R v Dennis

ground three: "top-down sentencing" 25 This ground concerned the approach taken by the sentencing judge to the fixing of the appropriate term. It is necessary to extract some further passages from the remarks on sentence. His Honour said: "I know that the prescribed punishment for the offence is imprisonment for a maximum of twenty years. I appreciate that this punishment is reserved for the worst type of case. I wonder what is the worst type of case. I wonder what an offender must do to fit within the worst-case category. I suppose that for any case there would be a worse case. I wonder where the subject case fits into the range of cases. I accept that it cannot fit within the worst type of case category. I know that it does not fit within the least serious type of case category. The offender's counsel, in suggesting that the punishment should be imprisonment for six years, allowing a discount of twenty-five per cent on account of the guilty plea, suggests that the offence fits within the bottom forty per cent category. I do not agree. I consider that the offence fits at the seventy-five per cent category. I have determined, taking into account what I have said, that putting aside the discount for the guilty plea and other favourable subjective features, that the punishment for this offence is imprisonment for fifteen years. I discount that period by ten per cent, that is one year six months, on account of the guilty plea and another ten per cent on account of the other favourable circumstances to twelve years." 26 Criticism was made of this mathematical approach. Reference was made to R v Gallagher (1991) 23 NSWLR 230, per Gleeson CJ. I think the criticism has some merit. While it may be correct to say that in every case a sentencing judge must have regard to the maximum penalty provided by the relevant statute, and fit the offence under consideration into some kind of hierarchy by reference to that maximum, it is, in my view, potentially productive of error to attempt the kind of mathematical formulation that the sentencing judge in this case did. I am not sure that, on its own, this approach would warrant a finding that error infected the sentencing process and, because of the conclusion I have come to in relation to ground four, it is unnecessary to determine that matter.

ground four: factual error 27 In recounting the facts of the offence the sentencing judge said that, after ordering the victim to lie face down, the applicant attempted but failed to penetrate her anus with his erect penis, and then penetrated her vaginally. Later, again in reference to the facts of the offence, he said that the applicant attempted to rape the victim anally before raping her vaginally. Finally, in considering the appropriate sentence, he said: "But I must not lose sight of the fact that I am to impose sentence on a middle-aged man who vaginally raped a fifteen year-old child in the bedroom of her own home whilst he held a knife at her throat and after attempting to rape her anally." 28 There was, as was submitted on behalf of the applicant, no evidence that would justify a finding of fact (which would have to be found beyond reasonable doubt) that the applicant had attempted anal intercourse with the victim. In the victim's statement the following appears: "I could feel him behind me and I felt his penis which was hard at my backside. He was trying to put himself inside me."

That alone may convey the impression that the applicant had attempted to penetrate the victim anally. However, it is immediately followed by: "He tried at first to put himself inside my vagina, but he couldn't. I don't know why. He then finally pushed himself inside me and I could feel his hard penis inside of my vagina." 29 I accept that it was an error of fact to state that the applicant had attempted anal rape of the victim. Implicitly, counsel who appeared for the Crown on the application accepted that this constituted a factual error. He added, however, that it was difficult to conclude that the finding had any material bearing on the sentence. 30 I do not accept that proposition. Firstly, the sentencing judge made the assertion on no fewer than three separate occasions in his sentencing remarks. Secondly, it is plainly a matter of aggravation. I appreciate the Crown's submission that, had such an event occurred, it could have supported a separate charge. This submission was put, I take it, in order to suggest that the sentencing judge would have excluded it from consideration on the principles stated in R v De Simoni (1981) 147 CLR 383. I am not satisfied that the factual finding was excluded from consideration. Everything points to it having been taken into account as a circumstance aggravating the offence. 31 I am satisfied that error has been demonstrated and that this court is required to intervene.

ground one: manifestly excessive 32 A number of matters were put on behalf of the applicant under this ground of the application. Reference was made to what was described as: "a number of particularly harsh judgments in relation to the applicant's background, upbringing, education, employment, marital history, health, drug and alcohol history, character and his contrition (or, as his Honour found, its absence)." 33 In relation to rehabilitation the sentencing judge said: "However, this offender has not rehabilitated himself or been rehabilitated by others, having regard to the fact that he has been dealt with, as I have said already, for one hundred and eleven previous offences. This offence was committed, as I have said already, less than three months after when he had been released from prison. I doubt that the offender will rehabilitate. I doubt that he is motivated towards rehabilitation. I suspect, as history has the habit of repeating itself, that his criminal history will repeat itself on his release from prison." 34 Counsel for the applicant pointed to the evidence, to which I have already referred, of the pre-release report and the psychological report. I do not think these undermine the assessment made by the sentencing judge. In my opinion the assessment, although perhaps "harsh", was open to his Honour. It was pointed out that this was the first offence of its kind by the applicant (contrary to the account given by Professor Thomson) and that he had had only one earlier sexual offence as a juvenile. That was an assault and an offence of sexual assault charged under s61D of the Crimes Act in respect of which the applicant was committed to an institution but the sentence suspended upon his entering into a recognisance of good behaviour for three years. 35 That this was the applicant's first offence of this kind may be accepted but that does not impinge upon the extreme seriousness of the offence committed by the applicant. He invaded the sanctity, not only of the victim's home, but of her bedroom, and subjected her to a degrading and sustained assault, with the threat of the use of a knife and threats to her life. He was acquainted with the victim and her family and must therefore be taken to have known of her approximate age. It is relevant that the victim was sexually inexperienced. 36 A further matter raised for this ground was that the sentencing judge made no reference to the principles stated by Wood J (as the Chief Judge then was) in R v Fernando (1992) 76 A Crim R 58. In that matter Wood J was sentencing an Aboriginal offender and made reference to a history and pattern of deprivation and disadvantage which he considered to be relevant to the assessment of culpability and therefore the determination of sentence. As I have previously remarked, it is an error to regard Fernando as stating any principle applicable in general to the sentencing of Aboriginal people. Fernando states principles about taking into account a history and pattern of deprivation. The mere fact that an offender who has experienced that history and pattern is Aboriginal is coincidental. In this case, there was no evidence that the applicant had experienced that history or pattern, and indeed the evidence was to the contrary. There was no error in the non-application of the principles stated in Fernando. Those principles did not apply. 37 Finally, reference was made to what might be described as comparable cases. It was submitted that where similar sentences had been imposed, the offences were much more serious than the applicant's, and that in other cases that were more serious, much lesser sentences had been imposed. 38 I do not accept that the sentence was manifestly excessive, although I do accept that, by reference to comparable cases, it was a heavy sentence. 39 Having regard to the error identified in relation to the factual findings by the sentencing judge, it is necessary for this court to re-sentence. Against that possibility, the court received additional evidence. The applicant has undertaken a number of courses whilst in custody and was described by a senior correctional officer as having made a good effort towards beginning studies under difficult circumstances. He was seen by a psychologist in September 2002 complaining of stress and mild depression and a history of suicidal ideation although he was said not to be intending to act on those ideas. 40 The applicant himself affirmed an affidavit in which he said he had secured work as the Aboriginal delegate and had been acting in that role for over twelve months. He believed he was assisting in achieving racial harmony in the prison. He said he had asked to see the drug and alcohol worker but had not, at the date of affirming the affidavit (17 April 2003) seen that person. He affirmed: "Now that I am totally drug free and have had time to reflect, I accept without question that my crime deserves a harsh penalty. At times I can barely recognise that the person who has committed this hurt upon the victim, is in fact me. I feel that I am not a man. I am deeply ashamed of what I have done and feel that I deserve to be punished." 41 He said that he had requested participation in the sex offenders' program but had been advised that he was not eligible until he achieved the appropriate classification and had served the majority of his sentence. He said that he had not used drugs whilst in custody, despite their ready availability and did not ever wish to use drugs again as he believed they contributed to his commission of "such a horrible crime". For geographic reasons, and because he understood that his family found it difficult to come to terms with his crime, he receives few visits from his family. 42 These indications of rehabilitation are certainly hopeful. Only time will tell whether that hope is justified. In my opinion, as the court is obliged to re-sentence, it should take the material to which I have referred into account. I would conclude, as a matter of fact, and on the basis of events that post-date the original sentencing, that the applicant has prospects of rehabilitation. I propose that, in lieu of the sentence imposed by the sentencing judge, the applicant be sentenced to imprisonment for ten years, commencing on 7 October 2001, with a non-parole period of period of seven years and six months, the non-parole period to expire on 6 April 2009.

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