Director of Public Prosecutions v Dendy (a pseudonym)

[2017] VCC 637

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETHAN DENDY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 May 2017
CASE MAY BE CITED AS:	DPP v Dendy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 637

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Bourke
For the Accused	Mr A. Pyne

HIS HONOUR:

1Ethan Dendy[1], you have pleaded guilty to one charge of indecent act with a child under the age of 16 and one charge of indecent act with a 16 or 17 year old child.  Those crimes carry maximum penalties of ten years and five years respectively. 

[1] A pseudonym.

2Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  Also because of the offending to which you have pleaded guilty you will be placed on the Sex Offenders Register and I advise you that the reporting conditions will be for 15 years.  That can be given to him now, please. 

3You are now 45 years of age. You pleaded guilty at the earliest reasonable opportunity and I accept that you cooperated to a large extent with authorities.  I accept that you now do have genuine remorse for your offending against these two victims and you must of course also get the utilitarian benefit of those pleas of guilty.  You do have one prior matter which relates to stalking back in 2007.  The circumstances of that were effectively what is known as upskirting where you were photographing the underwear effectively of girls aged between about ten and 14.  You were given a non-conviction disposition and you do not get sentenced for the same thing twice but clearly that prior conviction is of significance and should have given some warning of what may have occurred in the future in any event. 

4The situation is, as I have said, you are now 45, and were 45 years of age at the time of the offending.  You have ten and soon to be 11 children and attend at a church in a town.  The two complainants are the second victim who was 16 years old at the time of the offending against her and first victim who was 11 years old at the time of the offending against her.  Both incidents took place when the complainants were at sleepovers at your home and both of the complainants were friends with your daughters. 

5Insofar as Charge 1 is concerned, on a night in late December of 2015 the first victim was staying at your home with her younger sister.  When it came time to go to bed she slept on a mattress on the floor of your daughter’s bedroom.  Your daughter slept in the top bunk and the first victim’s sister slept in the bottom bunk. The other two girls were asleep when you entered, sat beside the complainant's mattress and pulled down her underwear and you touched her vagina by rubbing it.  That is Charge 1.  She then pretended to wake up and you quickly got up and left the bedroom.  You came back later, asked if she needed a sleeping tablet and some water and gave her that.  At some point later in the evening apparently she told your daughter what had happened.  What became of that, I do not know. 

6In approximately September of 2016 the complainant attended your house and you gave her a note that said among other things "I pulled your underwear down to your ankles".  You then burnt the note in front of her.  She did not tell anyone else about the offending until she spoke to her mother in November of 2016 after her mother had heard rumours that you had done something sexual with a young girl in the parish.  At that point is when she complained to her mother. 

7In November of 2016 you were interviewed in relation to the offending against her and you admitted that you had touched her inappropriately and admitted that you had given her the note. 

8Charge 2 relates to a 16 or 17 year old child, that being the second victim.  Again she staying at your house with one of your daughters.  They slept in the living room.  The complainant slept on a fold out sofa.  At some point during the evening you entered the living room, pulled down the blanket that she was using and touched her bottom/hip area on top of her clothes.  That woke her up. 

9Later in the evening you returned to the living room.  She was awoken by your hand on her bottom with you kneeling on the floor beside the bed.  You pulled down her pants and then touched her bottom.  She said that you "just kind of grabbed her buttocks".  Your wife then apparently called out and you got up and left the room.

10The second victim told her parish priest about this and he encouraged her to tell her mother which she did.  In July of 2016, the manner of how this all came about, does not really matter, you presented to the Department of Health and Human Services and admitted to having touched her.  When arrested and interviewed in relation to this matter at that time you admitted that "Probably where my fingers were were probably between the vagina and the anus".  You said you had a voyeuristic intent and it is clear from the psychological material tendered on your behalf that you have a voyeuristic disorder.

11The offending has to be regarded as serious.  I have read the victim impact statements which have been tendered and they describe the ongoing distress, psychologically, pain, guilt and all the other emotions that go with offending of this sort.  Those victim impact statements eloquently describe why people almost inevitably have to go to gaol for this sort of offending. 

12Whilst it could be argued that the objective nature of the offending is at the lower end of the scale and it involved no penetration, though it is dubious whether that matters when you talk to psychologists about it, it remains a massive breach of trust, not only of the girls and of their families and of the community in which you were operating, but your own family as well.  With the church that you were involved in, these girls were associated with that church, there have been ramifications for them and I daresay ramifications throughout the whole of the community.  They were friends of your daughters.  I have no idea how your daughters feel about what you have done in terms of their friends.

13In the case of R v Sposito years ago Mr Justice Marks said:

"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care is degenerate."

14I accept in this situation that there was no grooming because it would not have been needed, you thought they were asleep in any event, but they were short incidents obviously of brief duration and I accept for sentencing purposes that they were opportunistic and not planned and I accept that at the time of the offending, you had a number of factors operating on your mind.  You were a nervous, anxious person.  You had been demoted in your employment and you had returned, as apparently has been your want in the past, to pornography, to alleviate your stress.

15As I said, it is a massive breach of trust and it can only be guessed as to what would have happened if your daughters woke up while it was all taking place.  Fortunately I think that does not appear to have occurred.

16You have now been in custody for 186 days.  This offending calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  A gaol sentence in my view is inevitable in this situation, and I then look at matters personal to you.

17A very helpful history was provided by your counsel.  Also tendered was a report from Dr Carla Lechner and I accept, bearing in mind, that report as well as your counsel's submissions, that you have suffered from depression for some time.  That in certain circumstances, you are an isolated, nervous, anxious man.  I accept that gaol is a very unpleasant experience for you and I accept that you have been threatened within there, but I give that limited weight in this situation.

18More importantly, I have now been shown documentation which satisfies me that at the conclusion of your time in custody, you will be deported back to New Zealand.  When one looks at your personal history, the significance of that becomes relevant.

19You were born in New Zealand and you are the eldest of three.  You grew up in a middle class family and as I understand it, have very little contact with any of them anymore.  Your parents were strict within the catholic church.  When you left school, you spent three years in a seminary in New South Wales, but you were never ordained.

20You left, returned to New Zealand and obtained work.  You have worked pretty much ever since - apart from a two month period.  You met your wife during that initial period of time who is an Australian citizen.  You moved back to Australia in 1996, lived in Sydney.  Again you worked and you married one year later in 1997.  You moved to Victoria in 2000 because you had obtained a better paying job and you have lived in Victoria since.

21Your wife holds traditional catholic values and is a member of a parish to which I am aware and that would appear to have caused some difficulties.  You now have ten children with one to be born in the relatively near future and it has been put in the material that you never really coped with having so many children and the environment that that created, as your counsel said, struggle with the demands placed upon yours and your wife's time.  Again as I have indicated, you have got a very good work record. 

22I do not think I need to go into the basic details of your childhood and everything else.  In the end of the day, you have offended against two children in circumstances where they were under your care and supervision.  They were in your house and they were entitled to your protection.  They received no such thing. 

23The prospects of your rehabilitation are, as your counsel conceded, they would have to be somewhat guarded.  The risk of you reoffending is described in the report as being moderate to low, which I find a bit hard to believe.  But in any event, the circumstances are with a deportation, that that might not be a difficulty in this country in any event.

24In your circumstances, it does seem clear that you will be deported.  That the reasons for that are still somewhat obscure, but the end result is exactly the same.  I sentence you on the understanding that you will do the sentence with the expectation with being deported and that you will do that with knowing how your family feels about your deportation.  You will be returned to New Zealand leaving a wife, who does not work as I understand it and eleven dependent children.

25You will have to live with the guilt of that and it is nobody's fault but your own, but I do take it into account obviously, in terms of your knowledge and the difficulties of you undergoing a sentence with that very real expectation.

26The maximum penalties are ten years and five years and I have expressed my surprise at the five years as a maximum penalty for that particular crime, but be that as it may, that is the regime in which I have to sentence. 

27Doing the best I can with all this, Charge 1, eighteen months. Charge 2, twelve months. Six months of two, cumulative on one gives you twenty-four months. I direct fifteen months be served before becoming eligible for parole. I direct that 186 days be reckoned as having been served under this sentence. Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, I would have sentenced you to three with a two.  There is no orders I have to make?

28MR BOURKE:  No, Your Honour.

29HIS HONOUR:  No.

30MR PYNE:  No, Your Honour.  The court pleases.

31HIS HONOUR:  Yes, he can go now.  Thank you.  Yes, thank you Mr Bourke, thank you Mr Pyne. 

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