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2
Court of Criminal Appeal 2 April 2009

Dionnet v R

[2009] NSWCCA 85

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT (X2) WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Dionnet v R [2009] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 2 April 2009
Judges: McClellan CJ at CL, Buddin J, Rothman J

Background

The applicant was convicted by a jury of two counts of sexual intercourse without consent. The offences occurred at a boarding house in Brighton-Le-Sands in February 2005, where the applicant entered the room of a female tourist while she slept, assaulted her, and twice compelled her to have sexual intercourse with him. The only issue at trial had been the identity of the offender; the victim's account of events was not contested.

In the District Court, Judge Berman sentenced the applicant to a non-parole period of seven years with a total term of ten years imprisonment on each count, with both sentences to run concurrently. The applicant then sought leave to appeal against sentence in the Court of Criminal Appeal.

The applicant had a history of mental health difficulties, including Post-Traumatic Stress Disorder, severe depression, sleep disturbance, and agoraphobia at the time of the offences. These conditions formed the centrepiece of his appeal.

  • Whether the sentencing judge erred by failing to reduce the sentences on the basis that the applicant's mental health made him an unsuitable vehicle for general deterrence
  • Whether the sentencing judge erred by failing to find, on the balance of probabilities, that the applicant's mental state contributed to the offending
  • Whether the sentences, individually or in totality, were manifestly excessive

Decision

Mental health and general deterrence (Grounds 2 and 3)

The sentencing judge had accepted the established principle that an offender's mental state can be relevant to sentencing in several ways: it may reduce moral culpability if causally connected to the offending, and it may reduce the weight given to general deterrence. However, expert opinion on the applicant's mental state was conflicting and difficult to apply with precision to the circumstances of the offence, which involved planning and purposeful conduct.

The Court of Criminal Appeal found that the sentencing judge had properly engaged with the expert material, including reports from a clinical psychologist and a forensic psychiatrist. The Court accepted that it was open to the sentencing judge to conclude that the mental health evidence did not establish, on the balance of probabilities, a sufficient causal connection between the applicant's conditions and the offending. No error was demonstrated in the approach taken to general deterrence or to the contribution of mental state.

Manifest excess (Ground 1)

The Court noted that the sentencing judge had already extended leniency to the applicant by declining to impose a non-parole period longer than the standard non-parole period, expressly taking into account the applicant's mental state and the circumstances he would face in custody. The judge also imposed fully concurrent sentences for two distinct offences, representing a further reduction from what might otherwise have been imposed.

The Court of Criminal Appeal found the characterisation of the offences' objective seriousness was plainly open to the sentencing judge, and it declined to substitute its own assessment for that of the court below. The overall effective sentence was not found to be manifestly excessive, and this ground was also dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An offender's mental health is relevant to sentencing where it reduces moral culpability (if causally connected to the offence) or diminishes the weight properly given to general deterrence, but neither consequence is automatic: the causal connection must be established on the balance of probabilities.
  • No error was established in the sentencing judge's refusal to find that the applicant's mental state had contributed to the offending, where the expert evidence was uncertain and the offending involved deliberate, purposeful conduct.
  • The assessment of objective seriousness is quintessentially a matter for the sentencing judge, and appellate courts will interfere only on well-established grounds, not simply because a different view might have been taken.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that concurrent sentences on multiple counts, and a non-parole period held at the standard level rather than above it, can each represent meaningful expressions of leniency available to the sentencing court.
  • An applicant's continued denial of guilt and maintenance of a conspiracy theory can properly preclude a positive finding on prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)

Cases
- Mulato v R [2006] NSWCCA 282
- R v Carvahlo [2007] NSWCCA 344
- R v Hemsley [2004] NSWCCA 228
- R v Way (2004) 60 NSWLR 168
- Sayin v R [2008] NSWCCA 307
- Zaharos v R [2008] NSWCCA 336
- House v The King [1936] HCA 40; (1936) 55 CLR 499