R v Dunne [2003] VSCA 150

R v Dunne [2003] VSCA 150 - VSCA 2003 case summary — Zoe

[27]

Counsel for the appellant advanced two submissions under this ground.[4] It was first submitted that the assessment of the appellant's total criminality had been inflated by reference to matters which had not been charged: his Honour had acted on the submissions made by the prosecutor in the course of the plea and in effect treated the counts as representative in nature when they were not. Now, it is true that during the plea the prosecutor had stated that for practical purposes there was not really any great distinction between the case of representative counts and the instant case. It is probably true, too, that during the plea his Honour, although warning against turning the 31 counts into de facto representative counts, had suggested in some observations he made that that could, in effect, be done or that the appellant could be sentenced for a course of conduct including the uncharged offences. But, when he came to sentence the appellant five days later, I am of the opinion that the judge did not sentence as though the 31 counts were representative or otherwise use the uncharged offences impermissibly. Rather, he made it clear that the uncharged acts did not aggravate but simply prevented the extension to the appellant of leniency[5], because they showed that count 8 was not the only occurrence of sexual penetration and that the other 30 counts could not be suggested to constitute the totality of indecent assaults committed upon the victim. It is true that in the first of the two passages that I have set out under this ground, his Honour used the word "context"[6], but there was no error in that. For, in the determination of the appropriate and just effective sentence for the 31 counts, the fact of the commission of numerous other offences during the same period was relevant and admissible: it enabled a more realistic assessment to be made of the nature, degree and true significance of the criminality involved in the 31 offences and of the level of the appellant's personal responsibility. It showed, too, that they were not the offences of a person of otherwise good character[7]. To have regard to this "context" is not to sentence the appellant for the uncharged acts. These matters are explained in Weininger v. The Queen[8]

[29]

It may well have been open to the sentencing judge to conclude beyond reasonable doubt that the total number of assaults committed by the appellant upon the victim numbered in the hundreds. Counsel for the appellant and counsel for the respondent both informed us that there was material on which his Honour could so find and counsel for the appellant also stated, in answer to a question from the Bench, that the total of all the offences as being in the hundreds had not been specifically challenged though points had been made bearing on that. In their judgment in Weininger[10] Gleeson, C.J., McHugh, Gummow and Hayne, JJ., having referred to the fact that at first instance counsel for the prosecution tendered, without objection, a statement of facts, stated that, there having been no objection to its receipt, the primary judge was entitled to act on the facts described in the statement. Later their Honours said[11] that it may well have been open to the sentencing judge to conclude beyond reasonable doubt that the appellant had previously been knowingly concerned in the importation of cocaine, one of the offences to which he pleaded guilty, and that the statement of facts provided a sound basis for that conclusion. Their Honours then said that such a conclusion would have entitled the primary judge to take it into account as a matter warranting the imposition of a heavier sentence than might otherwise have been imposed. In the present case corresponding observations can be made, for there was no objection to reliance upon the victim's statement, which formed part of the hand-up brief[12] and was accordingly available to the sentencing judge. Moreover, it seems reasonably clear from Professor Ogloff's report, based on his interview of the appellant, that the appellant substantially agreed, on the question of the totality of the offences, with what the victim had stated; for Professor Ogloff stated, "For the most part, [the appellant's] version of the offences corresponds closely to the details the victim presented in his 68-page statement to the police." (The Professor then mentioned two points, not insignificant, but presently immaterial, on which the appellant disagreed with the victim.) Later, Professor Ogloff stated that the appellant "repeated the acts on many, many occasions over three years". It could, then, be said that, if the judge's finding was only on the balance of probabilities, he could and should have made it beyond reasonable doubt, thereby enabling the fact to be used adversely to the appellant in the way indicated in Weininger. But the sentencing judge did not seek to do this and the matter need not be pursued.

[34]

The first specific consideration is the argument based on s.6D(a). That argument, if carried to its logical extreme, would result in offenders with good prospective or achieved rehabilitation not being incarcerated at all or at any rate (since the provision relates to imprisonment) for a very short time. Counsel disavowed any such result. In my opinion, s.6D(a) does not in a case such as the present exclude the sentencing purposes that would have been particularly applicable had the provision not been passed, namely, denunciation, general deterrence and just punishment. Counsel appearing for the appellant below had acknowledged that denunciation, just punishment and general deterrence had a role to play, and counsel for the appellant before us recognised that, notwithstanding s.6D(a), general deterrence had a part to play in the sentencing of the appellant. This must be so, for s.6D pre-supposes a determination under s.5 (which, importantly for present purposes, includes the list of sentencing purposes) that imprisonment is justified and sets out provisions directed to the determination of the length of imprisonment. Further, paragraph (a) of the section makes the protection of the community from the offender the principal, not the sole, purpose for which the sentence is imposed. Again, the cases confirm the view which I have expressed. R. v. MWH[15] recognises that just punishment and general deterrence are applicable in the case of a reformed offender falling to be sentenced as a serious sexual offender. In D.P.P. v. Riddle[16], in a passage which appellant's counsel accepted as correct when he was asked about it by the Bench, Vincent, J.A. stated that the principles of just punishment, public denunciation and general deterrence assume considerable significance in cases such as the present. A like statement occurs in the judgment of Chernov, J.A.[17] As to the submission that his Honour had downgraded rehabilitation whereas s.6D(a) here meant that far greater weight should have been given to it, I do not agree. Imprisonment is a way of protecting the community from an offender who has achieved considerable, but not complete, rehabilitation, and the gravity of these offences, with the breach of trust and abuse of power over a three year period that they involved, meant that condign punishment in the form of a substantial term of imprisonment was required.

[51]

(i) the early plea of guilty, sparing the victim cross-examination;

(ii) compelling expressions of remorse that were independent of the plea of guilty and came from multiple sources, including a recorded telephone conversation between the victim and the appellant and the appellant's interview with Professor Ogloff;

(iii) that the appellant was shown by sworn evidence and the testimonial references to be of exemplary prior and subsequent character, not merely that he had no prior convictions;

(iv) the clear evidence that the appellant and his family had suffered a devastating impact, with his career terminated (a matter I have already discussed);

(v) the fact that the appellant ceased offending without intervention[28] and then had a friendship with the victim with no allegation of physical or verbal threats during that time, reference being made to his Honour's acceptance of Professor Ogloff's view that the appellant had not set out to groom his victim and of the fact that he would have had difficulty in getting help at the time;

(vi) the judge's acceptance of the view that the appellant did not pose any real risk to the community.

Reference was made in the appellant's written outline to the nature of his incarceration. In addition, the court was urged to temper the victim impact statement and accompanying psychologist's report and in that regard counsel cited the statement by Hayne, J. in Ryan[29] of the accepted proposition that sympathy for the offender's victims cannot be allowed to cloud the sentencer's vision. Counsel then referred the court to a half dozen or so cases of sentences on facts said to be comparable which, it was said, by reason of the duration of offending, the number of victims and the absence of pleas of guilty in those cases showed that the sentence here was manifestly excessive. (Counsel for the respondent had when the appeal was called on handed up the list of cases said to be comparable that had been handed by the prosecutor to the sentencing judge.)

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