Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Mueller [2015] NSWCCA 292 Hearing dates: 11 November 2015 Date of orders: 11 November 2015 Decision date: 27 November 2015 Before: Ward JA [1] Davies J [2] RS Hulme AJ [3] Decision: Appeal dismissed Catchwords: Indecent assault – offences taken into account – mental disorder – acute psychotic state – sentence not inadequate Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518 DPP v De La Rosa (2010) 79 NSWLR 1 Kentwell v The Queen [2014] 37; 252 CLR 601; 238 A Crim R 134 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Palijan v R [2010] NSWCCA 142 R v Ball [2013] NSWCCA 126 R v Cahill [2015] NSWCCA 53 R v RM [2015] NSWCCA 4 Category: Principal judgment Parties: Regina Peter Mueller Representation: Counsel: Crown: Ms S Dowling SC Respondent: M Smith Solicitors: Director of Public Prosecutions McGirr Lawyers File Number(s): 2013/136171 Publication restriction: No Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 July 2015 Before: Huggett DCJ File Number(s): 2013/136171 Judgment 1. WARD JA: I agree with RS Hulme AJ. 2. DAVIES J: I agree with RS Hulme AJ. 3. RS HULME AJ: The Respondent to this Crown appeal was on 14 July 2015 sentenced by Huggett DCJ in respect of two offences: 1. Aggravated break and enter and commit serious indictable offence, viz an indecent assault. 2. Indecent assault. 1. Taken into account in the sentencing on the first count were two offences on a Form 1, an act of indecency and a further indecent assault. 2. After observing that the Respondent was entitled to a discount of 25% for an early plea, her Honour sentenced him in the case of the first offence to imprisonment for 24 months and in the case of the second offence – against a different victim - to imprisonment for 10 months. She observed that normally the fact of two victims would require some accumulation of the sentences, given the circumstances she thought it appropriate to make the sentences concurrent and again because of the particular circumstances, ordered that those sentences be suspended upon the Respondent entering into bonds to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. One of the terms of the bonds was that the Respondent accept all treatment recommended by Dr Nielssen or other professional person, including but not limited to taking all recommended medication. 3. The appeal came on for hearing on 11 November last when the Court ordered that it be dismissed. These are my reasons for joining in that order. 4. Although all offences were committed on the one evening, they were committed at different premises and the victim of the offence I have numbered 2 was different from the victim of the other three offences. 5. The circumstances of the offences against the person I shall call victim 1 are that at about 6.40am on 27 April 2014 her front doorbell rang and when the door was opened, the Respondent was seen to be standing there. He asked where her husband was and when informed he was at work, the Respondent stepped inside the front door and into the hallway. He had $50 in his hand which he tried to give victim 1. When she asked "what is this for", he attempted to kiss her. She sought to move away and he pushed her with both hands to her chest. Asked, "what are you doing", the Respondent replied "Come on, I know you're interested." Victim 1 then managed to push the Respondent outside and closed a flyscreen door. This conduct was the subject of the first charge taken into account. 6. The Respondent then pulled down his pants and underpants exposing his penis and testicles saying "look at this" and "come on, I need this". This conduct was the subject of the second charge taken into account. 7. Shortly thereafter as victim 1 was about to obtain her keys to lock the screen door, the doorbell again rang. Her young daughter was with her. When victim 1 opened the front door slightly, she observed the Respondent there and that the screen door had been reopened. The Respondent pushed his way back into the hallway, said hello to her daughter and turned back to the victim saying "Well I don't care". He ran his hands down her body over her breasts and towards her waist before pulling her towards him so their bodies were touching. She could feel his erect penis against her own genital area. In the course of fighting the Respondent off, she felt his hands move inside her pyjama top and heard him say "Come on, I need this. Shhh, be quiet, don't wake my wife, I love my wife, be quiet". 8. Victim 1 succeeded in again evicting the Respondent from the premises and shortly thereafter rang the police. The incident following the Respondent's second entry into the premises forms the basis of the first offence for which the Respondent was sentenced. 9. Of relevance is the fact that for some 6 weeks prior to the offences against her, victim 1 and the Respondent lived next door to one another. On the evening before the offences there had been friendly or neighbourly conversation between them as the victim returned from walking her dog. Victim 1 did however note that during this conversation the Respondent, according to the "Agreed Facts", "appeared to be agitated; he was unable to stand still, he appeared to be looking around a lot, and he was moving his mouth around and making a strange noise". 10. About 1½ hours later, the Respondent knocked on the front door of a semi-detached house at Bondi, a dwelling adjoining one which had been owned by the Respondent's father and which the Respondent was in the process of selling. He asked the female who answered the door if she could move a car parked in the driveway of his father's house, asked her whether she could help him with something upstairs and also asked "do you have any Viagra?" 11. A second female was prevailed upon to move the car. She came to the front door where the Respondent grabbed her right breast for 1 or 2 seconds before he was brushed away. Asked "what the fuck did you just do?" the Respondent replied "sorry I'm just stressed trying to sell the house". He then walked to the other side of the street. These events were the subject of the second offence for which the Respondent was sentenced. 12. During the immediately preceding events, the Respondent's wife had made a call to 000 and advised the police that he had been acting in a perhaps bizarre way. He was arrested and whilst being conveyed to a police station made a number of sexually abusive remarks to police. Whilst in custody he removed his clothing. An ambulance was arranged and he was admitted to hospital as an involuntary patient being released from there some 5 days later. In hospital he was diagnosed as in an acutely psychotic state for some days. Later a well-known psychiatrist, Dr Nielssen, opined that the Respondent was labouring under a psychotic episode at the time of the offences. Dr Nielssen's opinion was not challenged and Huggett DCJ accepted it. 13. A Victim Impact Statement from victim 1 and an accompanying psychologist's report are to the effect that in consequence of the assaults on her she has suffered severe psychological consequences, PTSD, has withdrawn from friends, her husband and children and had felt obliged to change her home and job. 14. Turning to the Respondent's subjective circumstances, he was born on 11 January 1962 and his upbringing was marked by alcoholism on the part of his father. He worked as a painting contractor for some 30 years. He married in 1997 and at the time of sentence had twin sons aged 6 or 7. His wife, though now separated, remained supportive of him at the time of sentence. 15. In the period prior to offences, he was consuming up to 40 cups of coffee a day, he barely slept and commenced experiencing paranoid thoughts. He began to believe, inter alia, that his house was wired and that his brother was not his biological brother. 16. The Respondent has one matter on his criminal record having pleaded guilty in 1992 to one count of sexual intercourse without consent for which a sentence of 2 years' imprisonment including a non-parole period of 9 months had been imposed. The Respondent told Dr Nielssen that at that time of his life he had been a binge drinker and the offence arose when, heavily intoxicated, he had forced himself on a girl he met at a night spot. There was no contrary evidence. Her Honour recorded that since 1992 the Respondent had been a positive member of the community and was entitled to a degree of leniency for his good character. 17. The Respondent also informed Dr Nielssen that when younger he had experimented with drugs but that this had ceased when he was in his twenties and his binge drinking had ceased at the time of his earlier imprisonment. Again, there was no contrary evidence. 18. Her Honour assessed the Respondent's prospects of reoffending to be very low and his prospects of rehabilitation excellent. She expressly acknowledged the principle that less weight should be afforded to general deterrence where an offender was suffering from a mental condition at the time of offending. She thought that specific deterrence could be adequately dealt with by the sentence she imposed. 19. The only ground of appeal is that the sentence is manifestly inadequate. The particular matters relied on by the Crown in support of the appeal may be summarised as follows: (i) Her Honour erred in taking the view that "the close temporal connection between Sequences 2 and 5 and Offence 1 is such that the matters on the Form 1 document should not lead to an increase in the sentence otherwise appropriate for Offence 1". (ii) Her Honour erred in concluding that the Respondent was of good character; (iii) Her Honour erred in failing to find that the substantial psychological harm suffered (by victim 1) in consequence of the Respondent's offence was an aggravating factor (iv) Her Honour erred in a conclusion that considering emotional harm would amount to double counting; (v) Her Honour erred in failing to have regard to the objective gravity of the offending and considerations of general deterrence 1. As a matter of convenience I have referred below to these matters as "Grounds". Ground 1 Her Honour erred in taking the view that "the close temporal connection between Sequences 2 and 5 and Offence 1 is such that the matters on the Form 1 document should not lead to an increase in the sentence otherwise appropriate for Offence 1". 1. Sequences 2 and 5 were the two offences taken into account. 2. The leading authorities as to the significance to be given to offences taken into account are Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. In the first of these the Court observed (at [42]):- 42. The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 1. Although the taking into account further offences may be with a view to increasing the penalty that would otherwise be appropriate, the authorities make it clear that there will be occasions when the taking of offences into account may add little or nothing to the sentence that would otherwise be imposed. Thus in Abbas, Bodiotis, Taleb and Amoun v R, at [22] and [23] the Chief Justice observed that "The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged" and taking offences into account "would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account". (My emphasis) See also Abbas, Bodiotis, Taleb and Amoun v R at [258]. 2. In this case the mental state that inspired or at least substantially contributed to the Respondent's offending provided plenty of justification for the conclusion that personal deterrence required no increase in punishment. Furthermore the same reason that leads to an offender with a mental disorder or abnormality being an inappropriate medium for making an example to others and thus diminishes, perhaps greatly, the weight to be given to general deterrence – see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]; DPP v De La Rosa (2010) 79 NSWLR 1; argues in the same direction so far as retribution is concerned. 3. In the circumstances I am not persuaded that it was not within the legitimate range of her Honour's sentencing discretion to decline to increase the Applicant's sentence because of the offences on the Form 1. While the Crown is correct in submitting that victim 1's rejection of the Respondent's advances the subject of the first indecent assault, placed him on notice prior to his subsequent assault, her Honour was fairly entitled to take the view that the offences on the Form 1 were but incidents of the one course of criminality that culminated in the second indecent assault and merited no increase in punishment. Ground 2 Her Honour erred in concluding that the Respondent was of good character. 1. There is no substance in this ground. The Respondent's activities and offending in and before 1992 meant that he was not of good character then. In the absence of repetition or other misconduct they say nothing about his character in 2014. Her Honour accepted that for the last 20 or so years the Respondent had been a law abiding citizen and a positive member of the community, had voluntarily involved himself in refereeing and coaching touch football and rugby league, had cared for his two children whilst his wife was admitted to hospital with her own mental health issues, and had always been employed and supported his family. There was no evidence that between 1992 and the commission of the subject offences the Respondent had done anything wrong and accordingly her Honour's conclusion as to the Respondent's character was perfectly justified. Grounds 3 and 4 Her Honour erred in failing to find that the substantial psychological harm suffered (by victim 1) in consequence of the Respondent's offence was an aggravating factor. Her Honour erred in a conclusion that considering emotional harm would amount to double counting; 1. It is convenient to consider these grounds together. 2. Her Honour recognised the evidence that suggested the emotional harm suffered by victim 1 was substantial recording that counsel for the Respondent did not disagree with the submission that it went beyond what might be expected for an offence of the type. She recorded a submission that "much of the harm in fact occasioned was because the offender, who was a trusted person, violated the sanctity of [victim 1's] home and assaulted her in the presence of her children." - factors listed in s 21A(2)(ea) and (eb) of the Crimes (Sentencing Procedure) Act as aggravating. Her Honour continued, "as I have referred, these factors have each separately informed the objective gravity of Offence 1 and in my view it would be wrong to double count them in the context of considering emotional harm." 3. Certainly her Honour had referred to the offence having been committed in victim 1's home "where she was entitled to feel safe and secure" and to the Respondent breaching the trust victim 1 had in him. To that extent her Honour was correct in seeking to avoid double counting. However, she had not previously expressly taken into account the factor of substantial emotional harm – another matter listed in s 21A(2)(g) as aggravating. Such emotional harm was quite a different factor to those that her Honour had mentioned and thus her Honour's statement quoted at the end of the immediately preceding paragraph was erroneous. In fact nowhere does her Honour indicate that she was giving weight to this factor; nor does she provide acceptable reasons for not doing so. 4. Of course, s 21A(5) makes it plain that the presence of an aggravating factor does not necessarily lead to an increase in sentence. However, the harm in this case was such that it certainly argued in that direction and to treat it as her Honour did meant that she erred in both respects the subject of these grounds. Ground 5 Her Honour erred in failing to have regard to the objective gravity of the offending and considerations of general deterrence. 1. In support of this ground, the Crown drew attention to the fact that the assaults on victim 1 had occurred in her home – an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and a place where as Huggett DCJ recognised, the victim was "entitled to feel safe and secure" and that the first offence for which the sentence was imposed was after the Respondent had fair notice that victim 1 was opposed to his advances. 2. In referring to the first offence her Honour remarked on its commission in victim 1's home "where she was entitled to feel safe and secure", that her husband was not at home and that the Respondent knew he was not welcome and that he acted with "persistence and determination" and that the emotional harm suffered by victim 1 was substantial. Her Honour also directed attention specifically to the topic of general deterrence, observing: I am satisfied this is a case where the offender's mental condition at the time of the offending reduces, to a large extent, the need for the sentences to be imposed by this court to reflect considerations of general deterrence, but it does not entirely eliminate this factor. 1. Her Honour also observed that "The offender was a trusted neighbour of [victim 1] and Offence 1 involved a breach of that trust". 2. Except to the extent that may be indicated by the sentence imposed, there is nothing to suggest that her Honour failed to have regard to the objective gravity of the offending. 3. I am unable to conclude that the sentence itself demonstrates the failure of which the Applicant complains. Her Honour was faced with a difficult sentencing exercise with a need to balance the purely objective circumstances against the Respondent's mental state. 4. The authorities make it clear that "general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others" – Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53] although that is not to suggest the topic of general or indeed personal deterrence is to be entirely disregarded – Palijan v R [2010] NSWCCA 142 at 27. However in this case the extent to which the Respondent's mental abnormality contributed to his offending and her Honour's conclusions as to the likelihood of the Respondent re-offending well justified her in taking the stance which she took. Manifest Inadequacy 1. I have said enough to indicate that I would not uphold the submission that the sentence imposed by her Honour was manifestly inadequate. Nevertheless, her error in not giving appropriate consideration to the topic of the substantial emotional harm suffered by victim 1 means that this Court was obliged to exercise the sentencing discretion afresh – see Kentwell v The Queen [2014] 37; 252 CLR 601; 238 A Crim R 134 at [42]. That said, the factors to which I have referred have led me to the same conclusion at which her Honour arrived. 2. In that connection I do not ignore the fact that a suspended sentence is significantly more lenient than a custodial sentence – R v RM [2015] NSWCCA 4 at [139] and there are cases where this Court has regarded a suspended sentence as too lenient – see e.g. R v Ball [2013] NSWCCA 126. Implicitly the Crown suggested that it was only in an exceptional case that a sentence lenient to a wholly exceptional degree can be imposed and quoted R v Cahill [2015] NSWCCA 53 for this conclusion. While I can accept that the sentence imposed on the Respondent might be described as lenient, it is justified by the circumstances and I do not regard it as exceptionally lenient. ********* 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. Decision last updated: 27 November 2015