The Queen v Mitchell, Terrence James [1997] FCA 1387

FEDERAL COURT OF AUSTRALIA Criminal Law - Crown appeal against sentence - conviction for inflicting actual bodily harm with intent to engage in sexual intercourse - whether sentence manifestly inadequate - whether Court should disturb the sentence - principles applying to a Crown appeal against sentence Crimes Act 1900 (ACT), ss 92B(1), 556B(1), 556C(4) Federal Court of Australia Act 1976 (Cth), s 24 Parole Act 1976 (ACT), ss 20, 21, 22

R V Boudelah (1991) 28 FCR 176 at 185 applied R v Tait (1979) 46 FLR 386 at 388 applied R v Osenkowski (1982) 30 SASR 212 at 212-213 applied The Queen v Drewett (1983) SASR 344 at 345-346 applied Matter No. ACT G86 of 1997 THE QUEEN v TERRENCE JAMES MITCHELL WILCOX, VON DOUSSA & MADGWICK JJ ADELAIDE (heard in Sydney) 9 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G86 of 1997

BETWEEN: THE QUEEN

Applicant

AND: TERRENCE JAMES MITCHELL

Respondent

JUDGES: WILCOX, VON DOUSSA & MADGWICK JJ

DATE OF ORDER: 9 december 1997

WHERE MADE: adelaide (heard in SYDNEY)

THE COURT ORDERS THAT: The appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G86 of 1997

BETWEEN: THE QUEEN

Applicant

AND: TERRENCE JAMES MITCHELL

Respondent

JUDGES: WILCOX, VON DOUSSA & MADGWICK JJ

DATE: 9 december 1997

PLACE: adelaide (heard in SYDNEY)

REASONS FOR JUDGMENT THE COURT: This is a Crown appeal against sentence. The respondent pleaded not guilty to a charge, contrary to s 92B(1) of the Crimes Act 1900 ACT ("the Crimes Act"), of inflicting actual bodily harm with intent to engage in sexual intercourse. After a trial before judge and jury in the Supreme Court of the Australian Capital Territory, the respondent was convicted. Upon his conviction he was sentenced to a term of three years imprisonment with a direction for his conditional release after six months in custody. The sole ground of appeal is that the sentence was manifestly inadequate. At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed, and said that reasons for that decision would be published at a later date. The reasons of the Court now follow. This appeal is brought pursuant to s 24 of the Federal Court of Australia Act 1976. By s 24(1)(b) of that Act this Court is given jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory, and by definition "judgment" means, inter alia, a sentence: see R v Boudelah (1991) 28 FCR 176 at 185. The maximum penalty prescribed for an offence contrary to s 92B(1) of the Crimes Act is 14 years imprisonment. The direction for the conditional release was made in exercise of the power contained in s 556B(1)(b) of the Crimes Act. Section 556B(1) provides: "556B.(1) Subject to this section, where a person is convicted of an offence against the law of the Territory, the Court by which he or she is convicted may, if it thinks fit, by order: (a) release the person without passing sentence upon him or her upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that: (i) he or she will be of good behaviour for such period as the Court specifies in the order; (ii) he or she will, during the period so specified, comply with such conditions (if any) as the Court thinks fit to specify in the order, which conditions may include: (A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; (B) the condition that the offender will obey all reasonable directions of a person so appointed; and (C) the condition that the offender will comply with an order made pursuant to section 437; and (iii) he or she will pay to the Territory such penalty (if any) as the Court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or (b) sentence the person to a term of imprisonment but direct that the person be released, upon his or her giving a like security to that referred to in the last preceding paragraph, either forthwith or after he or she has served a specified part of the sentence imposed upon him or her." The subsection empowered the Court to release the respondent on a recognizance to be of good behaviour for a period that exceeded the duration of the head sentence of imprisonment. In the present case the respondent's release after serving six months imprisonment was ordered to be conditional upon his entering into a recognizance to be of good behaviour for three years commencing on the date of his release from prison. Section 556B(1) also authorised the Court to specify additional conditions to be complied with during the period of the recognizance. Pursuant to that power the sentencing judge required that the respondent immediately upon his release "... proceed directly to and remain with the Mancare Program and submit to that residential program for between 11 and 12 months, that is, until its conclusion. During that time you are to obey the reasonable directions of the Director of the Mancare Program and you are also to submit to the supervision on probation of the Director of ACT Correctional Services or the nominee of the Director and you are to obey the reasonable directions of the Director of ACT Corrective Services or nominee. It is a further condition of that recognizance, and you will appreciate this is for a period now of approximately three and a half years, you are to abstain from intoxicating liquor and illicit drugs." Assuming that the respondent is willing to enter into the recognizance after serving six months in prison, he will be released forthwith. When released, he will not be on parole on such conditions as the Parole Board of the Australian Capital Territory thinks fit (ss 21 and 22 of the Parole Act 1976 (ACT)). Moreover, his release will not be dependent upon a favourable decision of the Parole Board at that time. Once released, the respondent will not be liable to the revocation of parole for failure to comply with conditions of a parole order. The effect of the order made by the sentencing judge for the conditional release of the respondent excluded the operation of the parole system: see R v Boudelah at 185. If a breach of the conditions of the recognizance occur, the respondent may be brought before the Supreme Court and dealt with pursuant to s 556C(4)(e) which provides: "(e) in a case where the person having been sentenced, was released forthwith or after he or she had served a specified part of the sentence imposed on him or her - commit the person to prison to undergo imprisonment for such term, being a term not exceeding the sentence or the balance of that sentence, as the case requires, or make any order (including an order under subsection 556B(1)) which the Court would, if he or she had then and there been sentenced for the offence of which he or she was originally charged, be empowered to make." Counsel contended that the head sentence and the period of actual incarceration in prison required by the sentence were each manifestly inadequate. Counsel contended that the restrictions on liberty imposed upon a person participating in the residential Mancare Program do not equate with the restrictions, rigours and stigma of actual detention under a custodial sentence. At the date of the commission of the offence, 12 January 1997, the respondent was almost 26 years of age. The victim of the offence was a Korean woman studying in Canberra. The Court was informed from the bar table that she was slightly older than the respondent. The offence occurred at about 3.30 a.m. The victim had attended a nightclub in the City of Canberra with a number of friends. She left to walk to her place of residence nearby. As she was walking on the footpath she heard a male across the road say "you are very beautiful". A little later she was suddenly grabbed from behind and "squeezed" on her neck. On the evidence, the male who called out from across the road must have been the assailant, and the remark indicates a degree of premeditation on the assailant's part. The assailant's hand was placed over the victim's mouth. A struggle then ensued during which the assailant's grip remained tight, and pressure remained on the victim's neck. She says she then "fell down on my tummy, the man was behind on my back, continuously he didn't let it go, his right arm on my neck". She said that she continuously screamed and struggled to get free. She described being grabbed by the hair and having her forehead smashed on the concrete footpath three or four times. After the attack she had abrasions to the forehead consistent with this account. The assailant said "I want to have sex with you", and she felt him pull her pants down, and she felt pressure of his legs upon her after which he began to undo his belt. At this stage she was able to make good her escape. The victim ran back to the nightclub to get assistance. Employees of the club accompanied her back to the scene. They helped her find her glasses, keys, handbag and items of clothing. They noticed bruises, blood and scratches on various parts of her body and observed that her clothes had been ripped. The police were contacted. They arrived shortly afterwards and took into custody the respondent, who was still at the scene. When searched, the respondent was found to have a knife amongst his possessions which he told the police was for his own protection. The knife was not used in the attack, and the victim was unaware that the respondent had a knife. The evidence, including photographs, established that the victim had grazes and bruises on the centre of her forehead, on the right side of her neck, on her right elbow and her upper back. There were also grazes and bruising to her legs and feet. In a victim impact statement, the victim said that "this man changed my life ... I thought I was going to be dead. I feared the worst because I can't communicate well." She had only been in Australia for about three months. Evidence at trial suggested that the respondent was considerably intoxicated at the time of the offence, and he was at times incoherent in his speech and disoriented as to his true whereabouts. However, he was able to communicate with the police when they conducted an interview with him. Acting on advice after speaking with a solicitor he declined to participate in a line-up or provide hair or body samples. Throughout the interview he repeatedly denied that he had been the offender. The ground upon which the respondent defended the charge at trial was that of identity. He maintained his denial that he was the offender. At one point following the committal proceedings, the respondent indicated that he would plead guilty, but later withdrew that plea. It will be necessary to return to the reasons advanced by him for the withdrawal of that plea. As the respondent maintained his innocence it was necessary for the victim on two occasions, at the committal and at trial, to give evidence. The respondent is entitled to no credit for having saved the victim from the stress and humiliation of giving evidence by pleading guilty. The pre-sentence report available to the sentencing judge indicated that the respondent had experienced a difficult upbringing, initially in a home dominated by an extremely violent alcoholic father, and later, when his mother remarried, he did not get on with his stepfather. He left home at the age of 17 years. The respondent had a number of prior convictions which were proved by the production of a computer generated report of criminal matters from the Australian Federal Police. The report gave the following information about the respondent's record as an adult: Date of conviction Offence Result 4 May 1990 Assault police Conviction, released on entering recognizance, $200 TBGB 2 years 4 January 1991 Assault police Fined $500 Offensive language Fined $200 Hinder police Fined $150