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District Court 30 April 2024

R v Noronha

[2024] NSWDC 296

Sexual offences

Citation: R v Noronha [2024] NSWDC 296
Court: District Court of New South Wales
Date: 30 April 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1956, was a trusted family friend who had met the complainants' family through church. He and his wife regularly babysat the family's children, and he was expected to treat those children as his own. Between approximately 2013 and 2022, he used those babysitting opportunities to sexually touch five female children from the same family (all referred to in the judgment by pseudonyms: Guinevere, Audrey, Emma, Joselyn, and Tyla).

In September 2022, the eldest daughter disclosed the abuse to her parents. The children's father confronted the offender and told him to hand himself in to police or the father would contact them himself. The offender then voluntarily attended Wollongong Police Station, disclosed that he had sexually touched a number of children, participated in a police interview, and made admissions. He was arrested as a result of those admissions.

The offender had been in custody since 26 September 2022. In the District Court, he pleaded guilty to one charge relating to each child, with additional matters taken into account on a Form 1 (a procedural mechanism under the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows further offences to be acknowledged at sentencing without separate convictions being recorded). He had no prior criminal record.

  • What aggregate sentence was appropriate for five charges of child sexual touching involving multiple victims over an extended period?
  • How should Form 1 matters be treated when assessing objective seriousness and calibrating the final sentence?
  • What weight should be given to mitigating factors, including the guilty plea, voluntary admissions made before the complainants went to police, absence of prior convictions, age, and health?
  • Whether special circumstances existed to justify a non-parole period that departed from the standard ratio between the non-parole period and the head sentence.

Decision

His Honour identified the charges and their respective maxima: the offence relating to Guinevere (indecent assault of a child under 16, under the former s 61M(2) of the Crimes Act 1900) carried a maximum of 10 years with a standard non-parole period of 8 years; the offence relating to Audrey (intentionally sexually touching a child aged 10 to 16, under s 66DB(a)) carried a maximum of 10 years; and the three offences relating to Emma, Joselyn, and Tyla (intentionally sexually touching a child under 10, under s 66DA(a)) each carried a maximum of 16 years with a standard non-parole period of 8 years. The court noted that maximum penalties and standard non-parole periods signal the Parliament's recognition of the serious harm sexual contact inflicts on children.

On the Form 1 matters, the court was careful not to double-count. The Form 1 offences were not assessed as part of objective seriousness on the charges for sentence, but they were relevant to demonstrating the duration and pattern of the offending and justified an uplift to reflect personal deterrence and retribution.

The court applied a 25% discount for the guilty plea and gave credit for the offender's voluntary attendance at the police station and his admissions before the complainants went to police, which the court described as unusual in its experience. His Honour also weighed the offender's age (67 at the time of sentencing), his chronic pain and disability, and the difficulties he faced in custody as a result of his health. The breach of trust was identified as a significant aggravating feature, as was the fact that multiple children were involved over a period of nearly a decade.

Special circumstances were found, extending the parole period beyond the standard one-third of the head sentence. The court reasoned that the offender would require an extended period of supervision on release given his age, health, and the nature of his offending.

Orders Made

  • Convictions recorded on all five charges (one per complainant).
  • Individual sentences imposed, each incorporating a 25% guilty plea discount and, where applicable, an uplift for Form 1 matters:
  • Guinevere (Sequence 5): 3 years imprisonment, non-parole period 1 year 10 months (two Form 1 matters taken into account).
  • Audrey (Sequence 9): 2 years imprisonment.
  • Emma (Sequence 13): 3 years imprisonment, non-parole period 1 year 10 months (one Form 1 matter taken into account).
  • Joselyn (Sequence 15): 3 years imprisonment, non-parole period 1 year 10 months (one Form 1 matter taken into account).
  • Tyla (Sequence 19): 2 years 7 months imprisonment, non-parole period 1 year 7 months (two Form 1 matters taken into account).
  • Aggregate sentence: 7 years and 6 months imprisonment, commencing 26 September 2022.
  • Aggregate non-parole period: 4 years and 6 months, expiring 25 March 2027.
  • Balance of term (parole period): 3 years, commencing 26 March 2027, expiring 25 March 2030.
  • Special circumstances found, producing a parole period of 3 years (above the standard one-third ratio).

Key Takeaways

  • Form 1 matters cannot be used to increase the objective seriousness of the offence for which the offender is being sentenced, but they are properly considered in calibrating the overall sentence to reflect the pattern, duration, and extent of the offending, as well as the need for personal deterrence and retribution.

  • A voluntary approach to police and admissions made before complainants report an offence to police can constitute a meaningful mitigating factor, though the weight attributed to that factor will depend on the circumstances, including any pre-existing pressure to confess.

  • Breach of trust by a person in a babysitting or carer role is a recognised aggravating feature under New South Wales sentencing law and was applied here to reflect the exploitation of a position of confidence and responsibility.

  • Where an offender's age, chronic health conditions, and vulnerability in custody are established, those matters bear on the exercise of the court's sentencing discretion, including the finding of special circumstances to extend the supervision period on release.

  • The District Court confirmed that sentences for child sexual offending must serve the purposes of punishment, personal and general deterrence, and the vindication of the dignity of complainants, and that no personal mitigating factor, however significant, removes the need for a custodial term where serious offending against multiple children is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66DA(a), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (including Form 1 provisions and s 37)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- 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
- 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