New South Wales Court of Criminal Appeal CITATION : R v Mitchell [2002] NSWCCA 380 FILE NUMBER(S) : CCA 60711/2001 HEARING DATE(S) : 10/09/02 JUDGMENT DATE : 10 September 2002 PARTIES : Regina v Steven Joseph Mitchell JUDGMENT OF : Wood CJ at CL at 1, 28; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0224 LOWER COURT JUDICIAL Coolahan DCJ OFFICER : COUNSEL : L M B Lamprati - Crown P Hamill - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant CATCHWORDS : Criminal Law and Procedure - Sentence - After successful appeal against conviction on three offences, appellant pleaded guilty to two offences - whether resulting sentence excessive in light of reduced criminality. LEGISLATION CITED : Crimes Act 1900 - ss 61, 61l CASES CITED: R v Merritt [2000] NSWCCA 365 Pearce v The Queen (1998) 194 CLR 610 DECISION : See paragraph 27. IN THE COURT OF CRIMINAL APPEAL 60711/2001 WOOD CJ AT CL HOWIE J TUESDAY 10 SEPTEMBER 2002 REGINA V STEVEN JOSEPH MITCHELL Judgment 1 WOOD CJ AT CL: I will ask Justice Howie to give the first judgment. 2 HOWIE J: On 15 October 2001 the applicant was called for trial before Judge Coolahan in the District Court at Newcastle. He was arraigned before his Honour on an indictment containing two counts: the first a sexual assault contrary to s 61I of the Crimes Act, the second a common assault contrary to s 61 of that Act. The applicant pleaded guilty to both counts. The maximum penalty prescribed for the first offence was 14 years imprisonment and for the second 2 years imprisonment. Having accepted the pleas of guilty, his Honour remanded the applicant for sentence on 4 October 2001. 3 On 5 October the sentencing of the applicant proceeded with the Crown tendering an agreed statement of facts, the antecedents of the applicant and a Victim Impact Statement. No evidence was called or presented on behalf of the applicant. The matter was then adjourned to 15 October. On that date the applicant was sentenced as follows: count 1 - imprisonment for 5½ years from 31 March 2000 with a non-parole period of 4 years 1 month and 14 days; count 2 – imprisonment for a fixed term of 6 months, that sentence commencing on 31 March 2000 and expiring on 30 September 2000. The sentencing judge directed that the applicant be eligible for release to parole on 13 April 2004. 4 It is necessary to set out briefly the history of the matter before turning to the remarks made by the sentencing judge when imposing those sentences. The offences to which the applicant pleaded guilty were committed on 10 April 1998. The applicant was arrested on 9 June of that year while he was in custody serving sentences that had earlier been imposed upon him by the Local Court. Those sentences expired on 13 September 1998 and on 29 October the applicant was released to bail on the matters for which he had been arrested in June. 5 On 4 March 1999, following a trial in the District Court, the applicant was convicted of three offences, being kidnapping, sexual assault and common assault. He was sentenced as follows: for the offence of kidnapping, imprisonment for 6½ years with a minimum term of 4½ years; for the sexual assault, a concurrent fixed term of 3 years imprisonment, and for the common assault a concurrent fixed term of 6 months imprisonment. 6 The applicant appealed against these convictions and sentences and on 5 June 2000 this Court allowed the appeal, quashed the convictions and sentences, and ordered a re-trial. On 15 June the applicant was granted bail and was released from custody on 20 June. 7 On 29 November 2000 the applicant failed to appear at his trial in the Newcastle District Court and a bench warrant was issued. The applicant was apprehended on 29 July 2001 and, thereafter, was remanded in custody until sentenced by Judge Coolahan. 8 It is clear that the indictment presented on 17 September was a result of a charge bargain between the Crown and the defence whereby the applicant agreed to plead guilty to the offences for which he was arraigned and the Crown agreed to proceed no further on the charge of kidnapping. There is little doubt that the applicant would have reasonably expected that the outcome of that agreement would have been a reduction in the sentence originally imposed upon him both because he would receive some discount for pleading guilty and because, what appeared to be the most serious offence, was no longer being pressed by the Crown. 9 However, Judge Coolahan determined that, notwithstanding that the applicant was no longer to be sentenced for the offence of kidnapping, the sentence, which had originally been imposed for that offence, was an appropriate sentence for the sexual assault offence. Therefore, his Honour re-imposed that sentence less a discount by reason of the applicant's pleas of guilty. The nub of the applicant's complaint in respect of the sentence imposed by Judge Coolahan is that it is manifestly excessive in light of the reduced criminality reflected in the offences for which he was then being sentenced. 10 As I have already indicated, the material available to his Honour for the purposes of determining the appropriate sentence to impose upon the applicant was extremely limited. The factual basis upon which that sentence was to be assessed was contained in a "Statement of Agreed Facts" signed by the Crown Prosecutor. The only other material placed before the sentencing court was the applicant's antecedent history and a Victim Impact Statement. 11 It is unnecessary for the purposes of determining the present application to detail the facts placed before his Honour. They can be summarised briefly as follows. On 9 April 1998 the complainant was working as a sex worker on the side of Maitland Road, Islington. The applicant pulled alongside her in his motor vehicle and inquired as to the price of the various services that she was offering. After he was told that it would cost $80 for half an hour with her, the applicant agreed and invited the complainant to enter into his motor vehicle. The applicant and the complainant then proceeded to a bank where the applicant withdrew $100 from an ATM machine. He gave the complainant $100 and accepted only $10 in change, in order to compensate her for the delay in having to attend at the bank. 12 The two then travelled to a truck stop at Carrington and entered the back seat of the motor vehicle where they engaged in consensual sexual activity for a time. However, a dispute arose as to whether the applicant had received his money's worth, the result of which was that the applicant forced the complainant to fellate him. However, no charge related to this allegation. The agreed statement of facts contained other allegations made by the complainant that were not reflected in any charge before the court and had limited, if any, relevance to the sentence to be imposed. These included a further act of fellatio and repeated, but unsuccessful, attempts by the applicant to have penile/vaginal intercourse with the complainant. 13 The first count on the indictment to which the applicant pleaded guilty involved an allegation that during the course of his assault upon her, he penetrated the complainant's vagina with his whole hand and forcefully screwed his fingers around in a circular motion. The complainant said "Don't do that you are really hurting me" and the applicant answered "Shut up bitch". The statement of facts alleged that further non-consensual sexual activity continued for a further half an hour. During this time the complainant struggled with the applicant and tried to pacify him. The applicant demanded his money be returned and the complainant complied. 14 The second count arose after the complainant told the applicant that she wanted to go to the toilet and the applicant allowed her to leave the motor vehicle. While the applicant was relieving himself, the complainant ran to the front of the motor vehicle and commenced to scream for help. The applicant then tackled her from behind and she fell to the ground. It was alleged that the applicant punched her to the face connecting with the left hand side near her nose and upper lip. The applicant then grabbed the complainant by the hair and dragged her back to the car. 15 After the applicant had forced the complainant back into the vehicle, he threatened to shoot her or slit her throat. At one stage, after having driven the car for about 15 to 20 minutes, he stopped and forced the complainant to walk for about 10 minutes while blindfolded. When the blindfold was removed, the two walked to a service station and a taxi was called. Eventually the complainant was taken by taxi to Hamilton. After they had alighted from the taxi, the applicant returned $20 to the complainant and allowed her to leave. The complainant went to her brother's home and told him of what had occurred. When the applicant was arrested some weeks later, he denied any knowledge of the offences. 16 The Victim Impact Statement, which was placed before the sentencing judge, indicated that, as a result of the offences committed by the applicant, the complainant was suffering from a chronic post-traumatic stress disorder. The report stated that the complainant had been traumatised by the offence and was experiencing significant sleep, mood and appetite disturbances, nightmares and flashbacks. She was also clinically depressed. The report indicated that prognosis for complete recovery was poor but it might be expected that there would be some improvement in her symptoms if she could be made to feel safe. 17 There was little subjective material placed before the sentencing judge in respect of the applicant. The antecedents report indicated that he was born on 23 July 1967. He was therefore aged 35 at the time of sentence. He has a criminal record commencing in 1977 in the Children's Court when he was admonished and discharged in respect of an offence of malicious injury. Thereafter, he had a number of appearances in the Children's Court for offences of dishonesty until 1986. In February 1988 he was placed on a good behaviour bond in the Newcastle Local Court for an offence of attempting to steal. From 1989 he had numerous appearances in the Local Court for offences of assault, dishonesty and street offences. In 1992 he was sentenced to a fixed term of 4 months for assault and breaching a domestic violence order. In December 1996 he was before the Belmont Local Court for numerous offences involving dishonesty, driving offences, breaching apprehended violence orders, assault and malicious damage. He was sentenced in all to a fixed term of 6 months imprisonment. In October 1997 he was again before the Local Court for driving offences and an offence of common assault in respect of which he was fined. In June 1998 he was sentenced to 4 months imprisonment for offences involving stealing, assault, malicious damage and driving matters. 18 The applicant's legal representative appearing before Judge Coolahan made submissions from the bar table which included a number of assertions of fact for which there was no evidence in support. For example, the sentencing judge was informed of the following matters: that the applicant had undertaken a number of courses while in custody including a stress and anger management course; his behaviour was due to the effect of alcohol and that the applicant was coming to realise that he had a problem in that regard and wished to rehabilitate himself; that he had a good relationship with his older siblings who were prepared to offer him support upon his eventual release; that the applicant had 5 children aged from 15 years down to 6 years and he had a growing realisation that his criminal activity was depriving those children of assistance by him. 19 In respect of the objective seriousness of the offences committed by the applicant the sentencing judge said in his remarks on sentence: "No statements were tendered except for a victim's impact statement to which I will refer shortly but it is obvious from the above recitation of the facts in this case that the victim must have gone through an horrific experience. She was violently assaulted and manually raped. She was threatened with death on more than one occasion. Like any other member of the community sex workers are entitled to expect from the courts sentences which will deter like-minded sexual predators from committing offences such as those involved here. Like every other person in the community sex workers are not to be regarded as fair game. These offences obviously call for custodial sentences and the first offence calls for a significant full time custodial sentence." 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. ********** 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.