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13
Court of Criminal Appeal 12 March 2021

Noonan v R

[2021] NSWCCA 35

Sexual offences
THREE VICTIMS MANIFEST EXCESS OBJECTIVE SERIOUSNESS LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Noonan v R [2021] NSWCCA 35
Court: Court of Criminal Appeal, NSW
Date: 12 March 2021
Judges: Bathurst CJ; Beech-Jones J; Wilson J

Background

The applicant, a man in his early fifties, pleaded guilty in the Local Court to three counts of indecent assault of a person under 16 years, contrary to s 61M(2) of the Crimes Act 1900. Each offence carries a maximum penalty of 10 years and a standard non-parole period of 8 years. The offences were committed in 2017 and 2018 against three young girls, referred to as T, S, and N, in their respective homes in South Western Sydney.

The applicant had moved into the homes of each group of victims through a mutual connection and used physical play, including tickling, to carry out the offending. In each case, the agreed facts recorded that the charged incident was not isolated and formed part of a pattern of similar conduct. The victims were between 6 and 8 years old at the time of the offences.

On 12 December 2019, a District Court judge sentenced the applicant to an aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 4 years. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge also specified indicative sentences of 2 years and 3 months (with a non-parole period of 1 year and 8 months) for each individual offence had an aggregate not been imposed.

  • Whether the degree of accumulation reflected in the indicative sentences disclosed a breach of the principle of totality.
  • Whether the aggregate sentence of 5 years and 6 months was manifestly excessive having regard to the objective seriousness of the offending and all relevant sentencing factors.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach or outcome.

On the totality argument, the Court considered whether the relationship between the indicative sentences and the aggregate sentence revealed any error. The applicant argued that the degree of notional accumulation built into the aggregate sentence was disproportionate and breached the totality principle. The Court rejected this contention, finding that the indicative sentences were themselves properly assessed and that the aggregate sentence appropriately reflected the overall criminality involved across three separate offences against three separate young victims.

On manifest excess, the Court noted that each offence involved a distinct and very young victim who was assaulted in her own home, and that the pattern of conduct in each case precluded the applicant from characterising the offending as isolated or out of character. The sentencing judge had assessed the objective seriousness of each offence as falling approximately between the bottom and middle of the range, a finding the Court of Criminal Appeal did not disturb. Beech-Jones J observed that even if an offence under s 61M falls below the most serious category, it is nevertheless a serious offence, and that the long-term effects of this type of offending on victims are only beginning to be properly understood.

The Court also addressed a non-publication order that had been made at first instance suppressing the applicant's identity. The Court declined to continue that order, finding that the judgment contained no details capable of identifying the victims and that the existing statutory protections under s 578A of the Crimes Act were sufficient.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.
  • Any previous order under the Court Suppression and Non-publication Orders Act 2010 suppressing or limiting publication of the appellant's name was set aside.

Key Takeaways

  • The presence of indicative sentences under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 does not, of itself, demonstrate error in an aggregate sentence. The proper inquiry is whether the aggregate sentence reflects the totality of the criminality involved across all offences.
  • Where agreed facts record that charged incidents were part of a broader pattern of similar conduct, a sentencing court may treat that pattern as precluding findings that the offending was isolated or out of character, even though the uncharged conduct is not separately aggravating.
  • Offences under s 61M(2) of the Crimes Act 1900 are serious offences, and the Court of Criminal Appeal emphasised the only recently emerging understanding of the long-term harm caused by this category of offending, including what was formerly characterised as low-level child sexual abuse.
  • Suppressing an applicant's identity under the Court Suppression and Non-publication Orders Act 2010 is not automatically justified in sexual offence proceedings. The Court found that statutory victim protections under s 578A of the Crimes Act may be sufficient where the judgment itself contains no identifying detail about the complainants.
  • In dismissing the appeal, the Court confirmed that an aggregate sentence is not manifestly excessive merely because a degree of accumulation of the indicative sentences can be inferred, provided the overall sentence reflects the full criminality of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2), s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(d)

Cases:
- Aryal v R [2021] NSWCCA 2
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Ibbottson v R [2020] NSWCCA 92
- JM v R [2014] NSWCCA 297
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2020] NSWCCA 244
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
- R v Stoupe [2015] NSWCCA 175
- Vaughan v R [2020] NSWCCA 3