Dionnet v R [2009] NSWCCA 85

New South Wales Court of Criminal Appeal

CITATION: Dionnet v R [2009] NSWCCA 85

HEARING DATE(S): 27 March 2009

JUDGMENT DATE: 2 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Rothman J at 32

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal Law - appeal against sentence - sexual intercourse without consent (x2) - significance of applicant's mental condition - whether sentences manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act, 1999

CATEGORY: Principal judgment

Mulato v R [2006] NSWCCA 282 R v Carvahlo [2007] NSWCCA 344 CASES CITED : 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

PARTIES: Pascal Francois Lucien Dionnet (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2006/15338

COUNSEL: L McSpedden (Applicant) N Noman (Respondent)

SOLICITORS: Francis McGowan (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0323

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 4 April 2008

IN THE COURT OF CRIMINAL APPEAL 2006/15338

McCLELLAN CJ at CL BUDDIN J ROTHMAN J

THURSDAY 2 APRIL 2009 PASCAL FRANCOIS LUCIEN DIONNET v R Judgment 1 McCLELLAN CJ at CL: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his conviction by a jury of two counts of sexual intercourse without consent. The maximum penalty for each of those offences is imprisonment for 14 years and a standard non-parole period of 7 years is applicable to the offence. In respect of each count, the applicant was sentenced to a non-parole period of 7 years with a total term of 10 years imprisonment. The sentences were ordered to be served concurrently. 3 The only issue at trial was the identity of the offender and accordingly there was no challenge to the victim's account of the offences. There is no appeal against conviction. In those circumstances, the facts upon which the applicant was sentenced can be briefly stated. The victim is an Italian citizen who, at the time, was on a working holiday in Australia. On the day in question, she checked into a boarding house in Brighton-Le-Sands where she was allocated room 10 which was on the first floor. Some time later she went downstairs to the manager's office. The applicant came into the office whilst she was there and began to stare at her. Later still she saw the applicant again whilst she was knocking on the door to Room 14 (where she had gone to speak to a fellow traveller). On this occasion he was coming up the stairs with a friend. She noticed that he was again staring at her. 4 The victim went out that evening. Upon her return to the boarding house she went to bed. She believed that she had locked the door to her room but the sentencing judge said that he "was inclined to the view that she simply overlooked locking her door that evening". 5 The victim was awoken from her sleep when she felt pressure on her mattress. She was then assaulted by the applicant who punched her in the area of her temple. He only stopped hitting her when she promised that she would not scream. The applicant made his intentions clear by telling the victim that he was there to have sex with her and that he had brought condoms with him for that purpose. Out of fear the victim complied with his demands. After first requiring her to remove a tampon, the applicant then had sexual intercourse with her on two occasions. When the applicant departed, the victim went to a room occupied by a friend of hers and immediately complained to her of having been raped. 6 Although as I have said the applicant denied being the offender, the sentencing judge described the Crown case against him as being "particularly strong". The victim gave evidence that there was sufficient lighting in the room to enable her to recognise her assailant as being the man she had seen earlier that day on two separate occasions. She was also able to subsequently identify him from a photograph. Furthermore, as the sentencing judge observed, the victim "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". There was also evidence that DNA, consistent with that of the applicant, was found inside the back of the singlet which the victim had worn when she went to bed. The applicant was living in the boarding house at the time having separated from his wife some years earlier. 7 The applicant was born on 1 March 1964. He was aged 40 when the offence occurred on 17 February 2005. He was born in France but spent much of his life in Greece where he met his first wife. His family still resides in France, although his father passed away in the late 1990s. He has only infrequent contact with his mother and siblings who remain in France. They are apparently unaware that he is in custody. 8 The applicant who came to Australia in 1990 has been married twice. He has two children, with one of whom he currently has no contact at all, and the other whom he sees only occasionally. The applicant has been employed in a variety of positions, although he has mainly worked in unskilled jobs in restaurants and for a demolition firm. There was evidence that he was the victim of an assault whilst he was working as a chef in a kebab shop in 2002. As a result of that incident, he was diagnosed as having severe depression and as suffering from sleep disturbance. A report, dated 26 November 2002, was prepared by a clinical psychologist, Mr Sam Borenstein in support of a claim by the applicant to the Victims Compensation Tribunal. He diagnosed the applicant as having symptoms consistent with Post-Traumatic Stress Disorder for which he was given medication. At the time of the offence, the applicant was suffering from some form of agrophobia, as a result of which he spent much of his time indoors watching videos. 9 The main issue which arose during the course of the sentence proceedings related to the state of the applicant's mental health, a matter to which I shall return when considering the Grounds of Appeal. 10 The sentencing judge accepted a submission made by counsel, then appearing for the applicant, that the degree of planning was "not of a terribly high level". His Honour also accepted that his prior criminal record, which consisted of two convictions for assault and various driving matters, was not of any great significance. His Honour indicated however that he was unable to make a finding that the applicant had good prospects of rehabilitation because he continued to deny that he had committed the offences of which he had been convicted. Indeed, he maintained that he was the victim of a police conspiracy. 11 The applicant relies upon the following Grounds of Appeal: 1 The sentences and sentence in its totality are/is manifestly excessive; 2 His Honour erred in failing to discount the sentences on the basis that the mental health of the appellant rendered him an unsuitable vehicle for a sentence of general deterrence; 3 His Honour erred in failing to find that on the balance of probabilities the mental state of the appellant contributed to his offending. 12 It is convenient to defer consideration of Ground 1 until later. I will also, as counsel for the applicant did, consider Grounds 2 and 3 together.