The Queen v Noffke[1999] QCA 340

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 24 August 1999

1. I have read the joint reasons for judgment of McPherson and Pincus JJA and am in general agreement with them and with the order they propose.  I am grateful for their statement of the facts which I need not repeat.  I wish to add, however, the following.
2. The applicant's first and only ground of complaint in the notice of application for leave to appeal against sentence was that the sentence was manifestly excessive.  The submissions made on behalf of the applicant additionally claim that there was a procedural error in the sentence process in that evidence was tendered in the proceedings which was not admissible against the applicant.
3. As their Honours have explained, the psychiatric and psychological reports properly tendered in McGrath's case at sentence were not admissible against the applicant.
4. The judge's findings that the applicant "had become something of a mother figure to McGrath, and was exercising great influence over her" and "you appear to be a compulsive liar" during his sentencing of the applicant and her co-accused McGrath do, at first blush, suggest that his Honour may have used the reports admissible in McGrath's case in which similar observations were made against the applicant.  There was, however, other material admissible against the applicant which allowed the judge to make those findings.
5. At the commencement of the sentencing proceedings, counsel who appeared for the applicant below said that the issue as to whether or not the applicant administered a stupefying drug in accordance with the conspiracy was in dispute but otherwise "We're really not disputing any of the Crown case.  It will really only be matters that your Honour may take into consideration in considering the extent of the criminal responsibility."
6. A further dispute then arose as to whether the applicant had influenced McGrath when the two were in the watch house together in Dalby causing McGrath to retract her earlier statements to police implicating the applicant in the conspiracy to murder.  The prosecutor submitted that this demonstrated the unequal relationship which existed between the two.  Counsel for the applicant below indicated that he did not accept that submission and the sentencing judge invited him to call evidence.
7. The evidence called did not seem to relate to the issues isolated as in dispute.  Taylor (a former husband and, at sentence, current de facto of the applicant), the victim Mr Noffke (the applicant's husband at the time of the offence), the applicant's mother and a daughter of the applicant were then called to give evidence on behalf of the applicant.  Their evidence dealt largely with the bad influence of  Moore (another former husband of the applicant) on the applicant and whether his suggestions as to violent means of dealing with Mr Noffke instigated the commission of the offence.  The prosecution called Moore, who denied these matters.  The applicant did not give evidence.
8. His Honour rejected the evidence of Taylor, found Mr Noffke's evidence unreliable and the evidence of the applicant's mother irrelevant.  Whilst accepting the evidence of the applicant's daughter, he found her evidence too vague to draw any inference that the applicant was in fear of Moore at the relevant time.  His Honour found the sexual relationship between Moore and the applicant was consensual in the light of the extravagant cross-examination of Moore by the applicant's counsel at committal in which detailed implausible instructions were put to Moore and denied.  In the absence of evidence from the applicant, the judge rejected the suggestion that the applicant had been influenced by Moore.  The evidence established that the applicant had made outrageous false claims that a son had been murdered, that large sums of money had been inherited by some of her children from Moore's father, and that the applicant was not a willing participant in sexual intercourse with Moore.  In those circumstances it is hardly surprising that his Honour concluded that the applicant appeared to be "a compulsive liar".
9. The prosecutor below submitted that "... the younger girl McGrath was very friendly with Lin Noffke and took a particular interest and had a very real fondness for the numerous children and was in the role of almost an assistant carer and permanent babysitter at the household where they all lived together, ... it's quite apparent that she was to a significant degree under the wing of and under the influence of the older of the two, ...".  The prosecutor noted that McGrath was 19 at the time of the offence, compared to the applicant who was 30 and McGrath had no prior convictions while the applicant had a number of prior convictions for false pretences which were committed in 1992 and for which she had been given probation.
10. The difference in age between the conspirators, McGrath's role as household helper and babysitter to the applicant and her children and McGrath's absence of benefit from the death of the victim of this sinister plan support his Honour's finding that the applicant "had become something of a mother figure to McGrath and was exercising great influence over her" quite independently of the reports relating only to McGrath.  This finding was also supported by McGrath's letter to police retracting her statement implicating the applicant whilst McGrath and the applicant were together in the Dalby watch house; no evidence was given or called by the applicant to refute the obvious inference to be drawn from these facts.
11. After a careful review of all the material before his Honour, I am finally satisfied that his Honour was entitled to reach those findings in respect of the applicant from material other than the reports in evidence in McGrath's case, perhaps inadvertently repeating expressions used in the reports on McGrath.
12. Whilst the reports tendered on behalf of McGrath were not seen by the applicant's experienced  counsel, reference was made to them by McGrath's counsel who submitted that "... my client in her relationship with Mrs Noffke was certainly not on an equal footing and was a person who was influenced obviously to an extent that was most unhealthy insofar as Mrs McGrath was concerned and I would urge that your Honour would conclude that but for that association and influence, she would not be before your Honour today."  He submitted the reports demonstrated "... the inequality in the relationship and the extent to which [McGrath] came under the influence of [the applicant]".  It is unremarkable that the applicant's counsel made no objection to their tender and made no request to see them.
13. After carefully considering the facts of the case, his Honour concluded that a term of imprisonment of six years was appropriate and sentenced McGrath and the applicant accordingly.  His Honour found the significant mitigating factors in McGrath's case contained in the psychiatric and psychological reports tendered on her behalf, her youth, her prior good record, her cooperation with the authorities and the period already spent in custody warranted the unusually early recommendation for immediate parole.  Included in those mitigating factors was the acceptance by his Honour of the unequal relationship between McGrath and the applicant, a fact which resulted in a lesser penalty for McGrath and therefore one for McGrath to establish on the balance of probabilities: see R v Morrison.^[1]
14. The learned sentencing judge did not treat the unequal relationship between the co-conspirators as warranting a heavier penalty for the applicant, but rather as a mitigating factor in favour of McGrath.  There has been no procedural error in this regard.
15. It is desirable wherever practical that co-accused are sentenced by the same judge so that consistent findings of fact and apportionment of responsibility can be made.  This has rightly occurred here.
16. As McPherson and Pincus JJA have noted, this case demonstrates the care that must be taken in conducting sentences involving joint offenders to ensure that material admissible only in respect of one is not considered in the other's case.  Care must also be taken by counsel and the sentencing judge to ensure that disputed issues of fact are clearly dealt with in accordance with Morrison.
17. There were fewer mitigating factors in favour of the applicant: she was not youthful and had prior convictions.  The offence was very serious; his Honour noted that the applicant planned the murder of her husband whom she had manipulated and deluded.  His Honour generously took into account her plea of guilty and her responsibility for six children, including infant triplets, in recommending eligibility for parole after two years.
18. The difference between the sentences imposed on each co-accused does not give rise to a justifiable sense of grievance in the circumstances.^[2]  For these reasons and those given by McPherson and Pincus JJA, the applicant's sentence is not manifestly excessive.
19. The application for leave to appeal against sentence should be refused.

JOINT REASONS FOR JUDGMENT - McPHERSON & PINCUS JJA

Judgment delivered 24 August 1999

1. In December 1998, the applicant Melinda Margaret Noffke was sentenced in the Circuit Court at Toowoomba to imprisonment for six years with a recommendation for parole after two years.  Her offence, to which she pleaded guilty on the morning on which the trial was due to begin but after a charge against her of attempted murder was abandoned, was that on 23 January 1998 she had conspired with Robyn Michelle McGrath to kill Kevin Wayne Noffke. On the same occasion in that Court, Robyn McGrath was arraigned and pleaded guilty to a similar offence of conspiring with the applicant to kill Kevin Noffke. She was also sentenced to imprisonment for six years, but in her case with a recommendation that she be considered for parole immediately.
2. The circumstances of the offence are unusual and, one is tempted to hope, extraordinary. The applicant was born in November 1966 and so was some 31 years old at the time of the offence. At some time before 1990 she was married to Mr Rodney Moore, by whom she had three children. That marriage came to an end in about 1990, and she then married a Mr Taylor. Between 1990 and 1992 the applicant on various occasions pleaded guilty in the magistrates court to a total of some 40 or so charges of false pretenses and other forms of criminal dishonesty. She has, however, before this never been convicted of an offence involving personal violence.
3. At some time after marrying the applicant, Mr Taylor served a term in prison for armed robbery. "I've been away", he explained in his evidence at the sentence hearing, and it may perhaps have been because of his absence that the applicant's marriage to him also ended in divorce.  Then, about four or more years later, she married Kevin Noffke by whom she has had three children, who are triplets. Since the commission by her of the subject offence in early 1998, their marriage has also been dissolved, in proceedings in which Mr Noffke was the petitioner or applicant. It may be technically correct to speak of him as the complainant in relation to the offence now before this Court; but, in his evidence at the sentence hearing in December 1998, he claimed still to be in love with the applicant, and to have sought to have the charges against her discontinued. By that time the applicant was, however, again living with Mr Taylor, who in his evidence at the hearing also professed his love for her. They were then residing in New South Wales, where in December 1998 the applicant was said to be conducting a bridal boutique business. The current disposition of the triplets is not entirely clear from the material in the appeal record; but it appears that, at the time of the sentence hearing the applicant was looking after the children of her marriage to Mr Moore, of whom one or more of whom are not in good health, and she may then have had the custody of all six of her children.
4. It was the applicant's sudden attraction to her former husband Mr Moore that provided the impetus for the offence to which she later pleaded guilty in the Toowoomba Circuit Court. At about Christmas time in 1997 she travelled from Dalby, where she and the complainant were living together, to Brisbane to enable Mr Moore to have a period of access to the children of her marriage to him.  He was then living at Staplyton, where he was the manager of the rubbish dump, and she left the children with him before returning to Dalby. Following a telephone call from him, she soon travelled back to Brisbane. Sexual relations took place between them, and they discussed a proposal for resuming their previous relationship.
5. The plan to do so advanced to the point where, either then or later, the applicant took to Brisbane a trailer load of her belongings and furnishings, leaving the triplets in the custody and at the home of a baby‑sitter. When the complainant found out what had happened, he went to the baby‑sitter's house and took his children away from the baby-sitter. Having been informed of his actions in that regard, the applicant returned to Dalby on 22 January 1998, where she resumed cohabitation with the complainant.
6. His action in retaking the children had, however, displeased the applicant, and, after arriving back in Dalby, she discussed with her co-accused Robyn McGrath a plan to rid herself of the complainant. An agreement was reached between them that, in the early hours of 22 January 1998, Ms McGrath would enter the home of the applicant and Mr Noffke and stab him to death. For that purpose, the applicant would, before going to bed, unlock the back door of the house and leave a knife in the kitchen for McGrath to use in stabbing the complainant, to whom, it was arranged, the applicant would previously have fed a drug to ensure that he would be asleep. So as to leave no identifiable finger prints, McGrath purchased a pair of rubber gloves, which she wore on the night when she entered the house.
7. On arriving at the house early in the morning of 23 January, McGrath found that, as had been arranged, the back door was unlocked and the knife had been left in the kitchen. It was, however, from this point that the plan went astray. The drug which the applicant had given to the complainant had not had its intended effect, and, although he was in bed with her, he was not asleep. He became conscious of seeing a head appearing, disappearing and re-appearing around the door on several occasions. He at first thought it was one of his stepdaughters, but eventually leapt out of bed and seized the intruder (who was Robyn McGrath) pinning her to a cupboard. After some discussion with her, he briefly left the bedroom. During his absence, McGrath showed the knife (which she still had and of which the complainant was then unaware) to the applicant, and then threw it out of the window of the bedroom.
8. Shortly afterwards, the complainant drove McGrath back to her house. On returning home, he found the applicant was upset. She told him to look out of the window and, on doing so, he saw the knife.  The police were summoned and McGrath was interviewed. She  at first denied any criminal conduct on her part, but eventually disclosed the existence of the plan to kill. She was then persuaded to make a telephone call to the applicant, which was tape recorded (ex S8), in the course of which the failure of the conspiracy was discussed by both parties, and by that means evidence of the applicant's part in it was obtained.
9. Conspiracy to kill is a serious offence. By s309 of the Criminal Code it is made a specific crime, for which the maximum penalty is imprisonment for 14 years. Sentences imposed for it in other States, and in particular Western Australia where the same maximum prevails, have tended to range from six to eight years. Not long ago this Court refused leave to appeal from a sentence of imprisonment for six years, with a recommendation for parole after two and a half years, in the case of a similar offence. See R v Pandelis (CA 115/1998; 19 June 1999). That sentence was imposed on the applicant as "the instigator and prime mover" of the conspiracy. He had what is described as a substantial criminal history. The other conspirators received effective sentences similar to that imposed on McGrath in this instance. They had intervened at a late stage to prevent the fatal plan from being carried out. In giving reasons, with which Demack and Helman JJ agreed, Chesterman J said the sentence was "at the low end of the range", and so did not justify complaint, whether on the score of disparity or otherwise. In R v Jegodtka (CA 273/1993; 9 Nov 1993), the Court of Appeal refused leave to appeal against a sentence of six years with a recommendation for parole after 20 months, which was arrived at after taking account of some 10 weeks spent in pre-sentence custody. The applicant in that case, who had what was said to be a complex personality disorder, had engaged as a contract killer a person who, unknown to her, was in fact an undercover police officer. There was therefore never any prospect of the conspiracy being be carried out. The same cannot be said of the agreement now before us.  Indeed, the present case is one that fell not far short of constituting an attempt to kill; and, if in fact it had succeeded, would have amounted to murder.
10. No doubt in practice the severity of a sentence imposed under s309 is likely to be influenced by factors such as the extent to which the plan to kill has been carried into effect, and the circumstances that caused it to be frustrated or abandoned. Considered by reference to those matters, the sentence imposed here plainly fell well within the limits of proper sentencing discretion. On behalf of the applicant, Mr Callaghan stressed that her children would suffer if she were to be deprived of the care of them during her imprisonment; but, although that may well be a relevant consideration, it scarcely assists a mother who herself  planned to deprive those children of the life and protection of their father, in order to indulge an impulse for a former husband, or (as the case may be) to give vent to her irritation on finding he had retaken custody of the young triplets from the baby-sitter to whom she had committed them. The fact (which was also relied on) that, on his own evidence, the complainant personally has apparently suffered nothing more serious than the pangs of unrequited love, while it may possibly be relevant to sentence, does not greatly detract from the seriousness of an offence, in relation to which both general and particular deterrence is obviously a major consideration.
11. There are, in any event, other factors which argue forcefully for a sentence of at least the duration of that imposed here. It is true that the institution of marriage has at this century's end now lost some of its former sanctity or its lustre; but it continues to be a relationship of which mutual trust and confidence remain the essential foundation. To use, as the applicant did here, opportunities and information gained from the relationship as a means of arranging for the death of a spouse or partner fairly attracts the description treacherous. Having recruited McGrath for the task, the applicant herself arranged for the back door to be unlocked, left the knife in the kitchen, attempted to drug the complainant, and then went to bed with him in circumstances which can only have been designed to lull him into thinking that everything was normal. It was not through any intervention or change of mind on her part that the scheme did not proceed to a successful and fatal conclusion. Nothing she is shown to have said or done since that time discloses any remorse on her part.
12. The sentence imposed on the applicant is therefore not one with which this Court would be justified in interfering. Contrasting it with the sentence imposed on Robyn McGrath (which in terms of the parole recommendation was much lighter) may be a natural course to adopt; but it was not, as we understood Mr Callaghan's submission to this Court, a matter in which disparity in sentences was the principal complaint. His main argument was that, in arriving at the sentence imposed on his client, the learned judge must have taken account of the two psychiatric reports (exs S 4 and S 5) in respect of the co-accused McGrath, or of the facts and opinions they contained. At the sentence hearing, at which oral testimony was adduced, those reports were not supplied to counsel for the applicant, although it is also true that he was aware they were being tendered and received in evidence. Their purpose, so far as presently relevant, was to show that, in becoming a party to the conspiracy and participating in it to the extent that she did, McGrath was acting under the influence of the applicant, who, his Honour said "had become something of a mother figure to McGrath, and was exercising great influence over her"; and, in addressing the applicant in the course of his sentencing remarks, the learned judge said to her, "You appear to be a compulsive liar".
13. There are passages in the two reports which correspond to those two observations, which make it possible that they were derived from that source. If that is so, then his Honour would no doubt have been wrong to act on them as evidence against the applicant. The admissibility and function of the reports S4 and S5 were properly confined to providing reasons why McGrath should be (as in the end she was) treated leniently in the matter of sentencing. It was plainly open to her to establish by means of those reports at the hearing that, in committing the offence, she was acting under the influence of the applicant.  It did not follow, as a matter of either logic or of law, that those reports or their contents were also available against the applicant as material capable of establishing to her detriment that she had in fact exercised some such improper influence over McGrath.
14. The circumstances of the present case serve as a reminder of the care that, in conducting a sentence hearing involving joint offenders, ought to be taken to ensure that material admissible in favour of or against one of them is not used to the disadvantage of another such offender unless it is properly admissible in the proceedings against that other person.  At the trial of conspirators or joint offenders, the decisions in Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87 provide some guide to the limits of admissibility against one conspirator of statements made out of court by another conspirator. As the judgments in those cases show, however, the implied authority of one conspirator to act or speak on behalf of another is ordinarily co-terminous with the joint enterprise, and therefore ceases when the enterprise is brought to an end. Once that has happened, a statement, such as a confession or admission made by one of them in the absence of the other, is ordinarily receivable in evidence, if at all, only against the individual who made it, and not otherwise.  See Tripodi v The Queen (1961) 104 CLR 1, 7.
15. The same principles necessarily apply in proceedings on sentences. Facts asserted in a confession or admission made after the event by one co-offender are properly admissible against or even on occasions in favour of the one who made them;^[3] but not against anyone else unless those facts are established by evidence in the ordinary way. In sentencing, however, the strict rules of proof are commonly relaxed under the practice followed at such hearings, by which a statement of fact made from the Bar table by counsel is ordinarily taken as admitted or accepted unless specifically contested by opposing counsel. Subject to any qualification introduced by that procedure, it remains generally true to say, however, that informal statements and material going in mitigation or in exacerbation of the criminal conduct of one co-offender are not capable of being relied on in exacerbation of the offence of another unless the facts in issue are proved or admitted in the usual way.
16. The statements of fact in exs S 4 and S 5 ascribed to McGrath in the course of her consultations with the psychiatrist and psychologists who interviewed her, and the opinions which they presented in those reports about the state of the relationship between her and the applicant, were therefore plainly admissible and properly admitted in the sentencing proceedings against McGrath. His Honour was entitled to take them into account in her favour as going in mitigation of her offence and in arriving at the sentence imposed in her case. He was not, however, justified in taking them into account as tending to aggravate or exacerbate the offence committed by the applicant.
17. We are, however, not fully persuaded that the observations of the learned judge to which objection is now taken on this application were in fact derived by his Honour from the two reports in question. At various stages in the proceedings on sentence, statements were made from the Bar table by counsel for the Crown to the general effect that McGrath was "to a significant degree under the wing of and under the influence of the older of the two" women. The specific statement just quoted was made early in the proceedings in response to a question on the subject by his Honour. Its correctness was never challenged by counsel for the applicant. In any event, it accords with the objective circumstances not in dispute at the hearing. At the time of the offence in January 1999, Robyn McGrath was a young woman of 19 years of age, with no previous convictions of any kind, who was living in Dalby apart from her family at Bauple (which is a small town near Maryborough). She had for a short time been working as a part-time bar assistant at the local RSL Club, which is where and how she came to meet the applicant. She had no discernible reason for wishing to kill the applicant's husband, and none was identified in submissions to this Court. The text of the very peculiar and ill-contrived letter (ex S3), written to Det Schott at a time when both women were much in each other's company in prison shortly after their arrest, serves only to confirm the natural inference that Robyn McGrath was acting under the influence of her older and much more experienced companion.
18. Whether this material would of itself have sufficed to justify the observations of his Honour that are now the subject of complaint is not the question. The whole of the material, including exs S4 and S5, was available at the hearing as tending to establish matters in favour of McGrath that operated powerfully in mitigation of her part in the offence and so justified the recommendation for parole accompanying the sentence of imprisonment imposed on her. There was nothing comparable in favour of the applicant. She did not herself give evidence at the hearing, nor did she offer reports, references or certificates showing that she was a person who, like McGrath, was perhaps, on one view of the affair, as much sinned against as sinning. The evidence, which was extensive, adduced on her behalf at the hearing aimed to establish that, in doing what she did, she was acting not under the influence of Robyn McGrath but under coercion or threats from her former husband Mr Moore. Having heard the evidence of Moore and of other witnesses on the subject, his Honour rejected that assertion, concluding as he did that nothing which had been said to her by Moore in any way mitigated the applicant's culpability.
19. The result therefore is that the applicant received a sentence which was appropriate to the offence she had committed. There was no material capable of being considered as going in mitigation of her offence as, by contrast, there was in the case of her co-accused McGrath, who in consequence received a much more favourable recommendation for parole. The matter is therefore not one in which the principle of sentencing parity is relevant or capable of being invoked on behalf of the applicant. The culpability (to use his Honour's expression) of the two conspirators was far from equal. The difference in the effective sentences imposed on each of the two offenders resulted not from any miscarriage in the sentencing discretion, or from failure to apply the parity principle, but simply from the circumstance that, in the case of one of them McGrath, mitigating factors were demonstrated, whereas in the case of the applicant they were not. That is plainly not a difference which the principle of parity in sentencing exists in order to meet, avoid or correct.
20. The application for leave to appeal against sentence should be refused.