Dennis William Newall v The Queen
[2015] VSCA 250
•16 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0054
| DENNIS WILLIAM NEWALL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 September 2015 |
| DATE OF JUDGMENT: | 16 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 250 |
| JUDGMENT APPEALED FROM: | DPP v Newall (Unreported, County Court of Victoria, Judge Gucciardo, 20 February 2015) |
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CRIMINAL LAW – Appeal – Totality – Appellant sentenced in 2002 for kidnapping and rape of one victim – Sentence completed – Appellant sentenced in 2015 for kidnapping and rape of two other victims which were part of a series – Sentenced to 13 years’ imprisonment with non-parole period of 11 years and 6 months – Appeal allowed – Appellant resentenced to a total effective sentence of 11 years with a non-parole period of 9 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST J
BEACH JA:
Introduction
Pursuant to leave granted by Priest JA ‘on the papers’ on 23 June 2015, the appellant appeals against a total effective sentence of 13 years’ imprisonment, with a non-parole period of 11 years and six months’ imprisonment, imposed upon him for kidnaping and rape.
For the reasons that follow, we would allow the appeal.
Plea, sentence and grounds of appeal
On 29 January 2015, the appellant pleaded guilty in the County Court to the kidnapping[1] and rape[2] of ‘SP’ (charges 1 and 2), and to the kidnapping and rape of ‘SB’ (charges 3 and 4), in a period between November and December 2001.
[1]Common law. Pursuant to s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.
The judge sentenced him on 20 February 2015 to be imprisoned for 13 years, with a non-parole period of 11 years and six months, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Kidnapping – Complainant ‘SP’ (between 9 — 30 November 2001)
8 years
6 months
2
Rape – Complainant ‘SP’ (between 9 — 30 November 2001)
10 years
2 years[3]
3
Kidnapping — Complainant ‘SB’ (6 December 2001)
8 years
6 months
4
Rape — Complainant ‘SB’ (6 December 2001)
10 years
Base
Total effective sentence
13 years’ imprisonment
Non-parole period
11 years’ and six months’ imprisonment
Pre-sentence detention
Nil
Section 6AAA declaration
14 years’ imprisonment, with non-parole period of 12 years and 6 months.
Other Orders
· Sentenced under Part 2A of the Sentencing Act 1991 as a serious sexual offender in respect of charges 2 and 4.
· Lifetime reporting under s 34 of the Sex Offenders Registration Act 2004.
[3]The appellant was sentenced as a serious sexual offender on charge 2, but the judge ordered cumulation of two years of the sentence on charge 4, rather than concurrency. Strictly speaking, to accord with s 6E of the Sentencing Act 1991, the judge should have ordered concurrency, not cumulation.
Aaron Newall, the appellant’s son, pleaded guilty before a different judge in the County Court to one charge of kidnapping relating to SP.[4] Very significantly, he gave the Court an undertaking to give evidence against his father. On 11 December 2014, he was sentenced to six months’ imprisonment, wholly suspended for 12 months.[5]
[4]This charge related to the events embraced by charge 3.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that, but for his plea of guilty, she would have sentenced him to two years’ imprisonment with a non-parole period of one year.
The appellant’s grounds of appeal are:
1. The sentencing judge erred by failing to give enough weight to the principle of totality, in particular —
(a) the sentencing judge failed to sufficiently moderate the individual sentences,
(b) the sentencing judge ought to have ordered that the head sentence, or part of it, be served concurrently with the sentence the appellant was then serving, and
(c) the sentencing judge failed to sufficiently moderate the new non-parole period.
Prior offending
On 30 November 2001, the appellant and Aaron Newall kidnapped a street sex worker, ‘AS’, in St Kilda and took her to a converted bus in the outer Melbourne suburb of Brooklyn. There the appellant repeatedly raped her, by penetrating her mouth and vagina with his penis and by inserting a finger into her anus. AS complained to police, and the appellant and his son were charged. The appellant pleaded guilty in relation to the offending, and, on 11 December 2002, was sentenced in the County Court to be imprisoned for eight years, upon which a non-parole period of six years was fixed (‘the AS sentence’).[6] He was released on parole in February 2009, and the sentence expired in December of that year.
[6]Leave to appeal against this sentence was refused. See R v Newall (Unreported, Court of Appeal, Charles JA, 20 February 2004).
Less than two years after release on parole on the AS sentence — in early September 2010 — the appellant committed further sexual offences[7] in Karatha, Western Australia. On 9 February 2012, he was sentenced on those offences to be imprisoned for seven years and six months’ imprisonment, with a non-parole period of five years and six months (‘the WA sentence’). The appellant is currently undergoing that sentence. In the ordinary course, the earliest release date under the WA sentence would have been 17 April 2017, with the sentence expiring on 17 April 2019. As will later be seen, the position with respect to the WA sentence has now become somewhat complicated.
[7]Two charges of attempted sexual penetration without consent and five charges of sexual penetration without consent.
The subject offending
This appeal relates to sentences imposed for the offending against SP and SB, which occurred at about the time of the offending against AS to which we have earlier referred.
SP and SB were — as was AS — both street sex workers in St Kilda. They were aged 27 years and 20 years respectively at the time of the offending. The appellant was aged 42 years at that time. He was aged 57 years at the time of the sentence under appeal.
As we have mentioned, the offending against SP and SB occurred at about the same time as that involving AS, in November and December 2001. In his reasons for sentence, the sentencing judge adequately described the events relevant to the present appeal:
… [SP] was working the St Kilda area [and] was approached by you. You came to a verbal agreement about sexual intercourse for $100 with the only stipulation being that you wanted to pick the location. She got into a car and was driven to an industrial estate in South Melbourne. You paid her the money and an unknown male appeared from under a blanket in the back seat. She was told to get in the back, put the blanket on her and not to look. She was told to do everything you said and she would not be hurt.
You drove her to a motor vehicle tyre service in Brooklyn. This is the foundation for Charge 1 of kidnap. You let her inside the bus which was parked there which belonged to you and you had converted it into living quarters including a kitchen and a bedroom.
Once inside you removed the blanket from her head. You pointed out a machine which you were completing. You told her how this revolting device worked to penetrate a woman’s vagina whilst you penetrated her anally.
[SP] said that at one stage she got onto this contraption which was photographed by police and can be viewed in the depositional material. She begged you that she would do what you wanted but not to hurt her. You then penetrated her vaginally, penetrating her mouth and her anus with your penis.
She had never performed anal sex with clients. This was Charge 2 of rape.
You asked her to rate your performance and asked for her name. You told her you knew her from Queensland and then your attitude changed suddenly.
The complainant repeatedly asked if she could leave and after two hours you agreed. She was driven again for ten minutes with a blanket on her. She asked not to have the blanket on her and an unknown offender gave back her bag. Fifty dollars of the $100 you had given her was stolen from her. She became upset and teary and accused you of robbing and raping her. She was dropped at a service station in the St Kilda area.
You then had the gall to ask her for her phone number. She gave a number to you which you rang straight away for purposes of intimidation. You threatened that you knew where she lived.
When [SP] was dropped off she complained to a friend and filled in a written report to warn others in that area. When she was able to be drug free in 2011 she finally reported this matter to police.
…
[SB] had been taken a week after the kidnapping of [AS]. You told your son that you were going for a drive and later to get into the boot of the Statesman you drove. The victim was terrified of you. You told your son in no uncertain terms to ‘get into it’.
On the evening of 6 December 2001 you approached [SB]. She got into the car and you drove to a car park in Albert Park. You paid the agreed price in cash and told her to get into the back seat. You then turned the car engine off, got out of the car and opened the boot. Your son got into the back seat next to her, preventing her on one occasion from leaving the car, and at another point you restrained her and you told him to put a pillowcase over her head. You screamed orders to her. The complainant was in fear for her life.
Then you drove to the Brooklyn address with the complainant still hooded by a pillowcase. You opened the bus and called your son to bring her into the bus which he did. Once in the bus you told her to get on the mattress which was in the middle of the floor. You removed the pillowcase from her. She got onto this mattress. You poured lubricant all around her vagina. You grabbed her by the top of her hair and forced her onto her stomach. Before penetrating her vagina you poured lubrication over her anus and penetrated her. She was in pain. She also had never had anal intercourse before.
You then asked your son if he wanted to do the same but he resisted. You then told her to get dressed and not to tell anyone and if she did you would come back and ultimately ‘get her again’.
The victim ultimately managed to get home. She did not report the offending at that time to the police.
The WA sentence
As earlier mentioned, in September 2010 the appellant committed a number of sexual offences against a woman in Karatha, Western Australia.
On 9 February 2012, in the District Court of Western Australia, the appellant was sentenced to be imprisoned for seven years and six months, with a non-parole period of five years six months, such sentence being ordered to commence on 18 October 2011.[8] As earlier observed, the appellant would ordinarily have been eligible for parole pursuant to the WA sentence on 17 April 2017, and it would have expired on 17 April 2019.
[8]Originally the appellant faced nine charges, but was sentenced on seven charges. The individual sentences were as follows:
Charge 1 –2 years’ imprisonment
Charge 2 –2 years’ imprisonment
Charge 3 –3 years’ imprisonment
Charge 4 –4 years’ imprisonment
Charge 6 –2 years and 8 months’ imprisonment
Charge 7 –2 years and 8 months’ imprisonment
Charge 9 –3 years and 6 months’ imprisonment.
So as to permit the prosecution of the offences against SB and SP, however, the appellant was transferred to Victoria on 22 May 2014. By virtue of s 27 and s 28 Prisoners (Interstate Transfer) Act 1983, the WA sentence was thus deemed to have been imposed in Victoria. At the time of his transfer, there were two years and almost two months left to run on the non-parole period of the WA sentence, and four years and almost two months of the head sentence remaining.
The appellant’s submissions
The appellant submitted that the principle of totality required the sentencing judge to moderate the present sentence in order to take into account the AS sentence and the WA sentence. The fact that the appellant was sentenced as a serious sexual offender did not extinguish the application of the principle of totality.[9]
[9]Beyer v The Queen [2011] VSCA 15, [14]–[15].
So far as the AS sentence was concerned, it was submitted that, because the appellant had completed serving the AS sentence, he had lost an entitlement to significant concurrency between that sentence and the present sentence that would have existed if he had been dealt with for all offences at the same time’.[10]
[10]Mill v The Queen (1988) 166 CLR 59, 66–7.
As to the WA sentence, it was argued that the sentencing judge was required to take into account the fact that, because of the operation of s 6E of the Sentencing Act 1991, the appellant would not commence serving the present sentence until the WA sentence expired in about four years and two months. Totality, it was submitted, required moderation of the severity of both the head sentence and new non-parole period.
The appellant contended that, in imposing sentence the sentencing judge said that he had taken the AS and WA sentences into account, but ‘did not specifically explain how he had moderated the severity of the index sentence in order to do so’, so that ‘the question of whether the sentencing judge took sufficient account of these other sentences must be answered through analysis of the sentencing orders’. No moderation of the individual sentences, or the degree of concurrency ordered, or of the length of the non-parole period, is capable of being discerned.
The respondent’s submissions
Two implicit assumptions, the respondent submitted, underpin the appellant’s contentions. First, it seems to have been assumed that, had the sentences on the present offences been imposed at the same time as the AS sentence, then lesser sentences would have been imposed on each charge and significant cumulation would have been ordered. Secondly, it is assumed that the present sentences are cumulative on the WA sentence because of the operation of s 6E of the Sentencing Act 1991.
Contrary to the first of those implied assumptions, however, the respondent submitted that the individual sentences imposed by the sentencing judge would have been appropriate if all the sentences were imposed at the one time. It was submitted that, whilst the offending involving AS, SP and SB occurred over a relatively short time, it was important to note that there were three separate complainants and that the offences in relation to each was a separate and distinct episode, in circumstances where each individual offence was serious and clearly very distressing to each complainant. Thus, so it was argued, a significant sentence was called for in respect of each charge, so as to properly reflect the culpability of the appellant in circumstances of persistent serious offending.
When the judge came to sentence the appellant for the present offences, there were, the respondent submitted, significant subsequent sexual offences which had been committed in Western Australia. Thus, prospects of rehabilitation and community protection could not be ignored. It followed that the sentencing exercise confronting the judge was not that which would have confronted a sentencing judge exercising jurisdiction at the same time as the AS sentence. The respondent argued that, just as it would be relevant where there is delay to take into account positive evidence of rehabilitation to reduce the sentence that might otherwise have been imposed, ‘it must be relevant when the subsequent evidence shows the opposite’. During the delay further serious sexual offences were committed, and psychological opinion was that the appellant’s risk of reoffending was ‘high’ or ‘moderate high’. Moreover, the appellant was to be sentenced as a serious sexual offender, so that protection of the community is a dominant purpose in imposing sentence.
As to the second of the appellant’s implied assumptions, the respondent argued that the sentencing judge did not — as was contended by the appellant — permit total cumulation between the WA sentence and the present sentence.[11] In fact, the respondent submitted, s 6E of the Sentencing Act 1991 has no operation, because the judge ‘has effectively ordered concurrency [on the WA sentence] without using that word’.
[11]Information presently available suggests that the appellant’s earliest release date is 19 August 2026, and that his sentence expires on 19 February 2028, which tends to support the respondent’s submission on this aspect.
Finally, it was submitted that the sentences are ‘within range and show no error’.
Analysis
The appellant’s offending in relation to SP and SB — and the offending in relation to AS for which he was sentenced in 2002 — was vile. It was wicked, depraved, cunning and planned, and calculated to provoke great fear in, and grave humiliation to, the victims.
Moreover, the commission of the WA offences tends to demonstrate that the appellant’s ugly and degenerate characteristics were not curbed by the sentence earlier imposed by the County Court. We would adopt the observations of Priest JA when granting leave to appeal:
The [appellant’s] history of sexual offending engenders little optimism for his prospects of rehabilitation. There is much to be said for the judge’s assessment of those prospects as ‘bleak’. Moreover, I would not be prepared to infer a high level of remorse.
Further, in my opinion the [appellant] poses a significant risk of reoffending. Despite the suggestion that the [appellant’s] risk of reoffending may be ‘moderate high’, I would regard it as ‘high’, notwithstanding the report of Mr Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, dated 28 January 2015, where he said of the [appellant] —
In my opinion his score on the [Risk for Sexual Violence Protocol] would place him in the high risk category, although his statements about what he has recently learnt through participating in the intensive sex offender treatment program may now reduce his overall risk to moderate high.
We are driven to conclude, however, that in imposing sentence in the present case, the judge did not properly apply the principle of totality vis-à-vis the sentence imposed in December 2002 for the offences against AS. As a matter of naïve arithmetic, the aggregation of the present total effective sentence and non-parole period on the 2002 sentence would have — had they been imposed at that time — equated to a total effective sentence of 21 years with a non-parole period of 17 years and six months. Although we think that, had sentence been imposed for the offending on SP and SB at the same time as sentence was imposed for the offending on AS, the resulting sentence would have been substantial, we cannot conclude that it would have been in the notional order of 21years with a 17 year and six month non-parole period. Indeed, our distinct impression is that the length of the sentence would have been a deal less. In our view, the appellant has thus made good those aspects of the ground of appeal which assert that the sentencing judge ‘failed to sufficiently moderate the individual sentences’, and ‘failed to sufficiently moderate the new non-parole period’.
When the appellant was sentenced in 2002 for the offences against AS, the judge imposed individual sentences of four years’ imprisonment for kidnapping, and respectively four years’, six years’ and two years’ imprisonment for the three counts of rape. Two years of the sentence for kidnapping was made cumulative on the sentence of six years’ imprisonment on the second count of rape, leading to a total effective sentence of eight years’ imprisonment, upon which a non-parole period of six years’ imprisonment was fixed. As we have mentioned, the offences involving AS were committed at the same time, and in comparable circumstances, to the offences involving SP and SB. The three sets of offending were very closely connected temporally (and were equally contemptible).
It is, of course, impossible to effectuate the same symmetry as might have been achieved had the appellant been sentenced for the present offences in 2002; and it must be recognised that the application of the principle of totality in the circumstances must necessarily therefore be somewhat imprecise. Doing the best we are able in the circumstances, however, in our view principle dictates that the individual sentences on each charge should be more moderate than those imposed by the sentencing judge at first instance, and the orders for concurrency or cumulation should be different.
The respondent accepted that the appellant fell to be sentenced as a serious sexual offender on charges 2 and 4.[12] Thus, we will endeavour to sentence the appellant in accordance with Part 2A of the Sentencing Act 1991 (‘the Act’); in particular, paying due heed to the fact that the principal purpose for which sentence is imposed on a serious offender is community protection.[13] We will also not disturb the order that the appellant’s status as a serious sexual offender on charges 2 and 4 be entered in the records of the Court.
[12]See s 6B(1) and s 6C of the Act.
[13]Section 6D(a).
Conclusion
In light of the foregoing, we will allow the appeal and set aside the sentences of imprisonment imposed in the County Court. We will instead impose sentences of six years’ imprisonment on each charge of kidnapping (charges 1 and 3), and eight years’ imprisonment on each charge of rape (charges 2 and 4). The sentence on charge 2 will be the base sentence. We will order that one year each of the sentences on charges 1 and 3, be served cumulatively with the sentence on charge 2; and that seven years of the sentence on charge 4, be served concurrently with the sentence in charge 2.[14] The total effective sentence is thus 11 years’ imprisonment. We will fix a non-parole period of nine years. Insofar as it may be necessary to do so, we would order that the total effective sentence we impose be served concurrently with any uncompleted sentence being undergone. Our overall intention is reflected in the following table:
[14]We acknowledge that, by virtue of s 6E, every term of imprisonment imposed on a serious offender for a relevant offence must be served cumulatively on any uncompleted sentence of imprisonment imposed on the offender ‘unless otherwise directed by the court’; but that in other cases, s 16(1) generally requires that every term of imprisonment imposed on a person by a court must be served concurrently with any other completed sentence, ‘unless otherwise directed by the court’. Strict adherence to the legislative regime is, as a result, rendered extremely clumsy and prone to error.
Charge
Offence
Sentence
Concurrency/
Cumulation
1
Kidnapping – Complainant ‘SP’ (between 9 — 30 November 2001)
6 years
1 year cumulative
2
Rape – Complainant ‘SP’ (between 9 — 30 November 2001)
8 years
Base
3
Kidnapping — Complainant ‘SB’ (6 December 2001)
6 years
1 year cumulative
4
Rape — Complainant ‘SB’ (6 December 2001)
8 years
7 years concurrent
Total effective sentence
11 years’ imprisonment
Non-parole period
9 years imprisonment
We will declare appropriate pre-sentence detention, and, except as aforesaid, will confirm all other orders and declarations made by the County Court.
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0
3
0