R v Noud

District Court of NSW|2022-09-02|Before: Mr P

sentence

The Offender Michael Noud stood trial before a jury from 21/3/22 on an indictment containing 7 counts. However, the Offender pleaded guilty to counts 6 and 7 on that indictment, and the trial was concerned only with counts 1 to 5. On 28/3/22 the jury found him guilty of count 4, but not guilty of counts 1-3, and count 5.
He therefore is to be sentenced in relation to counts 4, 6 and 7 on the indictment.
Count 4 is an offence of being in possession of a shortened 12-gauge shotgun. The maximum penalty for that count is 14 years.
Count 6 is an offence of possessing a prohibited weapon, being an extendable baton. The maximum penalty for that count is 14 years, with a standard non parole period of 5 years.
Count 7 is an offence of possessing a prohibited weapon, namely a set of wooden Nunchakus. The maximum penalty for that offence is 14 years with a standard non parole period of 5 years.
The maximum penalties, and where applicable, standard non-parole periods are important guideposts in the sentencing exercise, to which I have had regard.
As already noted, the Offender pleaded guilty to counts 6 and 7, and the Crown accepted in oral submissions that these pleas had been indicated at an early stage, and that he is entitled to a discount of 25% on those matters.
There is no discount however for the count 4 offence.
In addition, the Crown seeks that I find the Accused guilty in relation to 3 additional offences, which are the subject of a certificate under s.166 of the Criminal Procedure Act 1986. Those alleged offences are as follows:-
Sequence 1 - Being a charge of intentionally damage property (a Suzuki Cross motor vehicle). The maximum penalty for that offence is 5 years.
Sequence 4 - Possess unregistered firearm (a 12 gauge shotgun). The maximum penalty for that offence is 14 years.
Sequence 5 - Assault of Rowena Reid, which has a maximum penalty of 2yrs.

Facts of the Count 4 offence

The facts of the count 4 offence are to be determined by me, but my findings must be consistent with the jury's verdicts. Any matters in aggravation must be proved beyond reasonable doubt, but matters in mitigation need only be proved on the balance of probabilities.
I find the following facts.
The weapon that is the subject of count 4 (and also the subject of sequence 4 on the s.166) was a shortened double barrel shotgun. It had the words "Black Heart" and a heart shaped image carved into the wooden stock. The weapon was found by police, wrapped in a "Bandidos" T shirt, under a jumper in the detached garage of the premises where the Offender and the Complainant lived. The Offender's case at trial was that he knew nothing about this or any firearms at the premises, and that the Complainant must have "planted" any such items there. Given the jury's guilty verdict on count 4 it clearly rejected the Offender's evidence about having no knowledge of the shortened shotgun.
Having considered the jury's verdicts, the evidence of the Complainant, and all of the evidence in the trial, I am satisfied beyond reasonable doubt of the following matters. In making these findings, I record that I found the Complainant's evidence about the count 4 firearm to be credible and reliable. It is evidence which I accept beyond reasonable doubt. In making that assessment, I have not overlooked the fact that the jury apparently had a reasonable doubt about the Complainant's evidence in regard to counts 1, 2, 3 and 5.
However, and as submitted by the Crown, it is possible to reconcile those not guilty verdicts, without concluding that the jury found the Complainant to be generally lacking in honesty or reliability.
Firstly, in relation to the count 1 intimidation charge, there is the fact that by reason of the way in which the Crown presented its case, it was necessary for the jury to be satisfied of all four particulars that were set out under Element 1 in MFI 6. This was always going to a challenge for the Crown, especially given that one of those particulars was that the Offender attempted to remove the wheels from the Complainant's motorcycle. In this regard, the Complainant said in cross-examination at T92.30 "I couldn't see it. It just looked like he was there fiddling at the back tyre, trying to take the wheels off." She also said at T92.37 "I could only see him down that side of my right-hand side of the car…I couldn't see exactly what he was using or what tools he had". Against this somewhat uncertain evidence, there was the Accused's evidence, who at T191 said he had only moved the motorcycle out of the garage, because in light of the Complainant's wish to end the relationship, he did not know who might be coming around to the house, and he "didn't want them going into my garage". In my view, the evidence I have quoted provides a rational basis on which the jury might have held a reasonable doubt about whether indeed the Offender had attempted to remove the wheels from the motorcycle, and does not necessarily indicate that the jury found the Complainant generally to be lacking in honesty or reliability.
Similarly, in my view there exists a rational explanation for the jury's not guilty verdicts on counts 2, 3 and 5, which related to three firearms found under the bed in the main bedroom. Firstly, there was evidence from the Complainant that the guns would sometimes be in the lounge room, and she would complain and push them under the lounge, and that the Offender would move them and hide them. Secondly, a mixed DNA profile was obtained from one of these firearms, from which neither the Offender nor the Complainant could be excluded. Thirdly, there was undisputed evidence that the Offender had significant problems with his knees, and difficulty in kneeling down - which would have been required in order to place the firearms under the bed. There is also the fact that the bed was very heavy and close to the ground and that 4 police officers were required to move it in order to seize the guns, which appeared to have been in that location for some time. In addition, the jury was instructed, via the Elements document, that a person would not be in possession of an object if they were unaware of its presence, for example if it was in some other location without their knowledge. In all of these circumstances, there is the possibility, as the Crown submitted, that the jury may have held a reasonable doubt about who it was that last touched the guns, and who it was that placed them under the bed. It is feasible, in my view, that the jury may have been unable to exclude the reasonable possibility that the location of the weapons was at the relevant time, unknown to the Offender.
Returning then to the evidence of the Complainant, which I accept beyond reasonable doubt, relating to the "Black heart" shortened shotgun. As the Complainant said, it was the Offender who obtained that firearm, which he had possessed for "some time". Based on the Complainant's evidence, I am satisfied that the Offender had a practice of leaving the shotgun next to the refrigerator in the kitchen, and that on the morning of the events, in the course of an argument, the Offender took the gun from next to the refrigerator, unwrapping it so that it was visible as he walked past the Complainant, and that he then took the weapon to the garage, where it was later found by Police with assistance from the Complainant.

Objective seriousness - Count 4

The evidence clearly supports the conclusion, which I accept, that the weapon was kept by the Offender in very non secure locations, including the kitchen and the garage. The Offender had been in possession of the weapon for some time - which I infer was at least weeks or months, and not for a brief or momentary period. The weapon was in working order, although it was not loaded, and no ammunition for it was found at the house. The Crown argued that I should take into account the evidence suggesting that it was the Offender who had in fact shortened the shotgun. While I accept that there is evidence supporting this conclusion, I do not intend to take this into account, given that shortening a firearm is a discrete offence with which the Offender has never been charged. To do so could involve De Simoni [1] error, notwithstanding the fact that the two offences carry the same maximum penalty.
There is no direct evidence as to the purpose for which the Offender had possession of the weapon. While the Crown argued that the weapon was in the Offender's possession for the purpose of intimidation and control of the Complainant, the Crown also appropriately noted that I need to be cautious about this suggestion, given the not guilty verdict on count 1. Having considered the issue, I am not satisfied beyond reasonable doubt that the Offender's possession of the weapon was for such a purpose. Rather, and having regard to the other items, such as the extendable baton, the nunchakus, and Japanese swords that were on display in the bedroom, it seems to me more likely that the Offender had possession of the firearm, and these other items, because he had an interest in collecting and handling weapons.
Nonetheless, and as was said in R v Lachlan [2015] NSWCCA 178 - shortened firearms can have no legitimate purpose, and are particularly dangerous because of their capacity for concealment and use in serious criminal activity.
Also, while there is no suggestion that the Offender pointed the weapon at the Complainant, I am satisfied beyond reasonable doubt that he at least displayed the weapon to her as he walked past, which would have been a somewhat frightening thing in the context of the domestic argument that was taking place.
Having regard to these various matters, I assess the objective seriousness of the count 4 offence as near the mid-range.

Facts and objective seriousness of Count 6 (Baton) and Count 7 (Nunchakus)

These two prohibited weapons (extended baton and Nunchakus) were found in the main bedroom of the house in which the Offender and the Complainant jointly had been living.
The possession of these items involved weapons which were reasonably capable of concealment, but which I regard as falling towards the lower end of the scale of items within the Weapons Prohibition Act 1998. It appears that they had been in the possession of the Offender for quite some time, and according to the Offender in his evidence at trial, were in his possession in the context of his interest in and practice of martial arts, and for personal protection. The possession of these items was not an isolated act however, as is demonstrated by the fact that there are two offences.
In my opinion these two offences fall within the lower end of objective seriousness.

The s.166 matters

Sequence 1 is a charge of intentionally damaging property, being a Suzuki Cross motor vehicle. In relation to this charge, Counsel for the Offender noted that it had never been in dispute that the Offender damaged the car, and accepted that a finding of guilt can be made in relation to this charge. The Complainant's evidence was that, after an altercation inside the house, the Offender went outside and used a very strong type of walking stick to smash up her car. She described hearing loud noises while this was being done, and said that not only were the windows damaged, but that the side mirror was damaged and there were dints in parts of the car's metal body. Exhibit 4 in the trial includes photos which show clearly the serious damage that was done to the car, and in particular to its windows. I am satisfied beyond reasonable doubt that the Offender committed the offence of intentionally damaging the Suzuki Cross motor vehicle, which was the property of the Complainant. The maximum penalty for that offence is 5 years imprisonment, but subject to the jurisdictional restrictions of the Local Court.
Given the serious nature of the damage, the fact that a weapon was used, and that the acts were deliberate, I regard this offence as around the mid range of objective seriousness.
Sequence 4 is a charge under s.36 of the Firearms Act 1996, of possessing an unregistered firearm, being the shortened double-barrelled shotgun that is also the subject of count 4 on which the jury found the Offender guilty. There is no dispute that this firearm was unregistered, and, consistently with the jury's finding that the Accused possessed it, no dispute that I should find this offence made out. I am satisfied beyond reasonable doubt that this offence is proved. The maximum penalty for this offence is 14 years, although again in imposing penalty I am subject to the jurisdictional limits of the Local Court. Having regard to the findings I have already made about the possession of this weapon, I regard the objective seriousness of this s.36 offence as near the mid range. Any sentence for the offence however will have to take into account that count 4 on the indictment relates to the same weapon, and so any term of imprisonment, ought in my opinion, be concurrent.
Sequence 5 is a charge that Mr Noud on 27/9/18 assaulted the Complainant Ms Reid. In support of this charge, the Crown relies on evidence from the Complainant to the effect that in the course of an argument involving the Offender, the Complainant was pushed by him out of the shed in the backyard. This was the effect of what she told Police in the DVEC interview conducted very shortly after the events. This was also the effect of her evidence at T11 where she said that after she saw the Offender smashing up the car, she ran to the shed for protection and that he approached her and pushed her out of the shed, after which she re-entered the house, and was followed by the Offender.
It was submitted on behalf of the Offender that this charge is not proved beyond reasonable doubt. It was submitted that this alleged assault was part of the allegations relied on in support of the count 1 intimidate charge, in relation to which the jury was not satisfied beyond reasonable doubt. In these circumstances it was argued that I could not, consistent with the jury's verdict, be satisfied beyond reasonable doubt of this offence. In addition, or perhaps alternatively, it was submitted that the jury might not have been satisfied that self-defence had been negatived beyond reasonable doubt, and that equally I would not be satisfied that it had been negatived. In this regard, the Offender points to his own evidence that he pushed the Complainant away as she was punching him in the shoulder.
In relation to these arguments, I make the following observations. Firstly, I do not accept that the jury's verdict of not guilty on count 1 means that it necessarily rejected the Complainant's evidence that she was pushed by the Offender as she alleged. The Crown case at trial on count 1 relied on 4 particularised acts as amounting to the alleged intimidation. It was always going to be a difficulty for the Crown to prove this count, given that the jury had to be, and was, directed that the charge required proof beyond reasonable of each and all of the particulars. I do not therefore regard the not guilty verdict on count 1 as necessarily involving a rejection of the Complainant's evidence that she was pushed by the Accused/Offender.
The question then is whether I am satisfied beyond reasonable doubt about the Complainant's evidence of being pushed, and given that self-defence has been raised, whether the Crown has disproved beyond reasonable doubt that Mr Noud was acting in self-defence.
The evidence of the Complainant was that she had gone into the yard in an attempt to calm the Offender, and that this was what she regularly did when he lost his temper. She said that after he had smashed the car, he was standing with the stick in his hand, was still angry, and came towards her with the stick. She said that, instinctively, she retreated into the shed as it was the closest form of protection. The Complainant's evidence, which I found compelling, was also that "I don't know what I was thinking when I did that. I honestly can't tell you what I was thinking when I did that reaction", and that it was simply instinctive. Her evidence on this topic, to my mind, had the ring of truth about it, and her evidence that she was fearful is supported powerfully by the fact that the Offender had just violently damaged the car, with a stick, which, I am satisfied beyond reasonable doubt, was still in his possession at the time of the alleged assault.
The Offender points to his own evidence that he pushed the Complainant only because she was punching him, but I do not accept this evidence. As I have already said, I found the Complainant's evidence compelling in relation to her description of these events. The Offender's evidence was that after smashing the car, he "regretted it" and "put his head down and started going to the access door to the garage". However, in my opinion this is not consistent with the attack that he had just made on the car, which was not just one impulsive action, but a sustained and frenzied course of violent conduct involving the infliction of very serious damage to the car. I simply do not accept his evidence that immediately after this he felt remorseful and started to walk away. It is implausible. Nor do I accept his evidence that the Complainant, who was much smaller than him, and unarmed, attacked him by punching him. It defies common sense to conclude that she would have endangered herself in such a way in circumstances where the Offender had just inflicted such violent damage on the car, and was still in possession of the walking stick he used to do it. I am satisfied that the Offender did assault the Complainant by pushing her as alleged and that the Crown has disproved self-defence. I find this offence proven beyond reasonable doubt.
In terms of objective seriousness, the assault was brief or momentary, and did not result in any physical injury to the Complainant. However, given that the assault occurred immediately after the Offender had inflicted very violent damage to the Complainant's car with the stick, and given that the Complainant knew there was a firearm nearby, I have no doubt that the assault would have been quite disturbing for the Complainant. Nonetheless I assess the objective seriousness as being towards the lower range.
Subjective matters
The Offender is nearly 42 years of age, and was 38 at the time of the offences. While he has been before Courts for offences in the past, these were dealt with in a manner such that he must be treated as a man of no prior convictions.
His background and current circumstances have been placed before the Court by means of some medical and character material, a psychological report, and his evidence on oath at sentence.
The psychological report, the contents of which the Offender affirmed in evidence, sets out the following relevant matters of which I am satisfied. The Offender's childhood was marked by some exposure to violence and trauma. His father was affiliated with an outlaw motor cycle gang, and his parents separated when he was aged 12. Apparently prior to this separation, the Offender's mother 3 times attempted suicide and had admissions to a Psychiatric Hospital on at least one occasion. Following the marital separation, the Offender and his siblings lived with their father, and the Offender experienced serious violence and physical abuse from his father.
The Offender has had no contact with his mother since he was 12, and at age 18, he severed contact with his father and the rest of his family after concluding that they were "toxic".
In his late teens, the Offender undertook training as a Mechanic, and he subsequently worked as a Heavy Vehicle Mechanic in remote areas on a fly in/out basis. This continued until 2016, when he suffered a significant injury to his left knee, when a very heavy truck tyre fell on it. That injury caused long term and serious problems which continue currently. This is supported by a number medical reports that were admitted in evidence on sentence. The Offender has since this injury had significant problems with his mobility including using stairs, bending and squatting and picking things up. He generally uses a walking stick to support himself, and now has significant problems also with his right knee due to its having to take more of the weight-bearing load. He also has wasting of the quadriceps, osteoarthritis in his knees, and also back problems. These difficulties are well and truly confirmed in the medical material, which also record the fact that the Offender also suffers from pain on a daily basis, which often interrupts his ability to sleep. He is significantly dependant on opioid drugs such as Endone to assist with his pain.
The consequences of these problems have been very serious for the Offender, who has lost the career he previously enjoyed, and has prevented him also from pursuing his previous interests in attending the gym, riding motor bikes, and doing martial arts.
According to the November 2021 report of Dr Millons, the Offender will likely require bilateral knee replacements, and his prognosis is poor. In July 2022, the Insurer GIO gave approval to commence steps towards a left knee replacement, and in this regard, the Offender recently consulted with an orthopaedic surgeon.
The Offender's injuries have also had a significant financial impact, and a substantial impact on the Offender's mental health. He has in the past been diagnosed with an adjustment disorder and depressed mood, for which he attended counselling for about 18 months.
When assessed in July 2022, by Psychologist Dr Rebecca Smith, the Offender reported still struggling with anxiety, especially with respect to the prospects that he will be returned to custody, which he found particularly difficult when refused bail from September to December 2018. The Psychologist noted that the Offender will need to continue with some form of psychological support, and that the Offender accepts this, and appears capable of engaging appropriately with therapy, given his compliant history in this regard.

Remorse / Prospects

The Offender maintains his denial in relation to the shortened firearm, and in relation to the assault - and so there is no remorse in relation to these offences.
There was some remorse expressed by the Offender in his evidence at trial, for having damaged the motor vehicle, however as earlier noted, I do not accept this evidence. It is also inconsistent with my finding that after this, the Offender assaulted the Complainant by pushing her.
The pleas of guilty in relation to damaging the car, and being in possession of the extendable baton and wooden nunchakus do however, amount to some limited evidence of remorse.
In terms of future risk, I accept that he has a very good work history, but the relevance of this for the future is limited, given that he is currently unable to work due to his physical problems. In circumstances where I have little information about the Offender's future risk, the most significant factor is that he is in practical terms a person with no prior criminal convictions, which is of some significance, given his age. Balancing what material I do have, it seems to me that his prospects of rehabilitation are reasonable.

Bugmy factors

As is well established, an Offender who has experienced a deprived or traumatic background, especially when young, is entitled to have that fact given full weight in sentencing: Bugmy v The Queen [2013] HCA 37. That is because a person who has been exposed to extreme violence or serious abuse may have lasting impacts on them, and their ability to control a recourse to violence in response to frustration and anger. Each case will however depend on its circumstances, and of course the nature and extent of one Offender's background will never be the same as any other Offender. It is therefore necessary to approach the Bugmy principle with some degree of flexibility. In the case now before the Court, the Offender's childhood, in so far as it has been described in evidence, is certainly not as extreme or traumatic as some cases that come before the Court. However there is no "bright line" which separates those cases where Bugmy principles are engaged, and those where they are not.
In the case of Mr Noud, I accept that Bugmy principles are engaged to a material degree. It seems to me that his exposure to violence, and probably weapons (given that his father was a Sergeant-at-Arms in an outlaw motor cycle gang) are matters that are likely to have inured him to violence and also normalised to some extent the possession of weapons. I am satisfied therefore that his moral culpability is reduced to some degree.
In this particular case, it also seems to me that this background interacted badly with the Offender's physical issues, which included ongoing pain and frustration associated with his mobility problems, and made him more prone to an aggressive outburst such as that which occurred when he smashed the Complainant's car and then assaulted her.

Delay

There has been some delay in this matter, given that the Offender was arrested and charged almost 4 years ago. During that period he has not committed any other offences, which is a matter I have taken into account generally, and when assessing his future prospects. While the delay in this case is not of a type that should mitigate the appropriate penalty to a substantial degree, I have taken into account the undoubted stress and anxiety that the Offender would have experienced since his arrest.

Likely impact of prison term

In determining the appropriate sentence for all offences I have taken into account that the Offender's mental state involving depression, anxiety and stress will make any period of imprisonment very difficult for him.
Furthermore, I accept, and have given considerable weight, especially in determining the non parole period, to the fact that the offender's physical disabilities and chronic pain will make any period in custody considerably more difficult than for most inmates, given the limited allowance that will likely be able to be made for his mobility issues, and given the likelihood that in a custodial environment he will not receive the type and level of pain relief that he is accustomed to.
I have also taken into account that any prison term will be served during the current pandemic, with its limitations on access to visitors, access to programs and perhaps medical treatment, as well as the likelihood of lockdowns.

ADVO

The Crown also seeks that I impose an Apprehended Domestic Violence Order protecting the Complainant. The Offender opposes this and observes that such an order was in place for 3 ½ years until April 2022, when it was withdrawn, and that there were no breaches of the order during that period. Having considered the matter, and this history, and in the absence of any fresh evidence, I am not satisfied on the balance of probabilities that the Complainant has reasonable grounds to fear and in fact fears the commission of a domestic violence offence, or conduct amounting to stalking or intimidation such as to warrant the making of such an order. I observe that this does not prevent a fresh application being made to the Local Court, if Police or the Complainant consider that there is evidence to support it.

Determination

I have had regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act 1999.
I am satisfied, in relation to the count 4 offence, that a term of imprisonment is the only appropriate penalty. I am also satisfied, especially given the need for a custodial sentence on the count 4 offence, that each of the other offences also require the imposition of a period of imprisonment.
I intend to impose an aggregate sentence, and I must therefore nominate the sentences that I would otherwise have imposed. The indicative sentences of imprisonment are as follows.
In relation to count 4, the unauthorised possession of a shortened shotgun, the indicative sentence is one of 3 years imprisonment.
In relation to count 6, the unauthorised possession of a prohibited weapon, being an extendable baton, after taking into account a discount of 25%, the indicative sentence is 7 months, with a non-parole period of 3 ½ months.
In relation to count 7, the unauthorised possession of a prohibited weapon, being the nunchakus, after taking into account a discount of 25%, the indicative sentence is 7 months with a non-parole period of 3 ½ months.
In relation to sequence 1 on the s166 certificate, being damage to the motor vehicle, the indicative sentence is 15 months.
In relation to sequence 4 on the s166 certificate, possession of an unregistered 12-guage shotgun, the indicative sentence is 2 years.
In relation to sequence 5 on the s166 certificate, being the assault of the Complainant, the indicative sentence is 2 months.
I make a generous finding of special circumstances based on: 1. This being the Offender's first time in full-time custody; 2. The Offender's mental health issues; 3. The Offender's physical disabilities; 4. The need for a considerable period of supervision upon release.

Totality

Given that I am imposing sentence for multiple offences, I have also had regard to totality principles and issues of concurrency or accumulation, and the need to avoid a crushing sentence.
The count 4, 6 and 7 offences are each discrete offences, and so there is a need for some degree of notional accumulation, although the sentences for count 6 and 7 should be largely concurrent given that they involve the same general type of weapon and were committed at the same time. I also consider that there is a need for some notional accumulation with respect to the sequence 1 Damage offence and the sequence 5 assault offence. However the penalty for the sequence 4 offence ought to be concurrent with the count 4 offence, given that they both involve the same firearm.
The Offender is convicted of each offence.
I impose an aggregate head sentence of 3 years, 4 months.
I impose a non-parole period of 1 year 8 months.
Having regard to the 79 days previously spent in custody, I order that the sentence commence on 15/6/22. Therefore, the head sentence will expire on 14/10/25, and the non-parole period will expire on 14/2/24.
I decline to make an ADVO.

Endnote

R v De Simoni (1981) 147 CLR 383 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2022

At a glance

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Judgment (13 paragraphs)

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Cases Cited (3)

Cited By (1)