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. Grounds 2 and 3 13 The applicant tendered a report from a clinical psychologist, Mr Gregory Fathers, dated 12 October 2007, two reports from a forensic psychiatrist Dr Stephen Allnutt, dated 29 and 30 January 2008 respectively as well as the report prepared by Mr Borenstein to which I referred earlier. Upon the basis of that material, counsel who appeared for the applicant at the sentence hearing, submitted that his Honour should find that the applicant was not fully aware of the consequences of his actions by reason of the applicant's mental condition: s 21A(3)(i) Crimes (Sentencing Procedure) Act, 1999. In making that submission counsel relied primarily on an opinion expressed by Mr Fathers. 14 The sentencing judge accepted, in accordance with well-established authority, that an offender's mental state may have relevance to the sentencing task in several ways. For example, where it is causally related to the offence, the offender's moral culpability may be reduced. It may also reduce the weight to be given to general deterrence: see generally R v Hemsley [2004] NSWCCA 228. 15 It was in that context that the sentencing judge made the following finding: 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 [applicant'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. When I first read that I raised with….counsel for [the applicant], what it was in Mr Fathers' report, in the previous pages, which explained such a conclusion. [Counsel], 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 [counsel] was able to present was the report of Mr 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. 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. 16 It was contended on behalf of the applicant that the sentencing judge erred in reaching the conclusion to which I have just referred. However, the only direct evidence which could have established the necessary causal link arose from the opinion expressed by Mr Fathers. His Honour was quite entitled to reject that opinion given that no basis was advanced by the author to justify it. Nor was any submission advanced in this court to suggest that his Honour had erred in that respect. 17 What was submitted however was that there was other material to which Dr Allnutt referred in his reports, other than the extract to which the sentencing judge referred, which was capable of bearing upon this issue. An examination of those reports makes it clear that the highest Dr Allnutt could put the matter was that the applicant reported active symptoms of psychosis and anxiety at about the relevant time. The other reports which were in evidence simply did not address the present issue. Counsel also sought to rely upon evidence given at the trial concerning the applicant's conduct on the day of the incident. Reference was made to evidence given by the complainant that the applicant stared at her on two occasions and to other evidence that after the assaults took place, rather than running away, the applicant simply returned to his room and went to sleep. It suffices to say in disposing of that submission, that those features of the case apparently did not commend themselves to either the sentencing judge or to counsel then appearing for the applicant because neither of them made any reference to them. 18 It is to be noted that nearly a year elapsed between the jury returning its verdicts and the applicant being sentenced. That delay was occasioned solely by adjournments sought on behalf of the applicant to obtain reports concerning his mental condition. Notwithstanding the latitude which was extended to the applicant, no independent material was adduced which may have shed light upon the applicant's mental condition at, or about the time, of these offences. In summary, given the state of the evidence, it was well open to the sentencing judge to arrive at the conclusion which he reached and no error in that respect has been demonstrated. 19 So far as ground 2 is concerned, it is instructive to refer to this court's decision in Zaharos v R [2008] NSWCCA 336 in which McClellan CJ at CL, with whom Grove and Howie JJ agreed, said: Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36]. (par 14) 20 There is nothing in the evidence to suggest that the applicant did not understand what he was doing or that he did not understand the gravity of his actions. 21 In Sayin v R [2008] NSWCCA 307, Grove J, with whom McClellan CJ at CL and Howie J agreed, said: Although there may not be a link between a mental illness harboured by an offender, if such a conditions exists it may be that the offender is unsuitable as a vehicle to exhibit general deterrence and if that be the case, logically, the absence or the reduction of the significance of such an element would operate to reduce the assessment otherwise reached: R v Scognamiglio [12991] 56 A Crim R 81. However, it does not inevitably follow that the existence of some mental illness must result in a lesser sentence: Courtney v R [2007] A Crim R 371. (pars 24-5) 22 Although those remarks are apposite to the present case, the sentencing judge did nevertheless indicate that he was prepared to have regard to the applicant's mental condition in order to ameliorate the sentence. In that context his Honour said: However, even if the precise nature of the offender's illness is unclear I am prepared to proceed on the basis that because of his mental state he will do his time in custody harder than would otherwise be the case. [The applicant] 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 that would otherwise be the case. 23 In the circumstances, I would reject both Grounds 2 and 3. Ground 1: The sentences and sentence in its totality are/is manifestly excessive 24 As I have said, this was an offence in relation to which a standard non-parole period of 7 years applied. The standard non-parole period applies to an offence which is characterised as being in the middle of the range of objective seriousness: see generally R v Way (2004) 60 NSWLR 168. His Honour determined that the offences were above the mid-range. The sentencing judge explained his reasons for arriving at that conclusion in the following terms: 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 [the victim] was entitled to feel safe. It is apparent that the offender formed an interest in [the victim] 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 [the victim] and the offender during the course of the trial. [The victim] was much, much smaller than the offender and thus easily overborne. 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 De Simoni, 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 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 [the victim's] rights." 25 The submission that the overall sentence was manifestly excessive was founded upon the contention that the offences "fell below the middle of the range of seriousness of offences of this type". In other words, it was contended that the sentencing judge erred in his assessment of the objective seriousness of the offence. 26 The only matter that was advanced in support of the submission that his Honour had erred in his characterisation of the objective gravity of the offence was a reference to the decision of this court in R v Carvahlo [2007] NSWCCA 344. In that case there was a finding by the sentencing judge that the offending behaviour fell just below the mid-range in circumstances which were said to be comparable to the present case. With all respect to the submission, that can hardly provide an adequate basis for concluding that the finding in the present case is vitiated by error. 27 In Mulato v R [2006] NSWCCA 282, Spigelman CJ observed: Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour . (at par 37) 28 Simpson J said: The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. (at par 46) 29 Notwithstanding his characterisation of the objective gravity of the offences, his Honour nevertheless decided against imposing a longer non-parole period than the standard non-parole period fixed by parliament. His Honour did so "in view of the [applicant's] mental state…and in view of the circumstances in which he will do his time in custody". His Honour then extended a further measure of leniency to the applicant by imposing wholly concurrent sentences upon him even though there were two separate and distinct offences of non-consensual sexual intercourse. 30 In my view, it was well open to the sentencing judge to make the assessment which is now impugned. Moreover, I am not persuaded that the overall effective sentence was manifestly excessive. In the circumstances, Ground 1 should be rejected. 31 I propose that leave to appeal be granted but that the appeal be dismissed. 32 ROTHMAN J: I agree with Buddin J. ********** 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. 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