R v Mittiga

Case [2010] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MITTIGA

[2010] SASCFC 67

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Peek)

3 December 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - OTHER MATTERS

Appellant appeals against sentence of imprisonment imposed by District Court - permission to appeal granted in Supreme Court - appellant found guilty by judge alone of 3 counts of indecent assault, 2 counts of unlawful sexual intercourse, 2 counts of aggravated indecent assault, 1 count of gross indecency - counts 6 to 8 committed after appellant arrested and while on bail for counts 1 to 5 - offences committed when appellant was 80 to 82 years of age - appellant's wife passed away shortly before offending commenced - offences committed against three young sisters while appellant was in position of trust - appellant sentenced when 83 years of age - sentencing judge applied s 18A Criminal Law (Sentencing) Act 1988 - counts 1 to 5 treated as course of conduct - nominal sentence and non-parole period fixed for counts 1 to 5 - counts 6 to 8 treated as later course of conduct and made cumulative - nominal sentence and non-parole period fixed for counts 6 to 8 - reduction made for totality - head sentence imposed of 15 years with non-parole period of 11 years.

Whether sentencing judge erred in his application of s 18A - whether sentencing judge gave adequate weight to appellant's personal circumstances - whether sentence manifestly excessive.

Held: Appeal allowed for the limited purpose of correcting the form of the sentence - sentencing judge erred in his application of s 18A - sentence not manifestly excessive.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - ELDERLY OFFENDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Criminal Law (Sentencing) Act 1988 s 10(1)(i), s 10(1)(o), s 18A and s 32, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; R v D (1997) 69 SASR 413; R v Ellis (2010) 107 SASR 94, applied.
Gulyas v Western Australia (2007) 178 A Crim R 539; R v Randall-Smith and Davi (2008) 100 SASR 326, discussed.
R v Mittiga (No 2) [2010] SADC 68; R v Hunter (1984) 36 SASR 101; R v Nylander (2003) 228 LSJS 24, considered.

R v MITTIGA
[2010] SASCFC 67

  1. DOYLE CJ:          I agree with Anderson J, and for the reasons that he gives, that as a matter of substance the sentencing Judge has not erred.  I also agree with him that it is appropriate to allow the appeal, but only for the limited purpose of correcting the form in which the sentence is expressed.

  2. For those reasons it is appropriate to allow the appeal, to set aside…

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AGLC
R v Mittiga [2010] SASCFC 67
Case
[2010] SASCFC 67
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence of imprisonment imposed by the District Court on the appellant, who was found guilty by a judge alone of multiple counts of indecent assault, unlawful sexual intercourse, aggravated indecent assault, and gross indecency. The offences were committed against three young sisters, with some counts occurring after the appellant had been arrested and was on bail for earlier offences. The appellant was aged between 80 and 82 at the time of the offending and was 83 at the time of sentencing.

The central legal issues before the Supreme Court were whether the sentencing judge erred in the application of section 18A of the *Criminal Law (Sentencing) Act 1988* (SA), whether adequate weight was given to the appellant's personal circumstances, particularly his age, and whether the sentence was manifestly excessive. The court was required to determine if the method used to calculate the sentence was legally sound and if the overall sentence reflected an appropriate balance of punishment, deterrence, and consideration of the offender's age and circumstances.

The Supreme Court held that the sentencing judge had erred in the application of section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) by fixing separate non-parole periods for distinct groups of offences, which created uncertainty and an incorrect procedural outcome. The court found that the judge should have imposed a single non-parole period in relation to the combined head sentences after ordering accumulation. However, the court determined that the sentence itself was not manifestly excessive, acknowledging the seriousness of the offences, the position of trust the appellant occupied, the vulnerability of the victims, and the need for general and personal deterrence. The appeal was allowed solely for the purpose of correcting the form of the sentence to remove ambiguity and ensure compliance with sentencing provisions.

Orders

Orders of the court

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Background

Background to the litigation

The issues on appeal are whether the sentencing judge erred in the method used to calculate the sentence and whether the sentence is manifestly excessive. The appellant is now 83 years old. He was therefore 82 when this offending commenced. His age is one of the main factors relevant in this appeal.Background It is convenient to set out the factual background as found by the sentencing judge in R v Mittiga (No. 2) [2010] SADC 68. These facts were not challenged on appeal. At [38]-[39] his Honour said:… [the] three complainants were sisters, living with their parents and three younger brothers at Findon. The family were in poor and difficult circumstances. In 2007 the accused was an 81 year old man. It is alleged that L was walking past the accused’s house one day and offered to help the accused out, as her religion had taught her to offer to help old people. She offered to and did do some cleaning and shopping for him, and over time the other two complainants met the accused as well.The family was struggling financially, the accused assisted them with money, driving them places and providing them meals. Over time it is alleged that the family became reliant on the accused. Regularly the children would go to his house for an evening meal, the accused collecting them and returning them. The accused became trusted by the complainant’s parents and accordingly the girls were left with him on regular occasions. At [43] the judge summarised some of the evidence of victim T, relevant to the background of this case:[T] gave evidence that she was the oldest child in the family, being 18 at the time of giving evidence in April 2010. At the time of giving evidence she confirmed her sister L was 16, S was 11 and her three brothers were 7, 5 and 2. She admitted that the family had been struggling financially, particularly once the youngest child was born. It was at that stage her mother had got sick and her father had to stop working to care for her mother. T gave evidence that her mother now suffered from a brain tumour and epilepsy, and that the family’s income was limited to family welfare payments of various types. I now set out the judge’s findings from R v Mittiga (No. 2) at [217]-[224] as those paragraphs concisely summarise the circumstances of the offending by each count:[217]As a result of the above I find proven beyond reasonable doubt that [the appellant] on the 23rd day of May 2007 at Tyrie Avenue Findon indecently assaulted T, a person of the age of 16 years by, in the third bedroom of his house grabbing her arm, pulling her onto his lap, lifting up her jumper and rubbing her stomach with his hand on her bare skin towards her breast, then taking his hand from under T’s jumper and placing it onto T’s right breast for approximately two seconds before T pushed the accused’s hand away and saying no. I find that the elements of the offence of indecent assault as earlier articulated are made out in that the accused unlawfully applied force intentionally and without lawful justification or excuse to T, accompanied by circumstances of indecency. I find that placing his hand under T’s clothing on her stomach and moving it towards her breast and then grabbing her breast on the outside of her clothes is indecent having reference to what a reasonable contemporary standard would describe. Accordingly I find count 1 in the information proven beyond reasonable doubt.[218]I find proven beyond reasonable doubt that [the appellant] between the 23rd day of May 2007 and the 30th day of April 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years in the lounge room of the accused’s house at Crittenden Road when the accused was sitting on the lounge in the lounge room with T. I find that the accused placed T’s leg over his leg and started rubbing T’s left chest area and breast and thigh. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse accompanied by circumstances of indecency. I find that in all the circumstances placing T’s leg over his leg, rubbing her chest and breast and upper thigh was indecent in the relevant sense. I find count 2 in the information proven beyond reasonable doubt.[219]I find proven beyond reasonable doubt that [the appellant] between the 31st day of March 2008 and 1st day of May 2008 at Crittenden Road Findon indecently assaulted T a person of the age of 16 years by pushing T into the kitchen table, leaning over her, placing his hands down the front of her pants, touching her skin and moving his hand down her pelvis, attempting to kiss her and rubbing his penis on her leg through her clothes. I find that this was an intentional and unlawful application of force to T without lawful justification or excuse and I find that the circumstances as described were indecent in the relevant sense. I find count 3 in the information proven beyond reasonable doubt.[220]I find the proven beyond reasonable doubt that [the appellant] had unlawful sexual intercourse with a person under 12 years of age in that on 15 June 2008 at Findon he had vaginal sexual intercourse with S, a person of the age of 9 years, grabbing her by the hand, pulling her into the bedroom, locking the door, pulling S’s pants off, pushing her down on her bed, and then having vaginal sexual intercourse with her, by firstly placing his penis and then his tongue in her vagina. I find that during that process the accused also made contact with S’s chest with his hands and squeezed her which hurt. I find that S was under the age of 12 at the time, being 9 years of age. I find count 4 in the information proven beyond reasonable doubt.[221]I find proven beyond reasonable doubt that [the appellant] had unlawful sexual intercourse with a person under 17 in that on the 15th day of June 2008 at Findon he had vaginal sexual intercourse with L, a person of the age of 14 years, in that on that day he drove her to his house on the pretext of getting her to change a light bulb and when she was in the process of doing that he grabbed her, pushed her onto his bed, held her arms, said “things are gonna happen now” and then had vaginal sexual intercourse with her for some minutes until interrupted by a lady knocking on the door. I find that L was 14 years of age at the time of these events. I find count 5 in the information proven beyond reasonable doubt.[222]I find proven beyond reasonable doubt that [the appellant] between the 31st day of July and the 1st day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years by touching her on the breast when visiting her at the market whilst they were both sitting in his car. I find that he intentionally and unlawfully and without lawful justification or excuse applied force to S and that the touching of the breast was indecent in the relevant sense. I find count 6 in the information proven beyond reasonable doubt.[223]I find proven beyond reasonable doubt that [the appellant] on the 19th day of September 2009 at Grand Junction Road Kilburn indecently assaulted S a person of the age of 10 years, by in his car at the market unbuckling his seatbelt, reaching over with his hand, and placing it on her leg and moving it towards her vagina. I find that this act was an intentional and unlawful application of force to S without lawful justification or excuse and that placing his hand on S’s leg and moving it towards her vagina was indecent in the relevant sense. I find count 7 in the information proven beyond reasonable doubt.[224]I find proven beyond reasonable doubt that [the appellant] on the 19th day of September 2009 at Grand Junction Road Kilburn committed an act of gross indecency in the presence of S, a person under the age of 16 years by conducting a detailed and explicit conversation describing having sex with his wife. The accused asked S if she knew how to have sex, described vaginal and oral sexual intercourse with his wife both in bed and in his car. I find that the conversations alleged by the complainant did occur, that it was in the presence of the complainant and directed towards S who was under the age of 16. I find that the conversation was indecent having regard to the complainant’s age, the nature and circumstances of the conversation and contemporary standards of morality and decency. I apply Singleton v Police (2009) SASC 41. I find that the indecency was gross in that it was considerably more than minor or trivial indecency and that it can be properly characterised as grossly indecent. I find count 8 in the information proven beyond reasonable doubt.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J PEEK J
As I said when dealing with the submissions on appeal, counsel for the appellant referred to Randall-Smith and Davi. I do not consider that the issues which arose in that case occurred here. The approach taken by the sentencing judge here, although similar to what happened in Randall-Smith and Davi, did not create an “air of unreality”. Any sentence of imprisonment imposed on the appellant at the age of 83 would naturally approach the life expectancy of an average person purely by virtue of his age at the time of sentencing. That does not lead to the conclusion that the sentencing judge erred in his approach.Conclusion In my view the approach taken by the learned sentencing judge in calculating the sentence was somewhat unorthodox. Although what His Honour was doing is transparent, it will be necessary to remove some possible uncertainty which exists. I deal with that shortly. In any event, I consider that the sentence arrived at was within range in light of the offences committed. In particular I have regard to the position of trust the appellant was in, the personal circumstances of the victims, particularly in relation to their financial vulnerability and ages. Because these sexual offences were against young girls, the need for deterrence, both general and personal, and the need to impose adequate punishment for the offences, are important considerations. Taking into account all of the circumstances I have referred to earlier, it is my view that the sentence imposed is appropriate for the seriousness of this offending. The sentence was not manifestly excessive in my opinion. I have not overlooked the mitigating circumstances referred to by counsel and the authorities which discuss those matters. I have concluded that there is no manifest error in the sentencing process. Section 32 of the Criminal Law (Sentencing) Act 1988 (SA) does not appear to contemplate that two separate non-parole periods will be fixed in respect of a prisoner who is serving a sentence of imprisonment. I agree with Ms Davison that it was an error on the part of the Judge to fix a non-parole period in relation to each separate group of offences. What the Judge did produces a situation in which, after the first non-parole period expired, there would be a period of time before the next non-parole period began, because that non-parole period was fixed in relation to the second group of offences. The judge should have fixed the head sentence in relation to each group of offences made an order for accumulation, and then should have fixed a single non-parole period in relation to the combined head sentences. There is also an uncertainty as to the final form of the sentence. The endorsement on the Information records a head sentence of 15 years’ imprisonment, and a non-parole period of 11 years, both to commence from 8 July 2010. But in fact, on the judge’s approach, it was the first head sentence alone that came into effect from 8 July 2010. The judge’s reasons for sentence suggest that, in the end, he might have been intending to impose a single sentence pursuant to s 18A. This should be clarified.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J, PEEK J

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