R v NOONAN [2001] NSWCCA 237

New South Wales Court of Criminal Appeal

CITATION : R v NOONAN [2001] NSWCCA 237 FILE NUMBER(S) : CCA 60594/00 HEARING DATE(S) : 25/06/2001 JUDGMENT DATE : 25 June 2001

PARTIES : REGINA v Michelle Lee NOONAN JUDGMENT OF : Barr J at 1; Howie J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3078 LOWER COURT JUDICIAL Sides QC DCJ OFFICER :

COUNSEL : Crown: GE Smith Applicant: In person SOLICITORS : Crown: SE O'Connor

DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60594/00

BARR J HOWIE J

Monday, 25 June 2001 REGINA v Michelle Lee NOONAN JUDGMENT

1 BARR J: Michelle Lee Noonan applies for leave to appeal against sentences imposed in the District Court by Sides QC DCJ. On one count of armed robbery his Honour sentenced the applicant to imprisonment for two years and six months and fixed a non-parole period of one year and three months. His Honour ordered the applicant's release to parole at the expiry of the non-parole period, namely 22 October 2001. His Honour imposed conditions of parole. 2 On each of two counts of attempting to dispose of property his Honour sentenced the applicant to imprisonment for one month concurrent with the non-parole period on the principal offence. In the circumstances no non-parole period for those sentences was set. 3 On 1 March 2000 a woman left a train at Minto Railway Station and began walking home. As she did so, a car driven by the applicant's companion and carrying the applicant pulled up in front of the woman. The applicant got out, went up to her and took hold of a handbag the woman was carrying. There was a struggle and then the applicant's co-offender, who was waiting in the car, called out to the woman to give up the struggle. The woman noticed that the applicant was carrying a pair of scissors. Afraid, she let go of her handbag. The applicant took it and also a blue bag which the woman was carrying. The applicant and her companion drove away. Fortunately the victim of the attack was able to describe the car the two had used and they were arrested later on the same day. The scissors were found in the car. One of the bags was ultimately found but the other was never found. 4 The applicant made no admissions to the police. She pleaded guilty on the day the matter was fixed for trial. 5 It is unnecessary to deal with the facts of the two counts of attempting to dispose of stolen property. They were minor offences which could have been dealt with summarily. The applicant pleaded guilty to them at the first indication that the Crown made that it was prepared to accept such pleas in discharge of an indictment containing other offences as well. The sentencing judge obviously took the view that they were not of great consequence in comparison to the robbery. 6 The applicant was born on 2 September 1966 and was almost thirty four-years of age when sentenced. She began to abuse drugs when she was about fifteen years old but managed to get off them by the age of twenty. She relapsed into drug use when she took up with her co-offender. The robbery and other offences were carried out in the usual way to raise money to buy drugs. 7 As his Honour observed, the applicant had no relevant criminal history. His Honour commented favourably upon the applicant's having previously broken free of drug use and having more recently tried during her period of bail to come to grips with her drug addiction. His Honour thought that those matters, combined with her past work record and her willingness to receive help and the preparedness of her family to support her, constituted a basis for optimism. His Honour concluded the prospects of rehabilitation were good. That was one reason why his Honour decided to fix a non-parole period less than three-quarters of the length of the sentence. 8 His Honour took the view that the scissors were not overtly used and that the applicant did not threaten to use them. Rather more important to his Honour's mind was the fact that the applicant was in company at the time of the robbery. His Honour considered a submission that a period of periodic detention would be sufficient to reflect the objective seriousness of the offences but thought that it would not. 9 The applicant has represented herself in this appeal but has filed careful written submissions. She says that she has accepted responsibility for her action and has put herself to work in rehabilitation programs whilst in custody. She points out that she had not previously offended in any relevant manner. She says that she was depressed and "self-medicating" with amphetamines and alcohol at the time of the offence. She says that she was going through a particularly hard period in her life and had sought medical help. She points to her previous good work record. 10 The applicant says that she has a five year old son who has been emotionally disturbed by the absence of her and his father, who is also in custody. The son is living with grandparents. The applicant is determined never to offend again. 11 For the most part the applicant has repeated submissions that were made before the sentencing judge. 12 One particular attack has been made on the reasons given by the sentencing judge. In a written document filed upon the hearing of the appeal, the applicant submitted that his Honour failed adequately to consider her mental state at the time of the commission of the offences in question. She puts to this Court that she was depressed. In fact there was no evidence before his Honour that the applicant was suffering from depression. Indeed, the evidence was somewhat to the contrary. A pre-sentence report was provided for the benefit of the sentencing judge. It included this paragraph: Miss Noonan indicated that she sought the help of a professional in 1999 as she was suffering from depression. She was prescribed anti depressant medication which she took for two months. She indicated that she discontinued taking the medication because she was ashamed and felt stigmatized. 13 In a further report to the Court a consulting clinical psychologist, Ms Elizabeth Kusch, said this - Michelle's involvement with the current offence appears to be the result of her addiction to amphetamines and her involvement with a rather dominant and abusive partner of nine years. Given her dependent personality, it is likely she would have participated in the offence in order to avoid confrontation and conflict with (her partner). Given her relatively minor criminal record, it seems her dependent relationship with a man whom she describes as somewhat antisocial would have certainly influenced her behaviour. Her level of drugs use is also consistent with her very dependent personality style. 14 It thus appears that the basis upon which the plea of guilty was argued before his Honour was that the applicant was to some degree under the influence of her partner and to a significant degree dependent upon her need for the illegal drugs to which she was addicted. Although a case might have been put forward upon the basis that she was clinically depressed, no such case was. 15 It is important for the applicant to realise that this is not a sentencing court but a court of error. The applicant must show not that his Honour might possibly have imposed a different sentence but that the sentence imposed was wrong, that is to say, outside the proper range of his Honour's sentencing discretion. 16 The material which was known about at the time of sentence and to which I have referred was all referred to by his Honour in his careful remarks on sentence. The things that have happened to the applicant since then, principally her positive attitude toward rehabilitation whilst in custody, are not matters which this Court can take into account unless it was demonstrated that his Honour fell into error. It is appropriate to record, however, that the good progress that the applicant is making shows that his Honour's assessment of her prospects of rehabilitation was correct. 17 In my opinion the Court must refuse the appeal because error has not been demonstrated. I would grant leave to appeal but would dismiss the appeal. 18 HOWIE J: I agree. 19 BARR J: The orders of the Court are therefore as I have proposed. **********