R v Mintern, Neil

[2008] NSWDC 276

CITATION:	R v Mintern, Neil [2008] NSWDC 276
HEARING DATE(S):	07/04/2008
JUDGMENT DATE:	13 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentenced to a Minimum term of 3years and 6 months to date from the 5th October 2007 and to expire on the 4th of April 2011. Balance of term 3 years and 2 months to expire on the 4th of June 2014.
CATCHWORDS:	Criminal Law - sentencing - aggravated sexual intercourse without consent inflict ABH - standard non parol period offence - abducts victim to nearby hall - strikes victim to prevent her from screaming - bites lip and breasts - victim resists - strikes second time - rendered unconscious - penile vaginal penetration - ejulates - both parties effected by alcohol - 23year old male - in defacto relationship - mental health stressors - psycho-sexual profile - high risk of reoffending - hisotyr of prior sexual and physical abuse - history of blurred sexual boundaries - substance abuse issues - little insight although recognises wrongness of acts - plea of guilty - standard non parole period not applied.
LEGISLATION CITED:	Crimes Act
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Gebrail unreported NSWCCA 18/Nov (1994) R v Hartikainen unreported NSWCCA 8/06/93 R v Pay (1999) NSWCCA 40 [7] De Simone v The Queen (1981) 147 CLR 383 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina Neil Mintern
FILE NUMBER(S):	2008/11/0487
COUNSEL:	Crown: A Simpson Defence: Adam Williams

JUDGMENT

1. Men and women engage in sexual activities for a variety of reasons and to satisfy a variety of motives. Lovers and romantics see sexual intercourse as an occasion of giving and receiving from their partner love, bonding and pleasure in a warm sexual intimacy. There are other who are simply participating in sexual activity for their own self centred sexual arousal and satisfaction. The criminal law makes no judgment about such people provided the sexual partner consents. Where, however, there is an absence of consent the criminal law recognises such conduct as violent, antisocial behaviour. Where the intercourse is with a dead or an unconscious body the criminal law recognises such conduct not only as violent, antisocial behaviour but also behaviour touched with alarming depravity as well because the violation of the victim moves beyond the violence of power over a struggling, weaker person to become the violence against an unresisting, inert body.

2. Neil William Mintern on 26 June 2005 at Bourke had sexual intercourse with Margaret Joan Dickson in circumstances where she was unconscious, without her consent, knowing she was not consenting, in circumstances where he maliciously inflicted actual bodily harm upon her that, among other things, contributed to her unconsciousness. Today he is to be held accountable for his criminal conduct in penetrating the unconscious body of Margaret Dickson.

3. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court, committed by this offender, harming the particular victim, he did in her community. See Gladue v The Queen [1999] 1SCR 688 [80].

4. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and the to offender. My fact-finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. A tender of agreed set of facts does not relieve the judge from his/her fact-finding responsibility, it simply limits the material from which those facts may be found. To the extent, if it be the case, that the facts do not reflect the actual events that occurred it must be remembered the Court can only find facts from the evidence placed before it. In this case I have real concerns as to whether the facts, as agreed, accurately reflect the actual events.

5. An unusual feature of this case is the delay between the offending and the offender’s arrest and the subsequent sentencing disposition. That delay, which causes an impact, will need assessing. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

6. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, whether this offence attracts a standard non-parole period and, if so, indeed, the length of the parole period and, finally of course, the ultimate length of the term of overall imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

Facts

7. The agreed facts are in these terms: “The victim Margaret Dickson (twenty­one years old) arrived in Bourke on 15 June 2005 to visit her sister who was having her eighteenth birthday. Whilst at Bourke the victim stayed at a number of friends’ and relatives’ houses. On Friday 24 June the victim saw Neil Mintern (the accused) in the main street. She had known him for nine to ten years and he had gone out with her sister. At this stage they did not talk. Later that night whilst at the Oxley Club with family and friends the accused and the victim were seen to be talking and being friendly. Both were well intoxicated. The accused and the victim left the Oxley Club at about midnight. The accused and the victim were observed by police at about 12.15am on the footpath outside Hawkins Tyres. They appeared well acquainted and in close proximity and actively touching each other. The victim was going to take the accused to see her sister. They made a short stop at Jim Knight’s (a friend) house to see if her sister was there. They were told she was at her auntie’s house. Both proceeded to walk to the auntie’s house.

8. Whilst walking they passed the Girl Guides Hall on Hope Street when the accused put his arms around her shoulder, covered her mouth and proceeded to carry her to the hall. The accused attempted to pull her pants down. The victim told him to stop or she would scream. The accused said “don’t be silly girl” and punched her in the face. The victim then fell back against the wall. The accused proceeded to sit on the stomach area of the victim. She tried to escape the accused. The accused bit her bottom lip and her breasts. The victim forced her fingers into the accused’s face. The accused and victim continued to struggle for a short period of time when the accused hit the victim to the left side of her head. The combination of the alcohol and the hit caused the victim to pass out. After coming to, the victim noticed that she had no trousers or underpants on. She found her trousers and put them on and went back to Jim Knight where she made a complaint that she had been sexually assaulted. Subsequent analysis found the accused’s DNA in the high vaginal area of the victim. The accused was arrested in Orange two and a bit years later on 5 October 2007 and has been bail refused since that date.”

9. The agreed facts postulate that it was a combination of alcohol and the hit that caused the victim to pass out. There is a responsibility on counsel, particularly the Crown, to agree to facts that reflect a true rather than an artificial situation. Immediately before the blow was struck that is associated with the unconsciousness the accused was sitting on the victim’s stomach. No doubt that had some impact on her capacity to breathe. Even so she was trying to escape, she was struggling. She was forcing her fingers into the accused’s face. There is no suggestion in that passage of the agreed facts that the effects of alcohol are of such a high level that she is in a state of near collapse and about to pass out. The plea though has been entered and accepted upon the basis that the accused’s blow to the left hand side of the complainant’s face alone did not render the complainant unconscious, that alcohol also played some part or a part in rendering her unconscious. However, I will not accept that her consumption of alcohol played an equal part or the greater part in rendering her suddenly unconscious.

10. At the time of his offending Mintern was aged nineteen. He had started drinking early on that day and had been drinking the previous night. It would seem that he had been consuming liquor, including spirits, through the day up to the time of his offending.

Objection Criminality
11. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of an offence of a similar kind or of offences of a similar kind. It is in this way that the objective seriousness of the criminality can be evaluated. The objective criminality obviously would have a very important impact upon the overall sentencing outcome.

12. The useful starting point in the assessment of objective criminality in sexual assault cases is to remind the court of part of a judgment of Mahoney JA, a judge of appeal, in R v Gebrail unreported NSWCCA 18/Nov (1994).

As I have indicated every offence of this kind is a serious offence. But to those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious some are more serious than others. In some cases the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than are involved [in other cases]. It is to be understood that in sentencing it is appropriate, indeed in most cases it is necessary, that the sentencing judge form and record his assessment of where on the relevant scale of seriousness this particular offence lies.

14. In 1993 the then Chief Justice, Gleeson CJ, made the point that non-consensual intercourse is an extreme form of violence and one which the community expects the courts to take very seriously ( R v Hartikainen unreported NSWCCA 8 June 1993). Even if no additional violence is administered other than the intercourse (see R v Pay (1999) NSWCCA 40 [7]) unwanted forced intrusion into the privacy, indeed the intimacy, of a complainant’s body and psyche against her will or without her consent by the use of physical power and callous disregard of her wishes or feelings marks the essence of the criminality of these offences.”

15. At the time the offending conduct began, both offender and complainant were walking to an auntie’s house. Earlier there had been some level of intimacy as they were seen in close proximity and actively touching each other. The facts though do not account for the offender’s sudden change in attitude. Was this simply gratuitous and spontaneous administration of violence to a lady who thus far had been content to interact in an intimate way with him? Was he impatient wanting intercourse without pursuing social routines, such as visiting aunties? Or has the complainant made her position plain that she would not be having sex with him? I am unable to speculate. The facts simply disclose a sudden and violent change in attitude without any provocation by the complainant.

16. The violence administered to the complainant was sufficient to render her, together with the alcohol, unconscious. Unconsciousness is usually regarded as grievous bodily harm. I do not aggravate his criminality on account of his contribution to her unconsciousness ( De Simone v The Queen (1981) 147 CLR 383) but I do regard his penetration of her whilst she was unconscious as part of his criminality. When a woman is unconscious she is unable to respond with movement to the intrusion of the penetrating penis even in circumstances where she does not want the penis inside her. There is therefore a greater chance of injury in circumstances where there is penetration in this way. In this case there is no evidence of vaginal injury. The agreed facts are silent upon the precise injuries amounting actual bodily harm. She received two punches to her face, I have inferred bruising and swelling at the impact sites. She was lying on the ground when sexually assaulted and while I have inferred abrasions and bruising resulting from the contact with the ground and the accused’s sexual assault upon her I have not taken these into account as they occurred within the sexual intercourse and do not constitute a form of aggravation under s 61J(2)(a). The level of violence administered by the accused is certainly significant, however there are instances of s 61J(1)offences where the violence administered is both more intense and more prolonged.

17. This is an offence for which there is a standard non-parole period applicable for an offence falling in the mid range of seriousness. The case law establishes that the standard non­parole period applies after trial, all other things being equal (see R v Way (2004) 60 NSWLR 168). The standard non-parole period is ten years. The standard non-parole period would apply to all offences created by s 61J of the Crimes Act. On my reading of the section there are more than a dozen circumstances of aggravation, some more serious than others, created by the section. The circumstances of aggravation relied upon here is the infliction of actual bodily harm before the intercourse, namely the two blows. Thus the actual bodily harm inflicted constituting the circumstance of aggravation is confined to the injuries occasioned in the course of rendering the complainant unconscious. I have indicated I regard her unconsciousness as amounting to grievous bodily harm and have not taken it into account as a circumstance of aggravation. That leaves the swelling and bruises occasioned by the blows. There is no evidence of any bite marks although there was evidence of biting of the lip and breasts.

18. In determining whether the offence I am dealing with constitutes an offence falling in the mid range of seriousness of s 61J offence I must compare it to other offences created by s 61J that would have criminality constituting a mid range of seriousness. In this case the violence, including sexual violence, was administered to only one victim. The humiliation arising from the intercourse was not compounded by others of the accused’s associates present demeaning the complainant nor was she one of those particularly vulnerable persons under sixteen or with serious physical or intellectual disabilities.

19. There are a number of matters that really mitigate this offence. It was not planned, indeed it appears to be a spur of the moment decision. This accused was aged nineteen at the time of offending. He had consumed alcohol for most of that day. It was not taken to give him Dutch courage but simply consumed. I do therefore take into account that it must have impacted upon his executive brain functions including particularly judgment and his capacity to restrain his inhibitions.

20. This offence falls below the mid range of seriousness. Necessarily any offence falling within s 61J must be a serious offence and this offence is no exception. Both parties have argued that a starting figure of eight years is appropriate. My own view is that while that figure is toward the lower end of the range it is one within the range.

Subjective Matters

21. I am now required to turn to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the court some explanation and insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.

22. Neil Mintern is a twenty­three year old Aboriginal man living in a de facto relationship with Ms Lucas. He is the father of her three children, the youngest about two weeks old and the oldest as I understand it under three. He came from a family of six. His is a complex family structure. There is an older sister and an older half brother. There are three or four other siblings who have different mothers. This offender was raised predominantly by his mother after his parents had separated when he was aged but one year old. He was exposed to serious dysfunctional upbringing including drugs and alcohol abuse in the home. He told Dr Allnut, retained by the defence, “I grew up around a lot of people [having] sex with kids”. The offender himself was abused when aged six by a so called “family friend”.

Education Skills and Employment

23. This offender achieved Year 10 at the age of fifteen. He has learning problems in that he was unable to concentrate and was hyperactive. He has difficulties reading and writing although he says he is able to do both to a level where he can at least function. He had no difficulty making friends or maintaining friends at school. He got on adequately with his teachers. His education and employment history appear to have been hampered by his family’s itinerant lifestyle and his illicit substance and alcohol abuse. His father, as I say, believes he is functionally illiterate but the offender says that he can read and write at survival level.

General Health

24. He is aged now twenty­three and presents as generally being in good health although Dr Allnut notes that the offender has lost about thirty kilograms since he has been in gaol, ten of them in the last couple of months. It may be that that loss of weight is due to stress to which I will come later.

Mental Health

25. The offender has a number of significant stressors including his concern about the outcome of his court proceedings and more particularly the whereabouts and safety of his mother. She has now been lost for some three months. Police are sufficiently concerned to have commenced an investigation including a forensic investigation of her home but as matters presently stand she has not been accounted for. Dr Allnut comes to a view that the offender demonstrated mild symptoms of a depressive disorder characterised by a depressed mood, reduced appetite, energy, concentration and motivation with some social withdrawal. He complained of some anxiety but not to the extent that Dr Allnut would have diagnosed an anxiety disorder.

26. I turn now to the psychosexual history of the offender. The offender told Dr Allnut that he learnt about sex from “other lads”, that his first sexual experience was at the age of six when he was molested. That sexual interference was not one isolated incident but apparently continued for some time. It involved oral sex and it occurred on four occasions. He was again sexually abused at the age of thirteen or fourteen when he was seduced by a girl aged then in her twenties. He claims not to have prior experiences of sexual fantasies, urges or behaviours involving sexual activity with children under the age of thirteen. He claims that he does not fantasise in respect of rape or sex with violence , sadism, sadomasochism, bondage or other fantasies of that kind. He conceded that his past history exposed difficulty with sexual regulation and he accepted that he had a sexual regulation difficulty. When asked why that might be so he said he was unsure but offered this explanation. “It’s what I grew up around, a lot of people had sex with kids.” But he was unsure of the reason.

27. He has in his childhood been exposed to domestic violence, physical abuse and sexual abuse. The sexual abuse in the opinion of Dr Allnut seems to have occurred over a significant period of time and in a number of circumstances, initially by an older male and then by virtue of the twenty something year old girl. His first probable consensual sexual relationship occurred when he was fifteen. Dr Allnut describes him as having been brought up in an environment where sexual boundaries were frequently blurred.

28. The Probation and Parole Service assessed Mr Mintern as in the high risk of re­offending in a sexual matter based on the Static-99. They say that the score is based upon his history of sexual offending, a previous victim being an unrelated stranger, his de-facto relationship not having endured an unbroken two year period and the offender being under twenty­five years of age. That assessment was made on 15 May this year by a departmental senior psychologist. Dr Allnut’s opinion was that given he had two previous convictions for indecent assault and is now charged with a sexual offence concern should be raised about an underlying sexual deviance.

29. Another factor in assessing the psychosexual history is the fact that this offender has a history of substance abuse problems particularly with alcohol. Dr Allnut comes to a view that the offender falls at least into a moderate risk group by which it seems to me he is saying that that is a view most favourable to the offender. The Probation and Parole Service recommended that if the offender is given a custodial sentence that he participate in custody based intensive treatment. That is the Cubit Program. The Cubit Program is based upon cognitive therapy and is targeted at high risk, incarcerated male offenders who offend against both adults and children. The program targets offending behaviour with empathy, victim awareness, impulse control and social competence. The duration of the program is ten months. The hierarchy of interventions within the department requires offenders with sexual violence convictions to engage in Cubit Program in the first instance, then addressed any other criminogenic needs at the completion of that program.

Alcohol and Other Drug Issues

30. The offender at the time of his arrest had not been abusing any substances and had drunk alcohol two days before his arrest, the significance of that being he was not drinking daily. The offender told the Probation and Parole Service that his alcohol and cannabis abuse had been ongoing factors in his offending behaviour. He accepts that he regularly engaged in binge drinking and cannabis consumption to the level of intoxication affecting his memory. He has not sought assistance in those matters. It must be noted of course that on the day of this offending he was drunk and had been drinking I think since the previous day.

31. The offender’s attitude to the offence is basically this. He claims very little memory of it. He says he remembers flashes of events on the evening on which he sexually assaulted his victim. He says that he had forgotten the event until he was made aware that a warrant had been issued for him. He, having been confronted with the event, expressed that he recognised his behaviour was unacceptable and claimed sorrow for his actions. He did not elaborate any further. He did not seek to minimise the impact this offence could have had upon his victim but did claim a diminution of his responsibility as a consequence of his level intoxication. In fairness to him that would appear to be a proposition with which I have agreed because I have counted it as one of the mitigating factors.

32. I regard his plea of guilty on presentation of the indictment as a plea in which he was indicating a preparedness to accept responsibility for his criminal activity. The plea was not of course entered at the Local Court but it does have an important value. The complainant does not have to give evidence and the Crown case would, in my view, have had some difficulties given the earlier situation and the complainant’s absence of memory because she was unconscious.

33. The offender does have a criminal history. His first offending was done in February of 2000. It was an indecent act with a child under sixteen. He was dealt with without conviction and released on a youth supervision order for a period of twelve months. It was dealt with in the Benalla Children’s Court. A year and a half later in July of 2001 he was dealt with for an indecent assault and was released. There was no conviction recorded there because he was also being dealt in the Children’s Court. Nothing then appears to occur until March of 2005 when there is a further indecent assault and he was convicted and a community based order for two years was made for him to perform a hundred hours of community service. A psychological assessment and treatment were ordered. My understanding is that that part of the order was not complied with. In 2007 there is an assault occasioning actual bodily harm dealt with in the Orange Local Court and that is an offence of course that occurs after the offence that I am dealing with and would only go to his rehabilitation prospects. In respect of that offence he was imprisoned for twelve months, it was suspended. There is no breach of any bond in respect of this offence, as I say the offence that I am dealing with occurred two years earlier than that.

34. Clearly this is an offence calling for recognition of the need for general deterrence and, in this case because of the prior sexual matters appearing on the record, for personal deterrence. The maximum penalty for this offence is one carrying twenty years imprisonment. I mentioned at the outset that there appears to me to be some delay in finalising this matter. The offender has a right to silence and is not thereby required to report any unlawful conduct by him to the police. Given that it is a right it seems to me that it cannot be said that this delay of two years prior to his arrest can be laid at his feet. There was material, which identified him fairly early in piece as the offender. The offence is now three years old and in that sense is somewhat stale. He was living in the community for a period of two years prior to this offence before being arrested. Whilst there is another offence of assault, that is of violence, there is no other apparent sexual offending. While the delay in finalising this matter is not great I have given some very modest allowance particularly in respect of setting the minimum term.

35. I come back then to the question of the standard non-parole period only to remark that there is nothing in the subjective features that would cause me to review my initial decision that a standard non-parole period did not apply.

Setting the Sentence and Applying the Discount
36. But for the plea of guilty I would have set an overall sentence of eight years. Applying the twenty percent discount that would bring the overall sentence to one of six years and eight months.

37. I find special circumstances. The reason motivating me to find special circumstances is the offender’s willingness to undertake the Cubit Program, his youth at the time of the commission of this offence, the presence of young children at home making his incarceration more arduous for him and that it is my view his rehabilitation would be better achieved in the community. He was arrested on 5 October and has been in custody since that time.

38. Would you stand up please now. Neil William Mintern you are convicted of the offence that you on or about 25 June 2005 at Bourke had sexual intercourse with Margaret Joan Dickson without her consent, knowing she was not consenting and in circumstances of aggravation, namely that immediately before the commission of that offence you inflicted actual bodily harm upon her. For that offence I sentence you to a minimum term of three years and six months to commence from 5 October 2007 and to expire on 4 April 2011. I set a balance of term of three years and two months to expire on 4 June 2014.

39. I should note that in setting that sentence I have had regard to the JIRS statistics provided to me and that that puts him in a position where forty­two or forty­three percent of the offenders received either the sentence he received or a lesser sentence than he received.
Officer this offender has a baby and it’s just been born two weeks ago. He’s not seen the baby but once in court, do you mind if I allow his partner to come forward and show him the baby again? Yes you may come forward Ms Lucas.

WILLIAMS: Your Honour could I just raise one very minor factual matter? Your Honour said in terms of his drinking on the day of the offence and previous to that that your Honour thought - I think the words you used your Honour was, I think he’d been drinking since the previous day.

HIS HONOUR: Nine o’clock the previous morning is in the back of my mind.

WILLIAMS: I think your Honour’s referring to the history set out on page 4 of Dr Allnut’s report in relation to--

HIS HONOUR: Yes it comes from Dr Allnut I can remember that.

WILLIAMS: On page 4 under the heading, “your client’s account of the alleged offence. The history is this. He started drinking early that day, I think that refers to the day of the offence, he had been drinking the night before and had got up and they had kept going, estimated here it started at 9am.” As I said it’s a very minor matter but insofar as the remarks may have suggested it was--

HIS HONOUR: Well the point that I was seeking to make was that there was alcohol in his blood no doubt when he started drinking.

WILLIAMS: Absolutely, yes your Honour. I once again thank your Honour for this opportunity for my client.

HIS HONOUR: There was one other factor that I meant to mention and I didn’t, under Mental Health which I might just put as an addendum. It was that there is a positive family history of mental illness, with the mother having schizophrenia.

WILLIAMS: Yes.

HIS HONOUR: Which would be a factor both in terms of his upbringing and his immediate concern for her now.

WILLIAMS: Yes your Honour.

HIS HONOUR: Thank you Ms Long, thank you officer I’m very appreciative of that. Right Mr Mintern you may be returned to custody.