R v Dennison

Supreme Court of NSW|2010-03-19|Before: Fullerton J

The application of the principle of totality 70 I am conscious of the need for an appropriate sentence to be imposed for each of the nineteen offences on the indictment before consideration can be given to concurrency or accumulation, and before "the stepping stage" process of the commencement dates for the individual sentences is applied (see Pearce v R [1998] HCA 57; 194 CLR 610; R v Finnie [2002] NSWCCA 533). In R v Janceski [2005] NSWCCA 288 at [21] the Court of criminal Appeal was concerned to emphasise that where there are multiple offences committed against multiple victims in the one course of criminal conduct, it is wrong to consider the sentencing process as related to a single course of criminal offending which has created multiple victims, and to regard that as an aggravating factor under s 21A(2)(m) of the Sentencing Act, while imposing concurrent sentences. 71 That said, application of the principle of totality in this case requires that some of the individual sentences in respect of the offences committed against some of the victims are shortened, with some sentences attracting fixed terms and some to be served wholly concurrently with others to avoid the double counting that would inevitably result given the large number of substantive sexual offences and the fact that an intent to secure sexual gratification or commit a sexual offence is an element of other offences. (I note that in considering which sentences might properly attract a fixed term that it is only those which are not standard non-parole period offences that are susceptible to the operation of s 45 of the Sentencing Act.) Were there not some telescoping of the individual sentences in this way the inevitable result would be an extremely long sentence of crushing proportion. For this offender, a feeling of hopelessness would be inevitable effectively neutralising any prospect of his rehabilitation upon his eventual release or the prospect of him engaging meaningfully in prison based programs in the interim. 72 The totality principle also requires that those sentences that are to be partially accumulated, and the resulting aggregate sentence and non-parole period, is a just and appropriate measure of the total criminality involved in the commission of all offences (see Postiglione v R [1997] HCA 26; 189 CLR 295 at 406 per McHugh J) while at the same time ensuring that the effective sentence meets the different sentencing objectives in s 3A of the Sentencing Act.

73 It was not submitted that special circumstances exist in this case to justify a variation in the statutory ratio between the aggregate or effective non-parole period and the balance of term, although there may be some need to vary the individual sentences to ensure that ratio is maintained overall.

The sentence for murder, the first count on the indictment

74 Section 19A of the Crimes Act specifies the maximum penalty for murder is imprisonment for life. The Crown did not submit that a life sentence should be imposed in this case. I accept that concession. 75 The offence of murder is, however, an offence to which a standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. The law provides that this is the non-parole period which is to be imposed after trial for offending in the mid range of objective seriousness, unless there are aggravating or mitigating factors justifying a greater or lesser non-parole period, relative to the standard non-parole period of 20 years as a reference point (see Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 at [18]).

76 As the Court of Criminal Appeal has very recently had occasion to emphasise in R v McEvoy [2010] NSWCCA 110, the legislature has provided a structure by reference to which a sentence for a standard non-parole period offence is to be passed. In this case that obliges me to clearly articulate the reasons why, in my assessment, the objective seriousness of the particular offending in those offences falls within, above or below the mid range of offending. The concept of objective seriousness was considered in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]: "The multiplicity of purposes of sentencing set out in s 3A of the Act … do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender…" 77 The plea of guilty is not a factor that affects objective seriousness, although it is a matter which permits departure from the imposition of a standard non-parole period.

78 In this case LW's murder is not accompanied by either of the alternate mental states recognised in s 18(1) of the Crimes Act. Rather, his liability for her death is as a consequence of his detention of her and his infliction of a sustained course of sexual violence upon her over the course of some hours such that that her attempts to escape from the apartment from which she fell to her death were a natural consequence of his conduct (see Royall v R [1991] HCA 27; 172 CLR 378 at 404-405). 79 Despite the difficulty in hypothesising upon the abstract, or putative, offence in the middle of the range of objective seriousness for a murder committed in the rare circumstances in which LW met her death, I consider the objective seriousness as within the mid range, given the reign of terror and the serious violence she was subjected to and from which she attempted to make her escape, and the horror she must have experienced in the minutes before she fell to her death, knowing she was about to fall from a considerable height with the certainty of serious injury, if not death. The fact that the offender did not intend to kill her (or perhaps did not even know that she had fallen) does not ameliorate the objective seriousness of the offending, although it does serve to appoint the offence as towards the lower end of mid range offending for murder given that an intentional killing may be properly located within the mid range of objective seriousness depending upon the particular circumstances of the case under consideration. The fact that the sexual violence inflicted on LW inside the unit from which she attempted to escape before falling to her death has attracted additional substantive charges for which the offender is also to be sentenced, does not detract from the objective seriousness of the murder, although it will result in only partially accumulated sentences between those six counts and the murder to avoid the risk of double counting. The seriousness of the murder is aggravated under s 21A(2)(eb) of the Sentencing Act by the fact that LW fell from the balcony of her own home. 80 In determining the appropriate sentence for the murder of LW relative to the standard non-parole period of 20 years as a reference point, I take into account in mitigation the fact that the offender is genuinely remorseful as provided for in s 21A(3)(i) and that his plea of guilty was entered on arraignment under s 21A(3)(k) of the Sentencing Act.

The plea of guilty 81 While it cannot be said that in these circumstances the pleas were entered at the earliest opportunity, in the absence of any information as to the process by which the indictment was ultimately settled, I regard a 20 per cent discount for the plea of guilty as appropriate in the calculation of each of the individual sentences. In this case the pleas of guilty have significant utilitarian value not only because of the very great number of offences charged on the indictment, and the separate offences on the Form 1's, but because it avoided the necessity for a lengthy trial where the surviving victims would have been required to relive the horror of their exposure to the offender's criminal conduct.

The sentences for the aggravated sexual assaults 82 The same principled approach needs to be made to the sentences to be imposed on each of the five counts of aggravated sexual assault were LW was the victim and the two counts where TH was the victim since each offence attracts a standard non-parole period of 10 years. The particulars of the sexual assault differed between counts and between victims (although in each case the feature of aggravation was the same, namely the use of a knife), in that four counts involved fellatio (where both victims were required to fellate the offender) and the remaining counts involved penile penetration of LW's vagina, the use of a knife handle to penetrate her vagina, and the digital penetration of TH's anus. All offences involved grave violations of the victims in the presence of each other, and in degrading and humiliating ways. The penetrative offences also caused both victims intense pain. That said, I regard counts 12 and 13, the penetration of LW's vagina first with the handle of the knife and thereafter with his penis, and the digital penetration of TH's anus in count 8 as objectively more serious than the fellatio they were each forced to provide, and towards the upper end of the mid range of objective seriousness given the duration of the penetrative assaults and the pain that both victims suffered in the process. The only factor aggravating the offending under s 21A(2) of the Sentencing Act is under s (eb), namely that the assault occurred in the home of both victims, since the threatened infliction of actual bodily harm by means of a knife was particularised as the aggravating factor in each count. I have already made reference to the proper approach to s of 21A(2)(m) in the circumstances of this case. 83 In imposing sentence in respect of count 6, the aggravated sexual assault on TH by forced fellatio, and count 13, the aggravated sexual assault on LW by penile penetration of her vagina, I am required to take into account a number of allied sentencing principles. I am obliged to take into account, in particular, the additional fact that the offences on the Form 1, particularly in regard to count 13 on the indictment, constitute serious and additional offending of the same kind as that charged on the indictment. While this does not operate to render the offending objectively more serious, it does serve to increase the penalty that would otherwise be imposed for the offending charged on indictment, and by a measure appropriate to the level of seriousness for those offences I am invited to take into account. 84 In R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 Wood CJ at CL said: "[30] When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL. [31] There is a considerable advantage to the administration of justice, and to accused persons, for a partyfacing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose." 85 In determining the appropriate sentence for each count of aggravated sexual assault, relative to the standard non-parole period of 10 years as a reference point, I take into account, in mitigation, the fact that the offender is genuinely remorseful and that his plea of guilty was entered on arraignment. Recklessly causing grievous bodily harm to TH 86 This is charged as the second count on the indictment. It is subject to a standard non-parole period of 4 years. Having regard to the circumstances in which this offence was committed as detailed in [42] above, and the fact that by his plea the offender accepts that he averted to the risk that because of his conduct TH may seek to escape over the balcony of the unit and/or go to the aid of another who was seeking to escape by the same route, and the serious nature of the injuries that TH suffered, I regard the offending as above mid range in objective seriousness and, as such, and despite the plea of guilty and the fact that the offender is remorseful, the imposition of a sentence including a non-parole period slightly longer than the standard non-parole period is warranted.

The remaining offences including those where XX and JH were the victims 87 Neither XX nor JH were sexually assaulted although they were both threatened with harm at knife point as the offender voiced his intentions to have sexual intercourse with them. That conduct attracted a charge under s 61K(b) of the Crimes Act in counts 11 and 15 which carries a maximum sentence of 20 years imprisonment. In imposing sentence on count 11 (the charge involving XX) I also take into account an offence under s 61N(2), namely incite an act of indecency on the Form 1 as detailed in [36] above. The offending, whilst serious given the fact that it occurred whilst the young women were witness to the sexual assaults being committed successively against LW and TH, was momentary and no actual harm was occasioned. 88 Both XX and JH were also robbed at knife point attracting charges under s 97(1) of the Crimes Act which also carries a maximum sentence of 20 years imprisonment. In so far as that offending is concerned, the charge where XX was the victim is marginally more serious than the charge where JH was the victim, since it was the offender's targeting of her as she approached the unit block, and his detention of her in the lift before she gave him $50 at knifepoint as he marched her to the door of the unit, that facilitated the criminal rampage that followed and which culminated in the robbery of $120 from JH before the offender left the unit.

Sentences 89 Brendan David Dennison the sentences I impose are as follows:

In respect of count 4 (a charge of aggravated break and enter with intent to commit an aggravated sexual assault contrary to s 113(2) of the Crimes Act , where each of TH, JH and LW were named as victims being residents of the unit broken into) I sentence the offender to a fixed term of 3 years to date from 29 October 2008 and to expire on 28 October 2011. (The reason that a fixed sentence is imposed for this offence is in order to ensure compliance with the principle of totality in the overall context of the sentencing order in this case.) 2. In respect of counts 16, 17, 18 and 19 (respectively breaches of s 86(1)(b) of the Crimes Act where each of the victims was detained for the purposes of sexual gratification) I impose concurrent and fixed terms of imprisonment of 4 years to date from 29 October 2009 and to expire on 28 October 2013. The fixed term is imposed for this offence for the same stated reason as above.

In respect of count 3 (a charge of armed robbery contrary to s 97 of the Crimes Act where XX was the victim) I sentence the offender to a fixed term of 3 years to date from 29 October 2009 and to be served wholly concurrently with the sentence imposed on Count 4. The fixed term is imposed for this offence for the same stated reason as above. 4. In respect of the balance of the offending where XX is the victim, namely count 11 (threatening her with a knife with intent to have sexual intercourse contrary to s 61K(b) of the Crimes Act ) and after taking into account the offence of inciting an act of indecency on the Form 1, I impose a fixed term of imprisonment of 4 years to date from 29 October 2009 which is to be served concurrently with the sentences imposed on counts 16, 17, 18 and 19. The fixed term is imposed for this offence for the same stated reason as above. 5. In respect of count 10 (a charge of threatening JH with a knife with intent to have sexual intercourse contrary to s 61K(b) of the Crimes Act ) I impose a fixed term of 3 years and 6 months to date from 29 October 2009 and to be served concurrently with the sentence imposed on count 11. The fixed term is imposed for this offence for the same stated reason as above.

In respect of the balance of the offending where JH is the victim, namely count 15 (a charge of armed robbery contrary to s 97 of the Crimes Act ) I impose a fixed term of imprisonment of 4 years to date from 29 October 2009 and to be served concurrently with the sentence imposed on count 11. The fixed term is imposed for this offence for the same stated reason as above.

In respect of count 2 (a charge of recklessly causing TH grievous bodily harm contrary to s 35(2) of the Crimes Act ) I impose a sentence of 7 years comprised of a non-parole period of 4 years and 6 months to date from 29 October 2010 and to expire on 28 April 2015 with a balance of term of 2 years and 6 months to expire on 28 October 2017.

In respect of the balance of the offending where TH is the victim, namely counts 6 and 8 (two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act ), and after taking into account three further sexual offences on the Form 1 in respect of count 6, I impose the following sentences: i. In respect of count 6 a sentence of 12 years comprised of a non-parole period of 8 years to date from 29 October 2011 and to expire on 28 October 2019 and a balance of term of 4 years to expire on 28 October 2023. ii. In respect of count 8 a sentence of 11 years comprised of a non-parole period of 7 years and a balance of term of 4 years to date from 29 October 2011 to be served wholly concurrently with the sentence imposed on count 6. 9. In respect of the offending where LW was the victim, namely six counts of aggravated sexual assault (namely counts 5, 7, 9, 12, 13 and 14) and after taking four further sexual offences on the Form 1 into account in respect of count 13, I impose the following sentences: i. In respect of count 13, I impose a sentence of 14 years comprised of a non-parole period of 10 years to date from 29 October 2016 and to expire on 28 October 2026 and a balance of term of 4 years to expire on 28 October 2030. ii. In respect of counts 5, 7, 9, 12 and 14, I impose concurrent sentences of 12 years for each count, comprised of a non-parole period of 8 years and a balance of term of 4 years to date from 29 October 2016 to be served wholly concurrently with the sentence imposed on count 13. 10. In respect of count 1 (namely the murder of LW) I impose a sentence of 18 years, comprised of a non-parole period of 11 years to date from 29 October 2018 and to expire on 28 October 2029 with a balance of term of 7 years to expire on 28 October 2036. 11. Accordingly, you are sentenced to an effective term of imprisonment of 28 years to date from 29 October 2008 and to expire on 28 October 2036 with a period of 21 years to be served in custody before you are eligible to be considered for release to parole on 28 October 2029. **********

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Aslett v R [2006] NSWCCA 360 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 Pearce v R [1998] HCA 57; 194 CLR 610 Postiglione v R [1997] HCA 26; 189 CLR 295 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 CASES CITED : R v Fernando (1992) 76 A Crim R 58 R v Finnie [2002] NSWCCA 533 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Janceski [2005] NSWCCA 288 R v McEvoy [2010] NSWCCA 110 R v Reyes [2005] NSWCCA 218 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Royall v R [1991] HCA 27; 172 CLR 378

6 I have also been invited to take into account a total of eight offences on three separate Form 1's, one each relating to the deceased and two of the three surviving victims, in accordance with the approach mandated by the Court of Criminal Appeal in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146. These offences comprise a further three counts of aggravated sexual assault, contrary to s 61J and three acts of indecency, contrary to s 61N, each attracting a maximum term of imprisonment of 18 months; one count of indecent assault, contrary to s 61L, attracting a maximum term of imprisonment of 5 years; and one count of inciting an act of sexual intercourse without consent, attracting a maximum term of imprisonment of 20 years, it being an offence charged at common law.

60 He also told Dr Nielssen that while he was unable to remember whether he had taken any drugs on the day of the offending, he had been injecting amphetamine most days the previous week, and had little sleep. 61 On 3 November 2008, after his arrest, he was assessed by Justice Health following his self report of paranoia and auditory and visual hallucinations. No symptoms of mental illness were noted but emotional lability and hyper vigilance were noted. Since his return to custody he has been maintained on methadone, a moderate dose of an antipsychotic medication and an antidepressant. It would appear that his acceptance of methadone in the treatment of his drug addiction is the first time the offender has sought intervention for his drug use. He reported to both Mr Taylor and Dr Nielssen that he has not previously participated in any drug detoxification or drug rehabilitation programs in custody or in the community. It is not clear whether this was because of resistance or intransigence on his part, or whether he has simply been overlooked as a candidate for intervention by custodial or community based services. 62 The offender was assessed by Mr Taylor in March 2009 as having borderline intellectual functioning which, together with instability in his family relations and retarded emotional development, rendered him vulnerable to substance abuse at an early age. I have already noted that in June 2009 he was diagnosed by Dr Nielssen as suffering from a substance abuse disorder but without any pattern of psychotic symptoms consistent with drug induced schizophrenia. Dr Nielssen regarded the offender's consistent account of amnesia for some days before the offences and afterwards as explained by sustained heavy amphetamine use. 63 In his letter to me the offender says he does not remember anything that happened on the day of the offending and that he does not want to remember or know what he did because he is so horrified by what his lawyers have told him is the evidence in the case against him. He does however accept full responsibility for what he has done and asks me to accept that he is deeply sorry for the pain and suffering he has caused each of the victims and their families. 64 Aside from Dr Nielssen's observation that amphetamine use is known to be associated with increased sexual excitement and a propensity to aggressive behaviour, there was no specific evidence tendered as to the precise pharmacological effects of sustained use of "ice" or other amphetamine based drugs over years, or its concentrated use over days or weeks. Rather, I was invited to take judicial notice of the regrettably all too frequent observations of sentencing courts of the link between the effects of this drug and aggressive and often uncharacteristic violent offending, including sexual offending, of which R v Reyes [2005] NSWCCA 218 and Aslett v R [2006] NSWCCA 360 are just two examples. 65 Having regard to the offender's aboriginality and his subjective circumstances I have been invited to apply the principles in R v Fernando (1992) 76 A Crim R 58 when imposing sentence. Given the very grave criminality for which he is to be sentenced I am of the view that these principles have limited application. In the sentences to be imposed for each of the individual sentences I will, however, make some allowance for the fact that after the death of his father and his effective abandonment by his mother at a vulnerable age, he resorted to alcohol and drugs and, despite concerted attempts from the Aboriginal community to counsel and guide him, he became estranged from his community and from his sister and grandparents. He is reported by a family friend as saying that he believed nobody cared for him and with this attitude (borne no doubt from unresolved feelings of abandonment and his youth) he sought the company of offending peers and the anaesthetising effect of drugs. Over the last ten years he has become progressively institutionalised such that he has failed altogether, it seems, to secure permanent housing or employment for the relatively short periods of time he has been at his liberty before drifting back into a cyclical pattern of offending driven by his drug addiction. 66 I am unable to disregard the offender's drug addiction or his habitual use of "ice" in the days before the offending, as wholly irrelevant to an assessment of the overall objective criminality of the offences for which he is to be sentenced. In particular, I regard the range and extent of his sexual offending as likely to be best explained by the effects of "ice", given that his prior record, despite its length, does not indicate any propensity to sexual violence. I do not consider, however, that this mitigates his criminal responsibility for the reign of sexual terror the victims were subjected to, despite the use of the drug being suggestive of opportunism in the sexual offending, given that I regard the robbery of XX, by which he gained entry to the unit, was likely to have been primarily motivated by his need for money to feed his drug addiction and that the robbery of JH was perpetrated upon leaving the unit for the same reason. The fact of his drug addiction is not, however, a mitigating factor per se of any weight in the sentencing exercise. That said, in accordance with the principles articulated by Wood CJ at CL in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [272]-[274], I accept that his capacity for exercising judgment was probably severely compromised by being in the grips of the drug "ice" on the day of the offending, and that the origins of his drug addiction was when he was unable to exercise appropriate judgment or choice because of his youth and family circumstances. 67 In March 2010 Dr Nielssen reported an improvement in the offender's psychiatric condition and his compliance with the pharmacological regime instituted by Justice Health since his remand. While the florid effects of his amphetamine use have abated, excessive concern with his personal hygiene, a likely reaction to his past drug use, was noted. 68 Dr Nielssen was unable to provide any meaningful estimate of the risk of the offender committing further offences upon his eventual release given the likely length of the sentence. He did note, however, that despite the lack of success of previous attempts at custodial rehabilitation, the offender's basic literacy and intelligence places him in the lower half of the normal range of intelligence, rather than in the borderline mentally retarded range, which could assist him to meaningfully participate in rehabilitation programs in custody. He also expressed to Dr Nielssen what Dr Nielssen regarded as sincere remorse and horror at his conduct, which could be the basis for self-reflection and eventual rehabilitation. 69 Despite these views, I am unable to find as mitigating factors under s 21A(3)(g) or (h) of the Sentencing Act that his prospects of rehabilitation are good or that he is unlikely to reoffend.

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