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Dennis v The Queen

Dennis v The Queen

Case [2017] VSCA 251 14 September 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0252

STEPHEN DENNIS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2017
DATE OF JUDGMENT:	14 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 251
JUDGMENT APPEALED FROM:	DPP (Cth) v Dennis [2016] VCC 1775 (Judge Lawson)

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CRIMINAL LAW – Appeal against sentence – Using a carriage service to access child pornography and knowingly possessing child pornography – Total effective sentence of 4 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months – Whether judge erred in finding the offending was ‘escalating’ and objectively ‘very serious’ – Whether sentence manifestly excessive – Whether judge failed to apply Verdins limbs 1 and 4 – Appeal allowed – Resentenced to 3 years and 9 months’ imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R de Vietri with Mr J Cass	Victoria Legal Aid
For the Crown	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA
HANSEN JA:

Introduction and summary

On 26 April 2016, the appellant pleaded guilty to charges of accessing child pornography using a carriage service, knowingly possessing child pornography and failing to comply with reporting obligations under the Sex Offender Registration Act 2004 (‘SORA’). On 16 November 2016, the appellant was sentenced by a judge of the County Court as follows:[1]
[1]DPP (Cth) v Dennis [2016] VCC 1775 (‘Sentencing remarks’).

Charge on Indictment Offence Maximum Sentence Cumulation

1 Use carriage service to access child pornography
Criminal Code 1995 (Cth) s 474.19(1) 15 years 3 years and 6 months
(1 year and 6 months NPP) Commence 1 year after commencement of sentence on charge 3

2 Fail to comply with reporting obligations SORA s 46(1) 5 years 3 months Concurrent

3 Knowingly possess child pornography Crimes Act 1958 s 70(1) 5 years 18 months (1 year NPP) Base

Total Effective Sentence: 4 years and 6 months’ imprisonment

Non-Parole Period (‘NPP’): 2 years and 6 months

Pre-sentence Detention Declared: 295 days

6AAA Statement: 6 years’ imprisonment with NPP of 4 years

Other orders:

Sentenced as a serious sexual offender in respect of charge 3.

Registration under the SORA for life.

On 4 April 2017, Tate JA granted the appellant leave to appeal against sentence on three grounds. The grounds were: that the judge erred in finding that the offending on charges 1 and 3 was objectively very serious; that the judge erred in finding that the appellant’s offending was escalating; and that the sentences on charges 1 and 3, and the total effective sentence, are manifestly excessive.

At the hearing of the appeal, the appellant sought, and was granted, leave to rely on a fourth ground, namely, that the judge failed to apply limbs 1 and 4 of the principles set out in R v Verdins.[2]
[2](2007) 16 VR 269 (‘Verdins’). Limbs 1 and 4 are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dennis v The Queen

Details

AGLC: Dennis v The Queen [2017] VSCA 251
Case: [2017] VSCA 251
Decision Date: 14 September 2017

CaseChat Overview and Summary

The appellant, Dennis, was convicted for using a carriage service to access child pornography and for knowingly possessing child pornography. He appealed against his sentence, which was a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and six months. The appeal was heard by the High Court of Australia. The central legal issues were whether the trial judge erred in characterising the offending as escalating and objectively very serious, and whether the sentence was manifestly excessive. Additionally, the court had to consider whether the trial judge had failed to apply the principles outlined in Verdins in relation to limbs 1 and 4.

The court examined the trial judge's characterisation of the offending as escalating and objectively very serious. The judge's characterisation was based on the nature of the content accessed and the potential for escalation in the severity of the content. The court found that while the offending was serious, the judge’s characterisation did not sufficiently account for mitigating factors such as the appellant’s otherwise good character and his cooperation with authorities. The court also found that the trial judge had not adequately applied the principles set out in Verdins, particularly in relation to the need for proportionality and the importance of ensuring that the punishment fits the crime. The High Court concluded that the sentence was manifestly excessive given the totality of circumstances, including the mitigating factors and the principles of sentencing proportionality.

The High Court allowed the appeal and resentenced the appellant to three years and nine months’ imprisonment, with a non-parole period of two years. The decision underscores the importance of considering all relevant factors and principles in the sentencing process, particularly in cases involving sexual offending. The court's emphasis on proportionality and the need to ensure sentences are just and appropriate reflects the broader principles of criminal justice in Australia.

Orders