly reduced on account of his mental illness, as was the need to denounce the crimes that he committed. [26] The applicant’s mental illness also rendered him an inappropriate vehicle for general deterrence and reduced the significance of specific deterrence. [27] It was also significant that the applicant was entitled to rely upon the absence of any criminal history as a mitigating factor.

5. [66]

   The evidence given by the applicant’s sister before the sentencing judge painted a picture of a person whose formative years were characterised by a number of adverse factors, including:

6. [67]

   Even though there was no evidence which established a connection between these factors and the offending, they formed an important part of the applicant’s subjective case. The absence of any reference to these factors in the report of Dr Martin was beside the point. As his Honour himself acknowledged, their omission may have been explicable simply on the basis that the applicant was a poor historian. [28] The more important consideration was that there was no dispute that such events had occurred. Even accepting that they were not causally linked to the offending, their nature and extent formed an important aspect of the applicant’s subjective case.

7. [68]

   Against a background of all of these subjective considerations the sentencing judge adopted a starting point of 14 years’ imprisonment [29] which he then discounted by 25% to reflect the applicant’s plea of guilty. That starting point was more than half of the prescribed maximum penalty. In my view, notwithstanding the objective seriousness of the offence, the entirety of the circumstances warranted the imposition of a lesser sentence.

8. [69]

   All of these factors lead me to the conclusion that the sentence imposed was manifestly excessive. Accordingly, ground 3 is made out. As a consequence of those findings, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion.

Re-sentence

1. [70]

   Two affidavits were read on the question of re-sentence. The Crown read the affidavit of Miriam Rottenberg of 20 November 2020. The applicant read the affidavit of Catherine Hunter (the applicant’s solicitor) of 23 November 2020 which was, in effect, a response to the affidavit of Ms Rottenberg.

2. [71]

   Ms Rottenberg's affidavit documents the fact that the applicant has been punished in relation to three incidents in custody. The first was on 6 September 2019 when he had been called for assessment by a mental health nurse and became agitated, in the course of which he abused both the mental health nurse and the medical practitioner who was examining him. Ms Hunter's affidavit stated that the applicant took no issue with those facts but had said that he had been feeling physically unwell and that this had caused him to act as he did. [30]

3. [72]

   The second incident took place on 17 September 2019 when the applicant became aggressive towards a correctional manager. This occurred immediately following the applicant being notified of the adjudication which had been reached in relation to the earlier incident. The applicant told Ms Hunter as set out in her affidavit that he had challenged the officer because he felt that his earlier behaviour was not intimidatory. [31]

4. [73]

   The third incident occurred on 22 May 2020 when, in the course of searching the applicant's property, a “gaol made weapon" consisting of a sharpened piece of metal with a makeshift handle approximately 15cms in length was located. The applicant disputed knowledge of that implement and said that it did not belong to him. [32]

5. [74]

   I have already set out at length the nature and circumstances of the offending and the salient features of the applicant's subjective case, the most significant of which are his mental illness, his deprived upbringing and the absence of any criminal history.

6. [75]

   Assessing the applicant's prospects of rehabilitation is obviously difficult. The observations by Dr Martin that the applicant has limited insight, and does not accept the diagnosis of schizophrenia, are concerning, as are the more recent incidents in custody. Based on the opinion of Dr Martin, the key to the applicant's rehabilitation centres upon maintaining a relatively stable environment, abstaining from the consumption of illicit substances, and complying strictly with his regime of antipsychotic medication. [33] It is also essential that once released, the applicant undergo regular and formalised mental health follow-up including the regular monitoring of his mental state and associated rehabilitation. [34]

7. [76]

   The applicant’s lack of any prior criminal history tends to indicate that he at least has the capacity to be rehabilitated. If he adheres to the regime outlined by Dr Martin, his prospects of rehabilitation would appear to be favourable, and his risk of reoffending moderate. For all of these reasons, a finding of special circumstances is clearly appropriate on the basis that the applicant will benefit from a longer period on parole to assist him in reintegrating into the community.

ORDERS:

1. [77]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed in the District Court is quashed.

   4. (4)

      In lieu thereof the applicant is sentenced to imprisonment for 9 years commencing on 3 August 2017 and expiring on 2 August 2026.

   5. (5)

      I specify a non-parole period of 6 years’ imprisonment commencing on 3 August 2017 and expiring on 2 August 2023.

2. [78]

   WRIGHT J: I agree with Bellew J.