New South Wales District Court CITATION: R v Pascal Lucien Francois DIONNET [2008] NSWDC 65 HEARING DATE(S): 24 April 2007 - 7 May 2007 - Trial 22 June 2007, 12 October 2007, 18 October 2007, 1 February 2008, 4 April 2008 JUDGMENT DATE: 4 April 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment with a non-parole period of seven years on each count and a head sentence in each case of ten years imprisonment. CATCHWORDS: Criminal law - sentence - standard non-parole period - sexual intercourse without consent - actual and threatened violence - continued denial - mentally unwell CASES CITED: R v De Simoni (1981) 147 CLR 383 PARTIES: The Crown Pascal Lucien Francois Dionnet FILE NUMBER(S): DC 06/11/0323 COUNSEL: A. Seeto - Crown B. Murphy - Accused SOLICITORS: NSW DPP McGowan Lawyers SENTENCE 1 HIS HONOUR: Pascal Dionnet appears for sentence today on two counts of having had sexual intercourse with a woman without her consent. She was an Italian citizen on a working holiday in Australia. (In this judgment I will refer to her as LT). On 17 February 2005 she went to a boarding house in Brighton-le-Sands. She was allocated Room 10 on the first floor of the boarding house. She later went downstairs to the manager's office where she first came into contact with the offender who would sexually assault her only a few hours later. He came to the manager's office while she was there. She said that he began to stare at her. Later on that same day she saw the offender again. This time she was knocking on the door of room 14 when the offender and a friend of his came up the stairs. Again she noticed the offender staring at her. She went out that evening before returning to the boarding house and going to bed. She believed that she had locked the door. Whether she forgot to lock the door or whether the offender had a means of entering the locked door was never made clear in the trial. In view of the evidence that the lock to Room 10 had been changed only shortly before it was occupied by LT I am inclined to the view that she simply overlooked locking her door that evening. 2 She was asleep in the early hours of 17 February 2005 when she was woken by the feeling of pressure on her mattress. She was then assaulted, I mean in a physical way. At this stage she did not know who it was, although she later came to recognise the person who was assaulting her as the offender. The offender only stopped hitting her when she promised she would not scream. At this stage the offender made his intentions clear. He told LT that he was there for sex and that he had brought condoms. She then complied with his demands and the offender had sex with her twice. Those two occasions representing the two counts of sexual intercourse without consent on which the offender is to be sentenced. 3 After the offender left the room, LT went downstairs to the room occupied by her friend Brenda Andrew where she made immediate complainant of having been raped. 4 The offender denied that he was the man who had done these things but the Crown case against him was particularly strong. At trial there was no dispute that LT had been sexually assaulted in the way she described. The only issue for the jury to decide whether he had been correctly identified. LT said that there was sufficient light in the room, in particular coming through a gap in the curtains, to enable her to recognise the man in her room as being the man she had earlier seen on two occasions. She also said that after she had been sexually assaulted she had the presence of mind to use the light from her mobile phone to illuminate the face of the offender in order to confirm her act of identification. 5 A great deal of attention in the trial was paid to the state of the lighting in the room and the jury were taken on a view to the outside of the boarding house in order to see what lights were in the vicinity and their relationship to Room 10. It was not possible to view the inside of the room because the boarding house was undergoing substantial renovation. 6 This was not a case where the only evidence to identify the offender as being the man who sexually assaulted LT came from LT herself, because there was DNA evidence which the jury no doubt regarded as powerful confirmation of the offender's guilt. DNA was found on the inside back of the singlet worn by LT when she went to bed. The chance that this DNA came from someone other than the offender was extremely remote and there was no reasonable explanation offered by either the Crown expert or the DNA expert called by the offender as to how his DNA could have been innocently transferred to the location of LT's singlet where it was found. On the other hand, given the way LT described the sexual intercourse which took place, finding the offender's DNA on the inside back of her singlet was entirely consistent with the events she described. So the Crown case against the offender was significantly strong with LT's identification of the offender being supported by DNA evidence. The jury's verdict was by no means a surprise. 7 The offender was living in the boarding house, having separated from his wife some years earlier. He seems to have spent a great deal of his time indoors watching videos. He has been seen by a psychologist and a psychiatrist since the jury's verdict. I was also provided today with a report from a clinical psychologist prepared for the Victims Compensation Tribunal after Mr Dionnet was assaulted in 2002. It seems fairly clear that Mr Dionnet suffered at the time of this offence some form of agoraphobia, preferring to stay indoors watching his videos to life outside. Although on the other hand, this was not something that prevented him from going out and socialising, as LT's evidence established. He was quite capable of leaving his room because she first saw him in the manager's office and then later as he was returning to his room, presumably from a night out. 8 The offender was born in France, although spent much of his early life in Greece. He speaks English but was assisted by an interpreter during the course of the trial and was also assisted by an interpreter today. His family still reside in France, his father having passed away some time ago from what the offender has described to others as a virus. He has siblings who live in France, but he has very infrequent contact with them. 9 The offender has been married on two occasions. He has children who he used to see occasionally, although as a result of problems with his eldest child he does not currently have contact with him. He has worked in various unskilled endeavours in the past. He was working as a cook in a kebab shop when he was assaulted, that matter leading to the Victims Compensation Tribunal proceedings to which I made earlier reference. 10 The current mental state of the offender and his state at the time of the offences is very difficult to determine with any precision. The psychologist, Mr Fathers, concluded the offender's mental state affected his culpability for his actions by saying this: "However some clemency is suggested. In my opinion Mr Dionnet had an abnormality of mind of sufficient degree to substantially impair his mental responsibility for his acts." 11 When I first read that I raised with Mr Murphy, counsel for Mr Dionnet, what it was in Mr Fathers' report, in the previous pages, which explained such a conclusion. Mr Murphy, to my recollection, indicated that there was some difficulty in identifying that matter. The case was therefore adjourned once again in order that Mr Fathers' material could be supplemented, if possible. The matter came before me again today but the only thing Mr Murphy was able to present was the report of Dr Borenstein for the Victims Compensation Tribunal Proceedings. It remains, therefore, as I see the material before me, simply a matter of Mr Fathers' opinion, unexplained, that the moral culpability of the offender is diminished because of an abnormality of mind. 12 The psychologist and the psychiatrists who have seen the offender do suggest that there is some problem with his mental state, although it is difficult to determine what that problem is. I prefer the opinion of Dr Allnutt who notes that because the offender denies that he committed these two offences, it is not possible to draw any firm conclusions about any potential relationship between his mental state and the alleged offence, only to state that he reports active symptoms at around that time. Not everyone who is mentally unwell, or who reports symptoms of mental illness, has impaired judgment in the sense that their moral culpability for offences of this kind is reduced. The onus is on the offender to demonstrate that mitigating matter on the balance of probabilities. I am not satisfied that anything in the offender's mental state is such as to diminish his moral culpability for his two offences. However, even if the precise nature of the offender's illness is unclear I am prepared to proceed in the basis that because of his mental state he will do his time in custody harder than would otherwise be the case. Mr Dionnet appears to have some level of thought disorder and this will inhibit communications with others in gaol and, as I have said, will mean that his conditions of custody will be felt harder by him than would otherwise be the case. 13 Each offence has a standard non-parole period of seven years. In an attempt to persuade me not to impose a non-parole period of that level Mr Murphy first submitted that the offences were not planned or organised. Some degree of planning of course has to have gone into these offences. The offender entered into the room occupied by LT. Once there, he began hitting her and only stopped when she agreed to have sex with him. In that sense, the offences were planned. The offender did not find himself in LT's room wanting to have sex with her by accident. However, the degree of planning is not of a terribly high level. It simply required the offender to open the door, unlocked as I have found it to be, and enter. Had the case been one where the offender needed to enter through a locked door using some mechanical means then the level of planning would obviously have been higher. 14 Mr Murphy said that his client does not have a significant record. It is to be noted that there are two assault matters on it, one in 1993 and one in 1999, and then a middle range PCA matter in 2000 as well as driving matters from 2000 to 2002. This is not a record of great significance given the gravity of the offences for which the offender is to be sentenced. 15 The next submission was that Mr Dionnet was unlikely to re-offend and had good prospects of rehabilitation, relying primarily on the offender's age and the fact that he has no prior convictions of this type. I am unable to make a finding that the offender is unlikely to re-offend and has good prospects of rehabilitation. The primary matter preventing that finding being made is of course the offender's continued denial of having committed these two offences. He has reported to the probation and parole officer, the psychologist and the psychiatrists that he is the victim of a criminal conspiracy and that he did not commit these offences. In view of a failure by the offender to acknowledge his wrongdoing there is nothing to suggest that given the same circumstances he would not act in a similar manner again. As I mentioned before, Mr Murphy submitted that this was a case where the offender was not fully aware of the consequences of his actions but for reasons I have given I have rejected that submission. 16 One of the first tasks I have in looking at the standard non-parole period is to consider whether these offences are in the middle of the range of objective seriousness. I am satisfied that in fact they are above that level. It is to be noted that they were preceded by acts of violence. It is to be noted that the offences took place in a room where LT was entitled to feel safe. It is apparent that the offender formed an interest in LT some time before he actually sexually assaulted her and was well aware that she was staying by herself in the room and thus defenceless. I saw both LT and the offender during the course of the trial. LT was much, much smaller than the offender and thus easily overborne. 17 The aggravating factor that the offence involved actual and threatened violence is present in this case. Of course I must not take into account any aggravating circumstance which would involve me breaching the rule in R v De Simoni (1981) 147 CLR 383, but I am able to take into account that these offences only followed actual violence on the part of the offender and then a threat, the threat being in these terms, "I'm going to beat you more, if you scream any more I'm going to beat you more. The offences involved penile/vaginal intercourse which is a particularly hurtful invasion of LT's rights. 18 For those reasons, as I have said, I am satisfied that this offence is, objectively speaking, above the mid range. In view of the offender's current mental state, however, and in view of the circumstances in which he will do his time in custody I have decided to not impose a non-parole period higher than the standard non-parole period set by parliament. I have also decided not to accumulate the sentences. I did give consideration to whether that was appropriate but given the length of the standard non-parole period and given the circumstances of the offender, as a measure of leniency towards him, I will not impose sentences with any level of accumulation. It is agreed that in order to reflect pre-sentence custody the sentences of imprisonment should commence on 30 August 2006. 19 The offender is sentenced to imprisonment. I set a non-parole period of seven years on each count to date from 30 August 2006. They will expire on 29 August 2013, on which day the offender is eligible to be released to parole. I set a head sentence in each case of ten years imprisonment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.