Director of Public Prosecutions v Dempsey

[2019] VCC 317

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02108

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW DEMPSEY

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2019
DATE OF SENTENCE:	15 March 2019
CASE MAY BE CITED AS:	DPP v DEMPSEY
MEDIUM NEUTRAL CITATION:	[2019] VCC 317

REASONS FOR SENTENCE
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CRIMINAL LAW SENTENCE – Sexual penetration of a child under the age of 16 years – Indecent act with a child under the age of 16 years – 15 year old victim – Offender 33 years old at time of offending – Offending planned – No prior convictions – No subsequent offences – Good prospects of rehabilitation – Term of imprisonment – Non-parole period. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	OPP
For the Accused	Ms F. Todd	Go To Court Lawyers

HIS HONOUR:

1Andrew Dempsey, you have pleaded guilty to two charges of sexual penetration of a child under 16, and one charge of an indecent act with a child under 16.  The maximum penalty that applies for each of these offences at the relevant time is ten years' imprisonment.

2The circumstances of your offending are set out in the prosecution opening, which was Exhibit A on your plea.  Exhibit A forms part of the reasons for this sentence.  Your offending took place over 31 January 2012 and 1 February 2012.  You were 33 years old at the time of the offending, the victim was
15 years old.

3Your victim was attending secondary school in the south eastern suburbs of Melbourne.  You met her online through the Tumblr social media website and came to communicate with her via private messages.  These messages became increasingly sexual in nature, including you sending images of yourself masturbating and her sending naked images of herself.  During the course of these conversations, it was decided that you would travel from your home in New South Wales to visit the victim.

4On 31 January 2012, you met the victim at a local park.  It was not alleged that you were aware of her age before this point.  In the park, you gave her three small bottles of alcohol.  At some stage, whilst in some bushland in the park, after unsuccessfully attempting penile-vaginal intercourse you placed your penis in her mouth, this is Charge 1.

5You met your victim the next day at a local shopping centre.  She was wearing her school uniform at the time, you went with her to a hotel room nearby where you got her to sit on top of you, and you performed oral sex upon her, by licking her vaginal area.  This is Charge 2.

6She then recalls placing a condom on your penis, and you climbed on top of her and penetrated her vagina with your penis.  Charge 3.

7The victim recounted that the sexual intercourse was painful and that she could not object to your conduct as she felt frozen and unable to speak.  You maintained contact with her online, until either late February 2012 or early March 2012.  On 4 May 2016, the victim engaged you in a pre-text conversation.  During this conversation, you made partial admissions that you and the victim had kissed, and, "Done some stuff as well".

8On 5 October 2017, you attended the Maitland police station for the purposes of an electronic interview with police.  During this interview, you made admissions to knowing the victim online.  You cooperated with police and made admissions to much of the conduct the subject of your plea.

9The effects upon your victim have been devastating.  Her victim impact statement was read to the court.  Her psychological vulnerability at the time of the offending must have been apparent to you to some degree.  Your offending has triggered a cascade of anxiety, depression, and feelings of low self-worth in your victim, that have progressively and incrementally affected her wellbeing in a variety of ways.

10She stated that she suffers post-traumatic stress disorder.  The impact she attributes to your offending could be described as severe.  She feels that her life had a lot more potential prior to your offending, and that she will never live up to her goals or fulfil her dreams.  For her, your offending on 31 January and 1 February in 2012, as well as the surrounding circumstances, and the resulting trauma, are the defining events of her life.  She sees her future as dismal.  Hopefully, with appropriate support and assistance, and the passage of time, she will find within herself the strength to move beyond her current despair.

11It was advanced by the prosecution and conceded by your counsel on your behalf, that general deterrence and denunciation were significant sentencing factors in your case.  This must be so.  The protection of children lies at the heart of the sanctions imposed for your conduct.  Your victim was vulnerable and ill-equipped to deal with your overtures, first online, and then in person.  You and your victim found some common ground in your initial online discussions.  However, you were 33 years of age, compared to her 15 years.  This power imbalance provided you with the capacity to manipulate your victim.  At your meetings, this imbalance allowed you to satisfy your sexual objectives, whilst your victim froze.

12I accept your counsel's submissions as to the relatively brief compass of your offending, compared to other types of offending of this nature, and the absence of aggravating features also often found in like cases.  An important aspect of the sentences I impose is aimed at the deterrence of others, no matter how socially isolated, inept, or deluded, from establishing sexual liaisons with minors.  Another important aspect of the sentences I impose is the denunciation on behalf of the community of adults engaging in sexual liaisons with minors in these circumstances.

Personal Circumstances

13Turning to your personal circumstances.  In a thorough and helpful plea on your behalf, your counsel, Ms Todd provided me with a summary of your life experiences and made pertinent submissions as to mitigation of sentence.  You are now 40 years old, having been born in Newcastle in 1978.  Your father was from New South Wales. He met your mother whilst he was visiting Japan in the early 70's.  Your mother is Japanese and migrated to Australia in 1974.

14Your mother suffered a severe form of obsessive-compulsive disorder (‘OCD’).  Your parents lived and worked in the Australian Capital Territory, however, prior to your birth, they temporarily relocated to New South Wales, due to perceived contamination of the home, and perhaps, the ACT in general.  After your birth, the family returned to the ACT where you remained until the age of 5.  You have a brother, Anthony, 38 who you see once or twice a year.

15Your parents divorced when you were approximately 16 years of age.  You lived with your father.  Your mother lived intermittently between Japan and Australia.  Your father remarried in 1996.  Your mother eventually returned to Japan for good, but unfortunately, she became gravely ill with cancer.  She died from the disease in 2011.  You helped care for her during her illness.  Her loss was devastating for you, understandably, and her long illness and your grief, no doubt contributed to the symptoms of depression you experienced in the years leading up to this offending.

16Your mother's severe OCD had ramifications for your development.  Your family moved numerous times in order to avoid your mother's perceived contamination of your home.  She required you to take extended showers several times a day, in order to avoid contamination.  She showered you until a late age, which made you feel very uncomfortable.  You were unable to invite friends to your home, your schooling was affected, your ability to form friendships and lead a normal childhood was severely restricted.

17Symptoms of OCD manifested in you from a young age.  By early high school, you exhibited the full range of symptoms of the disorder.  In a report dated 7 March 2019, psychologist Patrick Newton has no difficulty in making a formal diagnosis of OCD.  He notes that this is a severe anxiety disorder.  Examples of its effects in your case, are set out at paragraphs 33 to 35 of his report.

18I accept that this condition has had a profound effect on your development and life experience.  It has caused you severe distress.  It has contributed to significant social anxiety, which has in turn led to significant social isolation.  I also accept that you have experienced depression in the years leading up to the offence and subsequent.  I will return to the report of Mr Newton in more detail when I deal with the issue of hardship in custody, and other matters raised.

19It was submitted on your behalf that your OCD and its sequelae goes some way to explaining your offending, and that it provides a meaningful context for it.  I accept this.  In particular, I rely upon and accept Mr Newton's observations as to your intense social anxiety.  He describes the social anxiety of the disorder, and its relevance as a background to this offending, having its origins in internet-based activities.  I also accept his remarks under the heading, "Sexual Adjustment".  In particular, he states,

"The main issue identified with regards to Mr Dempsey's sexual adjustment was the extent to which he allowed the interpersonal neediness caused by his depression and his chronic loneliness and isolation, to cloud his judgement regarding sexual boundaries.  Thus, by his own admission, he was more intent on making contact with the complainant, assuaging his own loneliness, and gratifying his own sexual desires, and with ensuring that she was of age to participate appropriately in the sexualised interactions that were occurring".

20You started your secondary schooling at Irrawang High School and completed it at Koori Koori High School.  The shift in schools arose due to your mother's obsession with contamination.  As already noted, your schooling suffered due to your condition.  You completed the open foundation bridging course for university entry at the University of Newcastle.  You commenced a Bachelor of Arts at the University of Newcastle in 2002, finishing in 2005, studying film.

21You have worked in various occupations over the years, as set out in Exhibit 1, which is Ms Todd's outline of submissions.  In recent years, you appear to have been occupied, mainly at home, in pursuit of a writing career.  I accept that the features of your disorder that have led to social anxiety and isolation have likely impacted upon your choices and opportunities regarding your work life.

22Turning to matters in mitigation.  I am satisfied that you have genuine and appropriate contrition and remorse for your offending.  You made substantial admissions, although you hedged somewhat on the question of your knowledge of the victim's age.  You have pleaded guilty at the earliest opportunity.  You are entitled to a significant discount for the utilitarian value of your plea.  I also accept that your plea is reflective of what I find to be genuine remorse.

23Mr Newton notes your history of depression and observes that your depression intensifies your interpersonal neediness.  He notes with concern your suicidal ideation and opines that you are at heightened risk for impulsive acts of
self-harm.  This concern is amplified in the reference from Shane Conserdyne.  This is your first time in custody, and you are vulnerable due to your condition and severe anxiety.

24It is uncontroversial that your severe OCD will create particular difficulties in a custodial setting.  Your experience in custody will be harsher, given your condition, than if it were otherwise.  I accept the matters summarised at paragraphs 56 and 57 of Mr Newton's report on this issue.  I also accept that there is a serious risk that imprisonment will have a significant adverse effect upon your mental health.  I also take into account that you will be incarcerated in Victoria, and that due to your father's advancing years, you are unlikely to have regular or perhaps any visitors.  This fact will add to your isolation.

25You have no prior convictions or pending matters.  I accept that you do not display cognitions that support the offending behaviour, nor paraphilic disposition.  Your post-arrest conduct, up to and including your acceptance of remand in custody last Wednesday, is consistent with your accepting responsibility and having shame for, and appropriate understanding of, your wrongdoing and its effects upon your victim.

26Since being charged, you have sought psychological counselling.  You have sought to address your severe anxiety and associated OCD.  You have attended psychologist Francis Dunn on 14 occasions and have been
well-engaged in that process.  Your mental health issues are treatable, and you have demonstrated a capacity and willingness to attend such treatment.  You are an intelligent man; you have completed a tertiary qualification.  You have the support of your father, from whom I received a letter of support.

27For all these reasons, including your pleas in remorse, I find that your prospects of rehabilitation are good.  Mr Newton has found that you fall within a category of being a moderate risk of recidivism.  Considering this finding, and the reasons for it, together with all of the material before me, I remain of the view that your prospects are at least good.  My impression based on all of the evidence before me, is that specific deterrence is not a significant factor in your case.

28As stated by me on the plea, your intelligence, your remorse and contrition, combined with the salutary experience of a prison term, leads me to conclude that you are extremely unlikely to offend in a like manner again.  As I will impose sentences of imprisonment on Charges 1 and 2, you will be sentenced as a serious sexual offender on Charge 3.  I make that declaration and direct that it be entered into the records of the court.  As such, I have had regard to the protection of the community as required.  I was not urged to impose a disproportionate sentence, and I do not do so.

29There is a presumption of cumulation where Charge 3 is concerned, however, I have also had regard to the principle of totality as required.  Charge 3 will be the base sentence.  As a consequence of your conviction on these charges, you must also be registered as a sex offender.  By virtue of you committing these offences, your reporting period as a registered sex offender is for life.

30The prosecution made an application to obtain a forensic sample from you.  Your counsel indicated that you consented to this forensic sample order being made.  I make the order for the reasons set out on the face of the order, which includes the serious nature of this offence.  I direct that you undergo a forensic procedure for the taking of a buccal swab.  I am further required to tell you that police officers may use reasonable force to enable the procedure to be conducted, to obtain a sample from you.

31If you can stand up now, please, Mr Dempsey.

32This is grave offending for a number of reasons, which I have endeavoured to set out, but which include the vulnerability of children in the community to this type of offending and its dire effects, the manner in which you developed the relationship with the victim and escalated it to a relationship involving sexual content, the steps taken by you to make sexual contact with the victim, the disparity in years and life experience between you and the victim and the significant effects upon the victim flowing from your offending.

33Upon becoming aware of her true age at the commencement of your offending, you returned and offended in a more considered and elaborate way the following day.  I have also had regard to your obsessive-compulsive disorder and severe anxiety disorder, to the extent it provides context and an explanation for your offending.  I have had regard to your pleas, your remorse, and good prospects of rehabilitation.  I have had particular regard to what I consider to be substantial hardship to you in custody, as that principle is understood, due to your disorders.

34The severity of any sentence of imprisonment increases at a greater rate than any increase in the length of the sentence.  That is to say, a two-year sentence is more than twice as severe as a sentence of one year.  I have no doubt you will find each month of the sentence I am about to impose increasingly burdensome.  I have no doubt that the term of imprisonment that I am about to impose upon you, will be significantly more burdensome for you, than it would for an offender not suffering your conditions.  In part, and amongst other factors, this consideration is reflected in a greater than usual disparity between head sentence and non-parole period.

35General deterrence and denunciation must be significant factors in this sentencing exercise in an endeavour to protect children in the community from this type of offending.  I sentence you as follows.

36On Charge 1, you are sentenced to two years' imprisonment.  On Charge 2, you are sentenced to nine months' imprisonment.  On Charge 3, you are sentenced to two years and three months' imprisonment.  I direct that four months of the sentence imposed on Charge 1 and two months of the sentence imposed on Charge 2, be served cumulatively upon the base sentence, which is Charge 3.

37That makes a total effective sentence of two years and nine months.  I set a non-parole period of 16 months.  I declare that you have served two days as pre-sentence detention.  Pursuant to s.6AAA, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months.

38You can sit down for the moment, Mr Dempsey.  I will just sign the s.464ZF order.  In relation to the sex offender registration, there is a document that is to be provided to your client, Ms Todd, which requires his signature, that he has accepted it.  So, I will ask my associate to hand that or he will take it down now. 

39MS TODD:  May I approach the Dock, Your Honour?

40HIS HONOUR:  Yes, certainly.

41MS TODD:  I think I am obliged, Your Honour, to take a moment to explain it to him.

42HIS HONOUR:  All right, well, I will stand down briefly.  The only other matter I had noted on the order, the first time in custody, and the risk of self-harm.  I was minded to forward also Mr Newton's report.  Do you have anything to say about that?

43MS TODD:  I do not, Your Honour, other than that it is a good plan, with respect.

44HIS HONOUR:  All right, well I will come back in five minutes.

45MS TODD:  As the court pleases.

46(At a later stage.)

47MS TODD:  Thank you for that time, Your Honour.

48HIS HONOUR:  That has been signed, has it?

49MS TODD:  It has.

50HIS HONOUR:  And understood?

51MS TODD:  Yes, Your Honour.

52HIS HONOUR:  All right.  Mr Perry, is there any other orders that I need to make?

53MR PERRY:  No, sir.

54HIS HONOUR:  Thank you for that.  All right, thank you everyone.  We will adjourn the court.

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