Director of Public Prosecutions v Dennis (a pseudonym)
[2015] VCC 876
•25 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB DENNIS[1] |
[1]To ensure that there is no possibility of identification of the individuals concerned, these reasons have been anonymised by the adoption of pseudonym in place of the name of the accused.
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2015 | |
DATE OF SENTENCE: | 25 June 2015 | |
CASE MAY BE CITED AS: | DPP v Dennis (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 876 | |
REASONS FOR SENTENCE
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Subject: Criminal law; Sentencing
Catchwords: Incest; Indecent act with a child under the age of 16; Possession of child pornography.
Legislation Cited: Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill (Plea) Ms B Moleta (Sentence) | Solicitor for the Office Public Prosecutions |
| For the Accused | Mr R Hammill (Plea) Mr S Casey (Sentence) | Paul Vale Criminal Law |
HIS HONOUR:
1 HIS HONOUR: It is Ms Moleta, is it?
2 MS MOLETA: Yes, that is correct, Your Honour.
3 HIS HONOUR: Do you or Mr Casey wish to say anything before I deliver sentence? No new developments?
4 MS MOLETA: No new developments, Your Honour, but the complainant's mother is present in court this morning, as opposed to watching it from the remote witness facility.
5 HIS HONOUR: Yes.
6 MS MOLETA: To assist Your Honour, pre-sentence detention is 57 days including today.
7 MR CASEY: Good morning, Your Honour. I have nothing to add this morning.
8 HIS HONOUR: Yes, thanks, Mr Casey. Did you say 51?
9 MS MOLETA: Fifty-seven.
10 HIS HONOUR: Fifty-seven days. There was one matter that I wanted to raise with counsel, possibly, Mr Casey, with yourself. At the hearing of the plea - and I think it was Mr Hammill for the prisoner.
11 MR CASEY: That is correct, Your Honour.
12 HIS HONOUR: The report of Dr Lester Walton had originally been provided to me as part of a package of material from the defence.
13 MR CASEY: Yes.
14 HIS HONOUR: I read that report prior to the plea hearing.
15 MR CASEY: Certainly.
16 HIS HONOUR: At the plea hearing, Mr Hammill said that he did not rely on
Dr Walton's report.
17 MR CASEY: That is correct.
18 HIS HONOUR: I think, essentially, what he said was - or my note, rather, indicates - the report had been sought in the context of whether the principles of Verdins were applicable.
19 MR CASEY: Yes, that is correct, yes.
20 HIS HONOUR: He concluded that they were not.
21 MR CASEY: Yes.
22 HIS HONOUR: He did not rely on the report full stop.
23 MR CASEY: Overall. That is correct, Your Honour, yes.
24 HIS HONOUR: However, there are a number of general observations made by Dr Walton which seem to me had some relevance to the sentencing overall. In particular, I suppose, the very last paragraph, which he numbers paragraph 5, of his opinion. Namely, that the prisoner is already in a good deal of emotional turmoil, and he is properly described as a vulnerable individual in relation to being incarcerated. "The psychiatric service does need to be alerted to his presence as a significant suicide risk."
25 It seemed to me that that report should be formally tendered as part of the plea, unless there is some very good reason why it should not. It then enables me to say something in my orders to the effect.
26 MR CASEY: Certainly. As Mr Hammill mentioned on the previous occasion, and in comments before the plea, it was a decision made at the time. Considering Your Honour's comments - - -
27 HIS HONOUR: It is just in relation to that limited aspect.
28 MR CASEY: Yes, certainly.
29 HIS HONOUR: I accept what Mr Hammill says, and frankly I agree that it does not take it into the realms of Verdins. But it seemed to me that that is a matter that I should probably take into account as part of the overall sentencing of him.
30 MR CASEY: Then if Your Honour will allow - I am not sure how my learned friend will respond - I will formally tender that as part of the plea, then.
31 HIS HONOUR: Yes. Ms Moleta, there would not seem to be any issue with that, would there?
32 MS MOLETA: Your Honour, there is no objection if it is used for that limited purpose.
33 HIS HONOUR: Yes.
34 MS MOLETA: There was some concern about the self-reporting, which is why the Crown had sought to have Dr Walton available at the plea.
I understand then a forensic decision was made with respect to whether the report was formally tendered, but there is no objection to the use of the report for that purpose.
35 HIS HONOUR: There was one other matter, and that is in relation to the serious sexual offender provisions of the Sentencing Act, I take it that
the prisoner falls to be sentenced as a serious sexual offender in respect of Charges 3-8.
36 MS MOLETA: That is correct, Your Honour.
37 HIS HONOUR: Jacob Dennis[2], you have pleaded guilty to five counts of committing an indecent act with or in the presence of a child under the age of 16; two counts of incest; and one count of possession of child pornography.
[2]A pseudonym
38 The circumstances of your offences are as follows:
39 Your daughter was born on 21 July 2006. She is currently aged eight.
40 Between 1 January 2013 and 31 January 2013, at which time your daughter was aged between six and seven years of age, you applied a vibrator on her vagina at your family home. Soon after, between 7 February 2013 and
26 August 2013, you again placed the vibrator on her vagina and also placed your finger on and around her vagina. These instances constituted a representative count of committing an indecent act with your daughter, a child under the age of 16. That conduct constitutes Charge 1.
41 Between 1 January and 31 December 2013, you touched her on the vagina with your finger, a further indecent act. This conduct constitutes Charge 2.
42 About Easter 2013, whilst your daughter was in Grade 1, at your family home you inserted an object into your daughter’s anus which hurt her. This is a representative charge relating to such conduct which occurred on some three occasions. On the third of these occasions, you also masturbated in front of her until you ejaculated. These matters constitute a representative charge of incest, being Charge 3.
43 Between 7 February 2013 and 26 August 2013, you made your daughter watch a pornographic movie in the lounge room at your holiday home. This conduct constitutes Charge 4, committing an indecent act with a child under the age of 16.
44 Between 7 February 2013 and 9 May 2014, you introduced your penis into your daughter’s mouth. This is a representative charge. Such conduct occurred on two occasions. Further, between 1 January 2013 and 9 May 2014, you had your daughter suck your penis until you ejaculated into her mouth, whilst you were in the shower with her. These matters constitute Charge 5, a representative charge of incest.
45 Between 1 January 2013 and 9 May 2014, you committed an indecent act with your daughter by requesting her to wash your penis in the shower at the family home. You ejaculated and directed your semen across her vagina bottom and anus. This conduct constitutes Charge 6, committing an indecent act with a child under the age of 16.
46 Between 1 January 2013 and 9 May 2014, you showered with your daughter, had her kneel in front of you, and rubbed your penis between her legs, touching her vagina and anus. This conduct constitutes Charge 7, committing an indecent act with a child under the age of 16.
47 Finally, between 1 January 2012 and 10 May 2014, you downloaded and possessed child pornography. That conduct constitutes Charge 8.
Background
48 By way of background, you are currently aged 44.
49 I was advised by your counsel that you had a relatively happy childhood, subject to three matters:
· Firstly, when you were about 18 months old, you suffered from meningitis, following which there were some concerns held by your family about on-going effects of that condition. However, there was no medical evidence concerning this, nor any evidence about what, if any, on-going effects were experienced by you following that illness.
· Secondly, when you were aged about nine, you were sexually assaulted by your older brother.
· Thirdly, when you were aged about 11, you were struck by a car and suffered head injuries. You have suffered from epilepsy, likely as a consequence of that injury, which has been controlled satisfactorily by medication.
50 You were educated to Year 11. On completion of your schooling, you worked as a motor mechanic and later as an auto-electrician.
51 You married in 2000. I was informed by counsel that that relationship and the sexual aspects of it appears to have deteriorated after your daughter’s birth in 2006.
52 You developed an interest in adult pornography, which your counsel described as "quickly getting out of hand".
53 You commenced abusing your daughter approximately one week after she started Year 1 at school, when she was about six. This continued until May 2014, a period of about 16 months. By that time she had reached the age of seven. Your offending occurred at your family home and at your holiday home. In both of those locations your daughter ought to have been able to feel safe and secure.
54 Your offending only ceased in 2014 when your daughter informed her mother of your behaviour and her mother intervened.
55 When confronted by your wife, you initially denied any wrongdoing concerning your daughter. In a record of interview conducted by police on 10 May 2014, you denied that you had ever touched your daughter in a sexual manner.
Sentencing purposes and guidelines
56 Section 5 of the Sentencing Act 1991 provides for sentencing guidelines, they being the only purposes for which sentences may be imposed. These are, essentially, to punish the offender to an extent and in a manner which is just in all of the circumstances; to deter the offender and other persons from committing such offences; to manifest the court’s denunciation of such offending; to protect the community from the offender; and if possible, to facilitate the offender’s rehabilitation.
57 Sub-section 2 of s.5 of that Act requires me to have regard to a number of matters when sentencing you, of relevance to your case they include:
(a)Firstly, consideration of the maximum penalties prescribed for the offences by Parliament. Here, pursuant to s.44(1) of the Crimes Act, the maximum penalty for incest is 25 years' imprisonment. The maximum penalty for committing an indecent act with or in the presence of a child under the age of 16 is ten years' imprisonment. The maximum penalty for possessing child pornography, is five years' imprisonment.
(b)Secondly, I am required to have regard to current sentencing practices.
I was provided with a number of decisions of the Court of Appeal relevant to this type of offending. I have specifically been referred to the matters of CPD[3]; of DJ[4]; and EMT[5]. I have taken each of these decisions into account when addressing your sentence.[3] [2009] VSCA 114
[4] [2011] VSCA 250
[5] [2012] VSCA 193
I have also taken into account the document described as "sentencing snapshots" relating to these offences. I am conscious that such snapshots may often be of limited assistance, in that little detail is known of the circumstances of the offences or of the offender and such information as is provided does not include matters such as whether or not the offender pleaded guilty and, if so, at what stage of the proceeding.
Nevertheless, it must be said that the authorities I was referred to and the statistical material provided to me, indicate that persons convicted of the offence of incest and of the offence of committing an indecent act with or in the presence of a child under the age of 16, are generally sentenced to a substantial term of immediate imprisonment.
(c)The third matter I must have regard to is the nature and gravity of the offences. There can be no doubt that these offences are serious. You occupied a position of trust in respect of your daughter. Your conduct was a gross breach of that trust. The conduct extended over a period of some 16 months. You must have been aware that your conduct constituted a serious breach of the law.
(d)The fourth matter is the offender’s culpability and the degree of responsibility for the offences. In that respect your culpability is high. No one else was in the slightest responsible for your conduct, which extended over a significant period and only ceased upon your daughter reporting you. You have told police that it was your daughter that expressed an interest in the vibrator and in the pornography. Even if
I accepted that that was so, such curiosity referred to was that of a six or seven year old child. Your counsel did not suggest that such curiosity was a mitigating factor for you, nor could it ever be so.(e)Fifthly, I am required to consider the impact of each offence upon any victim of it and any resultant injury, loss or damage.
Your wife’s victim impact statement was read to the court. In it she referred to your daughter’s concern that her mother might be angry because of what she had done with you. Your offending became known at your daughter’s school and she was upset when teased about it by other students. She has been upset by small things, such as smelling the same cologne as that previously been used by you. There are many things that she now wishes to avoid because they remind her of you and your offending conduct. Her mother reports that she is terrified, that is that your daughter is terrified of seeing you because she believes you will be angry with her for reporting you. She has had to undergo counselling. Your wife has also undergone counselling. She spoke of her inability to trust people. She wrongly blames herself for permitting your offending to occur.
(f)The sixth matter I am required to take into account is whether the offender pleaded guilty to the offences and if so, the stage of the proceedings at which the offender did so, or indicated an intention to do so. Here I accept that although you initially denial wrongdoing to police, you did offer to plead guilty at an early stage. You continued to deny some of the allegations made by your daughter but, in the end, those matters were not pursued by the prosecution.
Further, you waived your right to a committal hearing. Your wife and daughter have been spared having to give evidence in court concerning your conduct, an experience which would, no doubt, have been extremely distressing for both of them.
(g)The seventh matter I am required to take into account is your previous character. I note that you have no prior convictions of any description. There is no suggestion that you have offended in any way relevant since being charged. I therefore approach sentencing you, as I must, on the basis that you were a person of good character before these offences were committed. In addition I take into account your solid work record.
(h)Finally I am required to take into account the presence of any aggravating or mitigating factor concerning you or any other relevant circumstances. Here, as I have said, you were in a position of trust and authority. Your daughter was a very young girl. These are clearly aggravating circumstances. Your wife had her suspicions concerning your behaviour that something was wrong, but you managed to dispel those concerns but continued to offend against your daughter.
58 I accept and take into account that the consequences of your offending upon your daughter and wife have been both serious and long term.
59 Whilst no penile penetration of the vagina or anus is now alleged, Charge 7 involved unprotected contact with your penis on her vagina and anus, thus involving a risk of transmitting infection. I consider that to be an aggravating matter.
Mitigating matters
60 By way of mitigation, I accept and take into account that you have no prior convictions and that you pleaded guilty at an early time.
61 I accept that you have come to accept responsibility for your conduct and have shown remorse.
62 In relation to the charge of possession of child pornography, I accept that this material was not shown to your daughter, nor used in relation to your offending conduct.
63 Although your counsel informed me that you had accidentally downloaded the offending pornographic material whilst looking for adult pornography, I note that you had apparently retained it for a period of time after doing so. I note that most of the material consisted of Category 1 images, that is children posing erotically but not engaging in sexual activity, although there were 16 Category 2 images involving sexual activities, although not penetrative and 63 Category 4 images involving child and adult penetrative images.
64 I note that you are currently prescribed the anti-depressant medication, Zoloft, 50mg per day, in relation to mood management, and Tegratol, 400mg daily for your epilepsy. There does not appear to be any reason why such treatment would not be adequately provided whilst in custody, although prison authorities should be made aware of your need to continue with it.
65 In a message sent by you to your wife soon after your daughter spoke with her mother about your offending, you referred to you having an “illness”. Your counsel advised that you had been examined by Dr Walton, a psychiatrist and a report had been prepared by him. It was initially not tendered as being relied upon, although it was tendered as a result of a conversation I had with counsel this morning. In that report, Dr Walton noted particularly that you were at the time that he saw you, which was in February of this year, already in a good deal of emotional turmoil and that you were properly described as a "vulnerable individual" in relation to being incarcerated. He commented that the psychiatric service does need to be alerted to your presence as there is a significant suicide risk. I take that into account.
66 Finally I note that this will be your first time in custody.
67 Dr Walton also commented that your prospects for rehabilitation were guarded because you lacked real insight as to why you had acted as you did. In my opinion, your lack of insight is demonstrated by your failure to take any steps to work towards some rehabilitation in the nine month period between that date of your arrest and the commencement of the plea hearing.
Sentence
68 In all of the circumstances, I have determined that a period of immediate incarceration is the only sentence that properly reflects:
· the nature and gravity of your offending;
· the court’s proper denunciation of your conduct; and
· an adequate punishment to deter you and other members of the community from committing similar offences.
69 Because I have determined that a custodial term is warranted in respect of each of the offences, it follows that you fall to be sentenced as a serious sexual offender in respect of Charges 3 to 8 inclusive.
70 Pursuant to s.6D of the Sentencing Act, the court must regard the protection of the community from you as the principal purpose for which the sentence is imposed. Whilst I am permitted by that section to impose, for that purpose, a sentence that is longer than which is proportionate to the gravity of the offence, I do not intend to do so. On the material before me I consider that it is unlikely that you will offend in this manner again.
71 There is no suggestion that you offended in this manner before or since the offending against your daughter. Your offending can properly be described as "opportunistic". I consider that you are unlikely ever to live again with your daughter or any other young person.
72 I have also had regard to s.6E of the Act which provides that each sentence imposed shall, unless otherwise directed by the court, be served cumulatively. Notwithstanding, I consider that principles of totality remain relevant. I have determined that the sentences to be imposed by me ought not, in all of the circumstances, be wholly cumulative. This reflects my view that there is a lack of a need to impose a disproportionate sentence to protect the community.
73 I take into account that Counts 1, 3, and 5 are representative counts. A plea of guilty in relation to a representative count prevents a prisoner from claiming any leniency that might have been extended, if the offence had been an isolated event A higher sentence may be imposed in relation to a representative count than would be the case in relation to an isolated count.[6]
This is largely because of the impact of the offending upon the victim is likely to be greater than for the victim of a single but comparable count.[7]
Sentence
[6]DPP v EB [2008] VSCA 127
[7]R v CJK [2009] VSCA 58 at [62]
74 Jacob Dennis, in relation to Charge 3, that is the representative charge of incest involving the introduction of an object into your daughter’s anus, you are sentenced to a term of imprisonment of five years. This will be the base sentence.
75 In relation to Charge 1, the representative count of using a vibrator on your daughter’s vagina, you are sentenced to a term of imprisonment of two years, of which 12 months will be served concurrently with the sentence imposed on Charge 3.
76 In relation to Charge 2, the indecent act involving you touching your daughter’s vagina, you are sentenced to a term of imprisonment of one year, six months of which shall be served concurrently with the sentence imposed on Charge 3.
77 In relation to Charge 4, forcing your daughter to watch a pornographic movie, you are sentenced to a term of imprisonment of six months, which shall be served concurrently with the sentence imposed on Charge 3.
78 In relation to Charge 5, the representative charge of Incest, in introducing your penis into your daughter’s mouth, you are sentenced to a term of imprisonment of four years, two years of which shall be served concurrently with the sentence imposed on Charge 3.
79 In relation to Charge 6, the indecent act involving you ejaculating onto your daughter in the shower, you are sentenced to a term of imprisonment of two years, 12 months of which shall be served concurrently with the sentence imposed on Charge 3.
80 In relation to Charge 7, touching your daughter’s vagina and anus with your penis, you are sentenced to a term of imprisonment of one year, nine months of which shall be served concurrently with the sentence imposed on Charge 3.
81 In relation to Charge 8, that being the possession of child pornography, you are sentenced to a term of imprisonment of one year, nine months of which shall be served concurrently with the sentence imposed on Charge 3.
82 Accordingly, the total effective sentence imposed is ten years' imprisonment.
83 I direct that you serve a minimum period of seven years before becoming eligible for parole.
84 Pursuant to s.6AAA of the Sentencing Act, I am required to state the total effective sentence and non-parole period that I would have imposed in the event that you had not pleaded guilty to these charges. Had you not pleaded guilty and had been convicted of these charges, I would have sentenced you to a total effective sentence of 12 years' imprisonment with a minimum
non-parole period of nine years.
85 Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample, until a sufficient standard is obtained for placement on the database. I make that order because of the seriousness of the circumstances of your offending and further, because I understood from the plea hearing, that such an order was not opposed. Is that correct, Mr Casey?
86 MR CASEY: Yes, Your Honour.
87 HIS HONOUR: I am obliged to tell you that, notwithstanding your consent to this order, if you do not ultimately co-operate with the taking of the sample, reasonable force may be used to obtain a blood sample from you. Do you understand that?
88 OFFENDER: Yes.
89 MS MOLETA: Sorry, Your Honour, if I may interrupt. It was an automatic retention order. The Crown did not seek a 464ZF order.
90 HIS HONOUR: I see.
91 MS MOLETA: I apologise, Your Honour.
92 HIS HONOUR: No, thank you for that, Ms Moleta. There will be no need for a separate order - the 464ZF, is that correct?
93 MS MOLETA: That is correct, Your Honour.
94 HIS HONOUR: All right.
95 I declare that you have already served 57 days in pre-sentence detention, not including today. And I direct that that be taken into account as having been served pursuant to the sentences that I have previously indicated. I direct that that be recorded on the court file.
96 Now under the Sex Offenders Registration Act 2004, by reason of these convictions, you are to be recorded as a registrable offender. On my calculations, Ms Moleta, for life?
97 MS MOLETA: That is correct, Your Honour.
98 HIS HONOUR: For life.
99 You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first report after your release from custody. Details in writing of these reporting conditions will be served upon you forthwith by my associate.
100 For the sake of completeness, Mr Dennis, you must first report to Victoria Police within seven days of your release from prison, when that occurs.
101 Disposal order still sought?
102 MS MOLETA: Yes, Your Honour.
103 HIS HONOUR: These relate to the disposal of the silver coloured vibrator and the Compaq computer hard disc containing the pornography.
104 MS MOLETA: Yes, that's correct, Your Honour.
105 HIS HONOUR: Have you seen those disposal orders, Mr Casey? Do you want to have a quick look at them?
106 MR CASEY: I don't believe so, Your Honour. I obviously take no issue with it.
107 HIS HONOUR: Yes, is there any other matters that either counsel considers still require attention?
108 COUNSEL: No, Your Honour.
109 HIS HONOUR: Yes. Thank you. The prisoner may be taken downstairs.
110 Yes, we will just adjourn shortly, I think.
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