R v Mitchell

His Honour concluded that the particular sexual assault offence was toward the top of the seriousness of its kind, even though he was not prepared to find that it was premeditated. 20 In respect of the relevance of the fact that the applicant had pleaded guilty his Honour stated: "His pleas may be some recognition of his wrongdoing and I am prepared to take them into account on that basis. They may also be some evidence of remorse but I could not be satisfied, even on the balance of probabilities, that this offender is truly remorseful for what he did or that he has a realisation of the extent of the harm that his actions caused. Nor am I satisfied on the balance of probabilities that there are any prospects for rehabilitation. There is simply no evidence to enable me to come to that conclusion. Further I am not convinced on the balance of probabilities that the time that the offender has already spent in custody has had any salutary effect upon him. However, I do accept Mr Cavanagh's submission that whilst the offender's pleas were not entered at the earliest available opportunity, the offender is still entitled to some discount for the utilitarian benefit of them and also to some discount for the fact that the victim has not been put through the ordeal of a further trial." 21 The sentencing judge determined that by reason of the pleas of guilty and the fact that the complainant was spared the necessity to give evidence on another occasion that the applicant was entitled to a discount of 15 per cent. In light of the fact that the applicant did not plead guilty until the day of a second trial, it seems to me that this was a generous finding. 22 The sentencing judge was faced with the situation that he was to impose sentences upon the applicant for two offences for which the applicant had previously been tried, convicted and sentenced but where those convictions and sentences had been quashed on appeal. The normal convention that applies in such a situation is that the sentence to be imposed upon an offender following a retrial after a successful appeal should not ordinarily be greater than that imposed by the original sentencing judge. The policy considerations underlying that convention and the principles operating in respect of it have been recently considered by this court in R v Merritt [2000] NSWCCA 365. It is enough for present purposes to indicate that the applicant would have been entitled to expect that, had he gone to trial for the offences for which he had originally been tried, that is kidnapping, sexual intercourse without consent and assault, and had he been again convicted of those offences, he would have received no more than the sentence imposed initially upon him. There had been no Crown appeal in respect of those sentences and it is difficult to see how the second sentencing judge would have been entitled to increase them. 23 However, the result of the exercise of his Honour's sentencing discretion is that the applicant, notwithstanding that he was to be sentenced for only two offences, received the same sentence that had been imposed upon him following the first trial less the discount for the pleas of guilty. Yet the offence of kidnapping for which he was originally sentenced carried a maximum sentence of 20 years imprisonment unless the court was satisfied that the victim was liberated "without having sustained any substantial injury". In the event of a court being so satisfied the maximum penalty was 14 years. Today we have been presented with the sentencing remarks of his Honour Judge Mitchelmore, the original sentencing judge, and a ruling made by him in relation to the maximum penalty to be applicable on the charge of kidnapping. His Honour determined that in light of the injury suffered by the complainant during the course of the assaults upon her, the maximum penalty was 20 years. 24 In my opinion the applicant's complaint is made good and the trial judge erred in determining that the sentence for the offences for which the applicant pleaded guilty should be the same as that originally imposed upon him for the kidnapping less the discount for the plea. The applicant was entitled to have taken into account that the maximum penalty for the most serious offence for which he was to be sentenced was 14 years imprisonment and not 20 years imprisonment as would have been the case had he been sentenced for kidnapping. He was also entitled to have taken into account that the complainant was not detained and that there were no physical injuries inflicted upon her. The totality of the criminality involved was less in the offences to which he pleaded guilty and the sentence was required to reflect that fact. Therefore, the sentencing of the applicant miscarried and this Court must redetermine the appropriate sentence. His Honour Judge Mitchelmore imposed a sentence of 3 years fixed term in respect of the sexual intercourse offence. It has been conceded by counsel appearing for the applicant, Mr Hamill, that the sentencing discretion of Judge Mitchelmore miscarried on that occasion as his Honour did not appear to comply with the dictates of the High Court in Pearce v The Queen (1998) 194 CLR 610. As a consequence Mr Hamill, quite properly, conceded that it would not be open to this Court to impose the same sentence upon the applicant as had Judge Mitchelmore in respect of the offences to which he pleaded guilty before Judge Coolahan and that the applicant would have had no realistic expectation that those sentences would be re-applied. 25 However, the offences to which the applicant pleaded guilty were serious and the sentence to be imposed has to be one that will act as a deterrent both to the applicant and others. His Honour's description of the assault as being a violent and manual rape of the complainant was appropriate. As his Honour rightly recognised, persons such as the complainant are entitled to the protection of the criminal law. They are in a vulnerable position to acts of violence such as that committed by the applicant. Although the kidnapping was an aggravating feature of the applicant's course of conduct toward the complainant and involved a measure of punishment by reasons of the injuries suffered by the complainant, in light of the actual violence involved in the sexual assault offence, the reduction in the sentence reflected the absence of that aggravating feature inherent in the kidnapping offence cannot be very substantial. 26 Although it was argued that his Honour should have found special circumstances, there is no merit in that submission. The simple fact that the original sentencing judge was persuaded to make that finding on the material before him, does not lead to a conclusion that Judge Coolahan was required to find the same way. I cannot for myself see anything that would justify a reduction in the otherwise appropriate non-parole period. This is even taking into account the material contained in an affidavit placed before the Court as to the self-improvement activities conducted by the applicant while he has been in custody. 27 I propose that the following orders be made. The application for leave to appeal be granted and the appeal allowed. The sentence for the first offence on the indictment is to be quashed and in lieu the applicant should be sentenced to imprisonment for 4 years 6 months to date from 31 March 2000 with a non-parole period of 3 years and 3 months to expire on 30 June 2003, the date upon which the applicant is eligible to be released to parole. 28 WOOD CJ AT CL: I agree. The order of the court will be as proposed by Justice Howie. **********

At a glance

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Before

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Judgment (9 paragraphs)

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Cases Cited (2)