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Court of Criminal Appeal 14 April 2009

Mitten v R

[2009] NSWCCA 103

Sexual offences
SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT FORM 1 MATTERS OFFENCE COMMITTED WHILST ON BAIL

Citation: Mitten v R [2009] NSWCCA 103
Court: New South Wales Court of Criminal Appeal
Date: 14 April 2009
Judge(s): Grove J, Howie J, Buddin J (all agreeing)

Background

The applicant pleaded guilty in the Local Court to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, and requested that four additional offences be taken into account on a Form 1 (a procedural mechanism allowing related offences to be acknowledged at sentencing without being separately punished). Those Form 1 matters included an indecent assault, resisting arrest, and possession of small quantities of cocaine and LSD.

The principal offence occurred in July 2007, when the applicant approached a 21-year-old woman he had never met at a service station, pushed her against a wall, bit her neck, and digitally penetrated her vagina. The assault took place in public and in the presence of her friends. The applicant was on bail at the time for the earlier indecent assault, which had occurred roughly two months prior.

In the District Court, Black DCJ sentenced the applicant to a non-parole period of 3 years and 9 months, with a total term of 5 years, commencing 8 August 2007. The applicant sought an extension of time to appeal that sentence, arguing the sentencing judge had erred in assessing objective seriousness and had failed to properly address special circumstances.

  • Whether the sentencing judge correctly assessed the objective seriousness of the principal offence.
  • Whether the sentencing judge properly considered and applied the concept of "special circumstances," which allows a court to depart from the standard ratio between non-parole period and total sentence where justified.
  • Whether the non-parole period imposed was excessive in light of those considerations.

Decision

The Court of Criminal Appeal accepted that the principal sexual assault offence fell below the midpoint of objective seriousness for offences under s 61I. Both the prosecution and defence had acknowledged at the original sentencing that the degree of penetration was slight and the incident was brief. The Court agreed with that characterisation, while noting the offence was nonetheless particularly humiliating for the victim, having occurred in a public place in front of her friends.

On the question of special circumstances, the Court found that the sentencing judge had not adequately addressed this issue. Special circumstances can justify setting a longer-than-usual gap between the non-parole period and the total sentence, typically to allow more time for supervision on parole. Given the applicant's identified rehabilitation needs, including longstanding drug and alcohol issues and a diagnosis of paranoid personality disorder, the Court considered a finding of special circumstances was warranted.

While the Court reduced the non-parole period to give effect to that finding, it did not disturb the overall five-year total sentence. The Court noted that the escalating pattern of offending, with a more serious sexual offence committed while on bail for an earlier sexual offence, justified maintaining robust deterrence, both general and personal, in the overall sentence.

Orders Made

  • Extension of time to apply for leave to appeal granted.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In substitution, the applicant sentenced to a non-parole period of 3 years commencing 8 August 2007 and expiring 7 August 2010, with a total term of 5 years expiring 7 August 2012 (taking into account Form 1 matters).

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sexual assault offence under s 61I can fall into the lower range of objective seriousness where penetration is slight and the incident is brief, even though its public nature and impact on the victim remain relevant to the overall assessment.
  • A failure to properly address special circumstances at sentencing can constitute a sentencing error justifying appellate intervention, particularly where the offender has demonstrated significant rehabilitation needs requiring structured supervision on parole.
  • Where multiple offences disclose an escalating pattern of sexual offending, including commission of a more serious offence while on bail for an earlier one, the need for general and personal deterrence remains a substantial sentencing consideration even if individual offences are assessed as being at the lower end of the range.
  • Reducing the non-parole period to reflect special circumstances does not necessarily require the total sentence to be disturbed; the Court maintained the five-year total while adjusting the internal proportion.
  • Form 1 matters, though not separately punished, are taken into account in calibrating the overall sentence, and their character (including whether they reveal a pattern of similar conduct) is relevant to the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)

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