R v Dennis [2000] VSCA 81

5. the sentence imposed was manifestly harsh and inappropriate in all the circumstances.

22. The circumstances giving rise to these offences were as follows. During the period of offending, the applicant was aged 31 to 33 years. During that period the victim, S, was 7 to 9 years old. In 1995 the applicant and his partner moved to a house in Carrum Downs, one border of which was shared with the property on which the complainant lived with her family. The applicant became known to the complainant's family and, having gained the trust of her family, engaged in a constant and lengthy period of sexual abuse of the complainant.

25. The offences were committed over a period of nearly two-and-a-half years and included digital and penile penetration of the victim. The offences mostly took place in the applicant's garage, and occasionally inside his house. The victim often climbed the back fence to play with the applicant's dog, a German shepherd, or to play video games. Initially she would help the applicant to clean his garage and he occasionally paid her a small amount of money for help. He then started to sexually assault her on a regular basis, mostly at weekends.

28. The applicant sexually penetrated S in the lounge-room of his house on numerous occasions. In his record of interview with the police on 2 March 1998, he admitted regularly licking the victim's vagina, that at his request she had kissed his penis about 20 times, that he had placed his penis into S's vagina once a month from October 1995 onwards and that three times a month he had placed his finger and tongue into her vagina since October 1995. The judge was, however, not asked to treat the case as one involving representative counts.

31. On occasions the applicant showed S pornographic magazines which he kept hidden in his garage and asked her if she would like to perform some of the acts shown in the pictures. After she refused he offered her money to do so. He often offered S sweets and drinks and told her not to tell anyone. The applicant was often permitted by the victim's mother to take S away on fishing trips. In October or November 1997, the applicant travelled with S to Erica and Neerim and during these trips sexually assaulted her, removing her underpants, licking her vagina and rubbing his penis against her.

34. During a tape-recorded interview with the police, the applicant admitted that his offending had commenced in or about November 1995 and thereafter occurred on most weekends. He admitted that on most occasions he licked, touched and then rubbed her vagina with his penis. The opinion of Mr Dungey, expressed in his report of 15 June 1998, included that the applicant was "suffering a significant mental and emotional disorder with hysteria and schizoid features being the main factors. There is also a great deal of generalised stress. The pattern he presents is quite rare but it certainly indicates a severe, significant and probably reasonably long-standing mental disorder." The concluding comments in Mr Dungey's opinion were as follows -

"In my experience men with paedophile tendencies do not habitually or generally re-offend once they have been through the court process. In my opinion Mr Dennis is not a general threat to children in the wider community. He is in a stable relationship with his present partner. There are some concerns, as there is a young child living under the same roof and it must be said that the alleged offences occurred while he was living with Catherine. Unlike many paedophiles, he does present with a significant mental disorder."

38. A different view was, however, given by Dr Douglas Bell, the consultant psychiatrist, who stated in his report provided for the Court that -

"I note the conclusions of Mr Dungey that Mr Dennis is suffering from a significant mental and emotional disorder, characterised by hysteria and schizoid features, along with the conclusion that Mr Dennis does not constitute a general threat to children in the wider community. I would respectfully differ from these conclusions, firstly in that there is no evidence on history or mental state examination of any form of mental illness as discussed above. The features that Mr Dungey has identified on the Minnesota Multiphasic Personality Inventory are appropriately understood as a reflection of maladaptive personality traits rather than as diagnostic of any particular form of mental illness. Secondly it is not possible to say one way or the other whether Mr Dennis has, prior to his offending against [S], ever had any pattern of paedophilic deviant sexual arousal. The frequently repeated and invasive nature of his offending, whilst acknowledging its wrongfulness but feeling unable to desist from doing so is of considerable concern, and it would be appropriate that during Mr Dennis' incarceration he be referred to the Wimmera Sex Offender Treatment Program at Ararat Prison. In the more long term, it would be appropriate following his ultimate release from custody that he be referred for ongoing care to the Sex Offender Treatment Program at the Brunswick Road Forensic Psychiatry Outpatient Clinic."

42. During sentencing reasons the learned judge said -

"The sentence for sexual abuse of a child in the circumstances that exist in your case must reflect the community's denunciation of this behaviour. Dr Bell is unable to reach any concluded view on whether you could be characterised as an established paedophile. He tends to the view that you are, but on any view, yours was a course of conduct designed to obtain sexual gratification from a child who, from time to time, had been entrusted to your care by her parents. You abused that trust, violated and debauched her and you have created the potential for irreversible damage to her sexuality and personality generally. The victim impact statement provided by the girl's mother is a melancholy document. The child has had frequent counselling since these matters were raised. The child's mother attributes a whole range of erratic behaviour to your offending. I could not find that the wide-ranging forms of inappropriate behaviour which the child's mother describes can all be attributed to your abuse of the child ... but there can be no doubt that your abuse of the child has the potential to deleteriously affect her development and I have had to consider this victim impact statement in the sentencing process."

46. Although the judge's reasons for sentence make no mention of the maximum penalty for the offence of sexual penetration of a child under the age of 10 contrary to s.45 of the Crimes Act 1958, there was an exchange between the judge and defence counsel during the plea which suggests that his Honour was under the impression that at all times the relevant maximum was 25 years' imprisonment. As has already been said, this was a correct statement of the maximum penalty only for those offences contrary to s.45 occurring on or after 1 September 1997. Examination of the presentment shows that the offences set out in counts 1 to 22 were all alleged to have occurred in periods commencing before 1 September 1997. Only the offences in counts 23 to 30 were alleged to have occurred after 1 September 1997. Accordingly, if his Honour was under the impression that the relevant maximum was at all times 25 years' imprisonment, an incorrect maximum was assumed in relation to each of counts 1 to 22. The actual sentences imposed, however, on the charges of sexual penetration of a child, varied from three years up to seven years' imprisonment.

49. The maximum penalty for an offence is ordinarily an important consideration; indeed in Stol (1989) 44 A.Crim.R. 137 at 138, Malcolm, C.J. said that the fact that a sentencing judge expressly took into account an incorrect maximum penalty when passing sentence would alone warrant the intervention of the court on the ground of an error of law. But in R. v. Hung Quoc Chau (unreported, 31 July 1991) the Court of Criminal Appeal in this State declined to regard what was said in Stol as a determination that any error concerning the maximum must always vitiate the sentence or at all events a sentence of imprisonment. In R. v. RJE [1999] VSCA 79, Brooking, J.A. considered three cases decided by courts in Victoria which dealt with the imposition of sentence where the sentencing judge had a mistaken belief as to the maximum penalty and concluded that the question whether the error is material and so fatal to the exercise of the discretion depends on the circumstances. See R. v. Morton [1986] VicRp 82; [1986] V.R. 863 at 865; R. v. Ma, Court of Appeal, unreported, 18 March 1998 at pp.5-6 and 11; and R. v. Maher, Court of Appeal, unreported, 21 May 1998. To the same effect as RJE is the decision of this Court in R. v. Kosta Sivov [2000] VSCA 7. In Sivov Hampel, A.J.A. (with whom Winneke, P. and Batt, J.A. agreed) said that not every error about the available maximum penalty reflects a sentencing error, the question depending upon the nature of the error as to the total penalty available and the circumstances of the case.

52. It seems to me that in all the circumstances of the present case, if the judge was under a mistaken belief as to the maximum penalty for an offence against s.45 of the Crimes Act, that mistake was not material and so did not vitiate the exercise of discretion. An important consideration bearing upon that conclusion is that the base sentence taken by his Honour for the purpose of arriving at a head sentence was count 25 and the order for cumulation related to count 27. If the judge was under a mistaken view as to the maximum penalty, that mistake, of course, only related to counts 1 to 22. Having regard also to the sentences actually imposed on counts 1 to 22 and the correct maxima which applied at all times, I would for myself characterise any error as immaterial, but it is unnecessary to decide this question, for even if I had considered that any mistake made might have influenced the sentence actually passed, I would not be of opinion that a different sentence should have been passed on any of the individual counts. I should add that Mr Perry, counsel for the applicant, accepted that any mistake the judge may have made in this regard did not involve sentencing error.

55. Mr Perry treated all the grounds previously set out as particulars of a submission that the sentence imposed was manifestly excessive. He argued that the sentence was appropriate only to a fully- contested trial, and did not sufficiently recognise the absence of relevant prior convictions in the applicant. He argued that the sentence did not take into account the plea of guilty, the admissions the applicant made to the police, or the stage at which the intention to plead guilty was communicated. He also submitted that the sentence did not recognise the absence of force or threats employed by the applicant or that only one complainant was involved.

58. The fact that no force or threat was used is in my view of little relevance. The victim was a young girl between 7 and 9 years old at the relevant time. The applicant was a neighbour who was frequently trusted by the girl's mother to exercise care and protection over the child. He accepted a position of trust on her behalf at these times. Having done so, on the occasions when the child at first refused to comply with his wishes, he offered her money, sweets and drinks to overcome her refusal. While it is true that the applicant did not aggravate the offences by using threats or force, I do not see their absence as a mitigating factor in the circumstances I have described. The fact that over a period of two years or more he committed 30 serious offences with only one complainant is, to my mind, irrelevant. The absence of relevant prior convictions was put to and accepted by the judge, as also was his early plea of guilty and co-operation, the plea being expressly mentioned by the judge as entitling the applicant to a discount.

61. The real question in this case is, I think, whether in all the circumstances the applicant's early plea of guilty and co-operation with the police, together with the absence of any prior convictions, resulted in the judge being bound to sentence the applicant to a head sentence of less than 12 years, or to fix a non-parole period lower than nine-and-a-half years. The comments of the judge in the passage quoted above, with which I unreservedly agree, show the potential harm which has been caused to the victim. These offences began when the girl was only seven years old, continued for two years or more and quite plainly may have caused irreversible damage to her in the manner described, as well as wrecking much of the potential for her future enjoyment of life.

64. This is a troublesome and difficult case. I have given anxious consideration to Mr Perry's succinct and very helpful submissions. The applicant was entitled to a discount for his plea of guilty and co-operation with the police. Having regard to the early stage at which the plea was offered and the degree of co-operation given, the discount must be a significant one. The judge said he had given such a discount. But, on the other hand, taking into account the number and nature of the applicant's admitted offences, the seriousness of them and their effect on the victim, I can only say that a substantially more severe penalty might properly have been imposed had it been necessary for a trial to take place. Therefore I do not accept the submission that the sentences imposed were appropriate only to a fully-contested hearing.

67. In my view the head sentence of 12 years' imprisonment and the non-parole period fixed were both within range.