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Court of Criminal Appeal 18 December 2020

Noonan v R

[2020] NSWCCA 346

Assault & violence
CRIMINAL LAW OFFENCES SENTENCE APPEAL STRONG SUBJECTIVE CASE APPLICANT RE

Citation: Noonan v R [2020] NSWCCA 346
Court: NSW Court of Criminal Appeal
Date: 18 December 2020
Judge(s): Hoeben CJ at CL, Bellew J, Wright J

Background

The applicant pleaded guilty in the District Court to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The offending arose from a violent attack on his uncle using a hatchet, causing severe and lasting injuries including multiple depressed skull fractures, abdominal wounds, and a fractured knee. The victim was placed in an induced coma and airlifted to Sydney for surgery, sustaining what was classified as a severe traumatic brain injury.

In addition to the principal offence, the applicant asked the sentencing court to take into account several further matters on a Form 1, including vehicle theft, obtaining property by deception, larceny, and intimidating police. Further offences were dealt with by way of a s 166 certificate. The District Court sentenced the applicant to 10 years and 6 months' imprisonment with a non-parole period of 7 years.

The applicant sought leave to appeal on the grounds that the sentencing judge had failed to give sufficient weight to his severe psychotic mental illness, his deprived childhood, and his exposure to violence and alcohol abuse. He also contended the sentence was manifestly excessive.

  • Whether the sentencing judge gave sufficient weight to the applicant's severe psychotic mental illness, which was causally related to the offending
  • Whether the sentencing judge gave sufficient weight to the applicant's childhood deprivation and exposure to alcohol abuse and domestic violence
  • Whether the sentence of 10 years and 6 months with a 7-year non-parole period was manifestly excessive
  • Whether special circumstances existed to justify an adjustment of the statutory ratio between the non-parole period and the balance of the sentence

Decision

The Court of Criminal Appeal found that the sentencing judge had not given adequate weight to the applicant's severe psychotic mental illness. Psychiatric evidence established that the illness was causally related to the offending, and this was a significant mitigating factor that had not been properly reflected in the sentence imposed.

The Court also found that the applicant's background of childhood deprivation and exposure to violence and alcohol abuse, as recognised in Bugmy v The Queen (2013) 249 CLR 571, further reduced his moral culpability. These subjective factors, taken together, were weighty and had not been sufficiently balanced against the objective seriousness of the offending.

Bellew J, with whom Hoeben CJ at CL and Wright J agreed, concluded that the sentence was manifestly excessive. While acknowledging the objectively serious nature of the offending and the need to protect the community, the Court held that the combination of strong subjective factors warranted a reduced sentence. The applicant's lack of prior criminal history and his prospects for rehabilitation, contingent on adherence to a structured mental health treatment regime, also supported this conclusion.

Special circumstances were found to exist, justifying a longer parole period than the statutory ratio would otherwise produce. The Court considered that an extended period on parole would assist the applicant's reintegration into the community and support ongoing mental health monitoring and rehabilitation.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to 9 years' imprisonment commencing 3 August 2017 and expiring 2 August 2026
  • Non-parole period of 6 years' imprisonment commencing 3 August 2017 and expiring 2 August 2023

Key Takeaways

  • A causally established link between a severe psychotic mental illness and the commission of an offence constitutes a significant mitigating factor that must be meaningfully reflected in the sentence imposed.
  • Under the principles confirmed in Bugmy v The Queen, evidence of childhood deprivation and exposure to violence and alcohol abuse may reduce an offender's moral culpability, and sentencing courts must give this genuine weight even where the offending is objectively serious.
  • Objective seriousness and community protection remain relevant considerations, but they do not override the obligation to properly account for strong subjective factors, including mental illness and personal history.
  • Special circumstances justifying a departure from the standard statutory ratio may be established where an offender with a severe mental illness requires an extended supervision and support period upon release to assist with reintegration and ongoing treatment.
  • In re-sentencing the applicant, the Court of Criminal Appeal reduced the total term from 10 years and 6 months to 9 years, and the non-parole period from 7 years to 6 years, reflecting the weight of the subjective case while maintaining a sentence proportionate to the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Devaney v R [2012] NSWCCA 285
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El-Chaar v R [2007] NSWCCA 16
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Perkins v R [2018] NSWCCA 62
- R v Dodd (1991) 57 A Crim R 349
- R v Engert (1985) 84 A Crim R 67
- R v Rushby [1977] 1 NSWLR 594
- Ryan v R [2009] NSWCCA 183
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
- Vaiusu v R [2017] NSWCCA 71