Mitten v R

Court of Criminal Appeal (NSW)|2009-04-06|Before: Grove J, Howie J, Buddin J

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 3

1 Grant an extension of time for making an application for leave to appeal. 2 Grant leave to appeal. DECISION: 3 Allow the appeal. 4 Quash the sentence imposed in the District Court. 5 In substitution therefore, and taking into account the Form 1 matters, sentence the applicant to a non-parole period of 3 years to date from 8 August 2007 and to expire on 7 August 2010 on which date the applicant will be eligible for release on parole. The total term is one of 5 years which will expire on 7 August 2012.

CATCHWORDS: Sentencing - sexual intercourse without consent - Form 1 matters - offence committed whilst on bail - assessment of objective seriousness of offence - whether issue of "special circumstances" properly addressed

Gallant v Regina [2006] NSWCCA 339 CASES CITED : R v Way (2004) 60 NSWLR 168 Smith v Regina [2009] NSWCCA 17

PARTIES: Finn Mitten (Applicant) Regina (Respondent)

COUNSEL: T Game SC/P Smart (Applicant) D Arnott SC (Crown) (Respondent)

SOLICITORS: Darryl Quigley Partners Lawyers (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/3613

GROVE J HOWIE J BUDDIN J

TUESDAY 14 APRIL 2009 FINN MITTEN v R Judgment 1 GROVE J: I agree with Buddin J. 2 HOWIE J: I agree with Buddin J. 3 BUDDIN J: The applicant seeks an extension of time within which to apply for leave to appeal against a sentence imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court to an offence, contrary to s 61I of the Crimes Act, of having sexual intercourse without consent. He adhered to that plea when he appeared for sentence. He requested that four further offences be taken into account on sentence. One of the offences on the Form 1 was an indecent assault. A second matter was an offence of resisting arrest which occurred when police sought to arrest the applicant in relation to the offence which is the subject of this application. The two remaining offences related to the possession of small quantities of cocaine and LSD respectively which were discovered in the applicant's possession when he was searched. 4 The maximum penalty for the offence of sexual intercourse without consent is imprisonment for 14 years and a standard non-parole period of 7 years applies to it. For that offence, and taking into account the Form 1 matters, the applicant was sentenced to a non-parole period of 3 years 9 months with a total term of 5 years imprisonment. The applicant has been in continuous custody since his arrest on 8 August 2007 and the sentence was ordered to commence on that day. 5 As there is no issue about the relevant facts, they can be briefly stated. On the evening of 28 July 2007, the victim who was then aged 21, had been socialising with friends in Casino. At about 11.40 pm she and two of her female friends attended a service station in order to purchase food. At about the same time the applicant and a male friend also went in to the service station. The victim and the applicant were strangers to one another. The applicant engaged in friendly banter with the victim whilst she was speaking to the console operator. The applicant then left the store and went to the car in which he and his friend were travelling. He then returned to the store with the hood part of his pullover pulled over his head. There was further conversation of a friendly nature outside the service station. One of the girls then said words to the effect of "Can you give us a lift home?" Having heard that, the applicant walked over to where the victim was standing and said to her words to the effect of "Sure we can you a lift home". He then took hold of the victim and put his arms around her back. He pushed her against a wall and twice bit her to the right side of her neck. The result was that the victim was left with two red marks. The victim asked him to desist. The applicant then reached up under the skirt that the victim was wearing. Although the victim struggled, the applicant held her with his right hand whilst he fondled her vagina with his left hand. The applicant then reached under the victim's underwear and in a quick grabbing movement inserted at least one or two of his fingertips a little way into the victim's vagina. The victim's friends hit the applicant in the back in an endeavour to make him stop. The victim herself swore at the applicant and attempted to pull away from him. She also struck him in the face with her mobile phone in an effort to get him to release her. In due course, the applicant let go of the victim and he and his friend then drove off. The victim was understandably traumatised by the incident and immediately reported it to a security guard at the service station who, in turn, contacted police. 6 Police took several days to locate the applicant. There was CCTV footage from the service station which clearly identified him whilst the victim and one of the other witnesses at the scene were able to identify the applicant from photographs. When spoken to by police, the applicant declined to be interviewed. 7 The offence of indecent assault had occurred about two months earlier. The facts disclose that the victim of that offence was also a stranger to the applicant. The applicant was sitting opposite her whilst she making a phone call from outside a hotel. The applicant then lunged over and kissed her on the mouth, forcing her backwards on to a seat. He then relinquished contact with the victim. A witness to the incident chased him away from the scene. When he was arrested a short time later, the applicant told police that he had done nothing wrong and that he had just kissed her. He was on bail for that offence when he committed the sexual assault. 8 The applicant was born on 3 December 1976 and accordingly was 30 at the time of the offence. He is the middle child in a family of three siblings and grew up in a rural area near Nimbin. According to his mother, he was both hyperactive and rebellious during his childhood. His parents separated whilst he was doing his Higher School Certificate which he was nonetheless able to complete. The applicant gave evidence during the course of the sentence proceedings. He said that after leaving school he had commenced, but had not completed, a university degree at the University of Canberra. Whilst there, he formed a relationship with a woman who was 12 years older than him. As a result of that relationship, he has a son who is now aged 11. For reasons that were not explained, he has been unable to see him for the last 5 years. After that relationship ended, the applicant travelled abroad. Whilst living in London he formed another relationship. It lasted for about 4 years. When it ended in 2007 he returned to Byron Bay to live. That was shortly before the offences in question were committed. He gave evidence that he was very depressed and lonely when that second relationship broke down. 9 The applicant gave evidence that each of the offences had occurred whilst he was heavily affected by illicit drugs and alcohol and that, as a result, his judgment had been clouded. He accepted that in relation to the sexual assault he had completely misinterpreted the situation when one of the victim's companions had requested a lift home. He had thought at the time that it was an invitation to spend the night with her. The sentencing judge was understandably sceptical of that explanation. His Honour said: To interpret anything there as an invitation to engage in immediate sexual conduct is considerably stretching the facts and of course the consumption of alcohol and drugs, while enabling one to understand what happened to an extent, is in no way an excuse for it. 10 In his evidence the applicant, to his credit, expressed regret for his actions and acknowledged the wrongfulness of them. There was also in evidence a letter of apology which he had written to the victim. The sentencing judge accepted the applicant's evidence that he had abstained from drugs and alcohol whilst in custody. It is apparent from the material which was before the sentencing judge that the applicant had had long-standing problems arising from his abuse of both illicit drugs and alcohol and that he had made only sporadic efforts to address those problems in the past. It would appear that cannabis was freely available to him in his parents' home when he was growing up and it may be that it was the abuse of illicit drugs which led a consulting psychologist to diagnose him as having a paranoid personality disorder. The psychologist also considered that unless he ceased substance abuse the applicant remained a "medium" risk of future sexual violence. 11 The applicant gave evidence that he had been employed whilst in custody and that he planned to complete his university studies upon his release on parole. The sentencing judge allowed the applicant a discount for his early plea of guilty, which it can be inferred, was at least 25%.

12 Although the applicant had a prior criminal record, he had never previously served a term of imprisonment. All his previous appearances had been in the Local Court. Given his extensive history of substance abuse it is perhaps a little surprising that he did not come to adverse notice until he was about 23. In 2000 he was placed on a bond for resisting arrest and was fined $300 for possessing a prohibited drug. In 2002 he was placed on a bond for having goods in custody, and was fined $200 for possessing a prohibited weapon and a further $200 for possessing a prohibited drug. Two months later he was fined $200 for two further offences of possessing a prohibited drug. In 2004 he was given a 12 months suspended sentence for offences of assaulting a police officer, resisting a police officer and possessing a prohibited drug. In 2007 he was fined a total of $1200 for offences of resisting a police officer, possessing a prohibited drug and possessing equipment for administering a prohibited drug. 13 The sentencing judge was prepared to conclude that the applicant enjoyed "good prospects of rehabilitation" but was not inclined however, in the light of his history of dependence upon alcohol and illicit drugs, to find that he was unlikely to re-offend. Nor did his Honour see any occasion to make a finding of "special circumstances".

Grounds of Appeal 14 The applicant relies upon the following grounds of appeal:

1 His Honour erred by failing to make adequate and appropriate findings generally and, in particular as to the objective criminality of the offence.

2 The sentencing judge erred by declining to make a finding of special circumstances and thereby appropriately reducing the non-parole period in relation to the head sentence.

3 The sentencing judge had excessive regard throughout the sentencing process to the offence of indecent assault appearing on the Form 1.

Ground 1 15 As I have said at the outset, this was an offence to which a standard non-parole period of 7 years applied. The standard non-parole period applies to an offence which is characterised as being in the middle of the range of objective seriousness. The fact that the applicant pleaded guilty was a reason why the sentencing judge could impose a sentence which departed from the standard non-parole period although that period still remained as a "reference point" in the sentencing process: see R v Way (2004) 60 NSWLR 168 [at 122]. It was nonetheless incumbent upon the sentencing judge to make an assessment of where the present offence lay on the scale of offending. 16 The sentencing judge rejected a submission which was to the effect that because no victim impact statement was available, it could be inferred that the harm to the victim was minimal. In that context, the sentencing judge quite properly observed that: any unlawful sexual assault upon a person is a significant personal matter to them and it may last, the effect of it, for a considerable period. I am not saying that there is any evidence here that there has been significant damage done but equally there is nothing to suggest that the damage was minimal. 17 A little later his Honour said: Looking at the circumstances here, because the Form 1 matters have to be taken into account in assessing the appropriate sentence I appreciate that it is not a high range sexual assault or perhaps not a mid-range but having regard to the factors in the Form 1 and the general background here, but for the plea, I would have regarded the appropriate sentence here as approaching one of seven years. Because of the plea I reduce it to five years. 18 That was the only reference which his Honour made concerning the objective gravity of the offence. Counsel submitted that in the passage to which I have just referred, the sentencing judge erred in taking into account the Form 1 matters in assessing whether the offence was in the middle of the range of objective seriousness. Had his Honour done so, then I accept that it would have been an error. Counsel conceded that the Form 1 matters, and the fact that the applicant was on bail at the time, were factors that were highly relevant to a determination of the overall appropriate sentence. In my view, although the matter is not entirely free from doubt, a fair reading of his Honour's remarks makes it apparent that it was for that purpose, and that purpose alone, that he took those factors into account. Since no error has been established, I would reject this aspect of the applicant's complaint. 19 Counsel then submitted that the sentencing process miscarried because the sentencing judge had failed to make adequate and appropriate findings about the circumstances of the offence, and for that matter, the personal circumstances of the applicant. 20 In particular, counsel submitted that the sentencing judge's assessment that the offence was "perhaps not a mid-range" offence, being somewhat elliptical, did not adequately address the issue which had to be determined. In Smith v Regina [2009] NSWCCA 17, James J, with whom McClellan CJ at CL and Adams J agreed, said: In my opinion, a judge sentencing for an offence for which there is a standard non-parole period should make an unambiguous finding about whether in his judgment the offence is in the middle of the range or above or below the middle of the range. (at par 24) 21 There are a number of other decisions to similar effect. 22 Counsel placed particular reliance on Gallant v Regina [2006] NSWCCA 339 in which Howie J, with whom McClellan CJ at CL and Adams J agreed, said: The sentencing remarks were very brief, requiring only two double spaced pages of transcript. While that is not itself an indication of error, there is the risk that a Judge in the avoidance of prolixity will go too far the other way and fail adequately to refer to or discuss matters of significance in the determination of sentence: see R v Thomas [2006] NSWCCA 313. The sentencing remarks in the present case fail adequately in my view to deal with the issue of the standard non-parole period. For example, there is no finding explicitly as to where in the range of offending the offence fell. (at 69) 23 It was implied that those observations had particular poignancy given that the sentencing judge in that case was also the sentencing judge in the present case. 24 His Honour's remarks on sentence were economical and there is considerable merit in the applicant's complaint about them. In particular I accept the submission that the finding upon the critical issue of where the offence lay on the scale of objective gravity could not be said to be "unambiguous".

Grounds 2 and 3 25 It is convenient to deal with these two grounds together. As I have said, the sentencing judge declined to make a finding of "special circumstances". As to that aspect of the matter, his Honour made the following observations: So although it is his first custodial sentence, I do not think this is an appropriate case in which to find special circumstances and that is substantially because of the Form 1 matters. 26 Two complaints, albeit that they are related, are made in respect of that conclusion. Each of them, in my view, has merit. First, it is difficult to discern what relevance the Form 1 matters had to the question of whether or not "special circumstances" existed. Furthermore, it is clear that the sentencing judge had already had regard to the Form 1 matters when determining the overall objective gravity of the applicant's conduct. Since the objective gravity of the offence affected both the total sentence and the non-parole period, it appears that there has been an element of "double counting". There were, in my view, a number of reasons which would justify a finding of "special circumstances". Apart from the fact that this was the applicant's first custodial sentence, it was apparent that the applicant would benefit from an extended period of supervision in the community in order to address his long-standing problems arising from substance abuse. It was those problems that apparently gave rise to the present offences. If the applicant is able to overcome those problems then the likelihood is that his offending behaviour can be curtailed. 27 I would uphold Grounds 1 - 3. 28 In the circumstances, I am of the view that the court should intervene and proceed to resentence the applicant. That being so, it is unnecessary to separately deal with Ground 4. I also accept the submission made by counsel who appeared on behalf of the applicant at the hearing of the matter that, given the "singular" nature of the factual background to the offences, that little assistance is to be derived from an analysis of other cases. That task had been undertaken in written submissions which had been prepared on behalf of the applicant by different counsel. 29 There was no real issue taken by the Crown with the submission that the sexual assault offence fell into the lower range of objective gravity for an offence of that kind. Indeed the representative of the Crown, who appeared on sentence, had accepted that the offence fell "within the low range of objective seriousness for s 61I offences". In advancing the submission, counsel highlighted the fact that the degree of penetration was slight, and that the incident was of short duration. I accept that the sexual assault offence fell below the middle of the range and was, in that sense, to be assessed as being in the lower range of objective seriousness. Nevertheless the circumstances of the offence although unusual, were no doubt particularly humiliating for the victim especially given that the incident took place in a public place in full view of other people, including her friends. 30 I accept that the indecent assault although it revealed conduct of a disturbing and invasive kind was also at the low end of the spectrum for that category of offence. However, it is a matter of particular concern that within weeks of that offence, and whilst on bail for it, the applicant saw fit to sexually assault a woman whom he had only met moments before. Notwithstanding the fact that each of the offences when considered in isolation, may have fallen into the lower range of each of those particular offences, when they are seen in the context of an escalation in seriousness of the applicant's conduct, the need to reflect a measure of both general and personal deterrence in the sentence becomes clear. In the circumstances, although I would reduce the non-parole period to give effect to a finding of "special circumstances" I would not disturb the overall sentence. 31 I propose the following orders.

1 Grant an extension of time for making an application for leave to appeal.

4 Quash the sentence imposed in the District Court.

5 In substitution therefore, and taking into account the Form 1 matters, sentence the applicant to a non-parole period of 3 years to date from 8 August 2007 and to expire on 7 August 2010 on which date the applicant will be eligible for release on parole. The total term is one of 5 years which will expire on 7 August 2012. **********

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