Director of Public Prosecutions v Newall

[2015] VCC 161

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS NEWALL

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JUDGE:	His Honour Judge Gucciardo
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 February 2015
CASE MAY BE CITED AS:	DPP v Newall
MEDIUM NEUTRAL CITATION:	[2015] VCC 161

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

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms J. Nilsson
of Public Prosecutions
For the Accused	Mr S. Ginsbourg

HIS HONOUR:

1       Dennis Newall, you have pleaded guilty to two charges of kidnap and two charges of rape.   This set of combined offences were committed between 9 November 2001 and 30 November 2001.   The second set occurred on 6 December 2001.

2       At the time of the offences you were 43 years of age.  You were a truck driver.  Your victims whom I shall refer to as A and N for reasons of privacy and anonymity were 27 and 20 years old respectively.

3       A had been a sex worker since the age of 18.  She worked in the St Kilda area.  N had also been a sex worker since that age and similarly worked in that area. 

4       Your co-accused in this matter is your son who was 17 years old at the time.   He was living with you at the time of the offending, sleeping in a converted bus which was parked in Brooklyn.

5       Your son pleaded guilty to kidnapping and was sentenced to six months in prison wholly suspended for 12 months. 

6       The circumstances of the offences are detailed in the prosecution opening document tendered upon the plea and retained on the file. 

7       For purposes of this sentence it will suffice to say that A who was working the St Kilda area 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.

8       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. 

9       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. 

10      A 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. 

11      She had never performed anal sex with clients.  This was Charge 2 of rape.

12      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.

13      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.

14      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. 

15      When A 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. 

16      On 30 November 2001 the end point of the offending with A, you ordered your son to get in the back boot of your station wagon and to hide there under a blanket.   Your son was scared of you and complied with your wishes.  You then took another woman, S, and you raped her repeatedly in your converted bus.

17      In 2002 you pleaded guilty to kidnap and rape and were sentenced to eight years with a non-parole period of six years. Your son also dealt with the kidnap of S and was sentenced in December 2008 with 18 months imprisonment suspended for two years.

18      As to N, the co-accused in the matter was again your son, so he was charged with the kidnapping of N and was sentenced to a six months wholly suspended term for 12 months. 

19      N had been taken a week after the kidnapping of S.   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.” 

20      On the evening of 6 December 2001 you approached N.  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.

21      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. 

22      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.”

23      The victim ultimately managed to get home.  She did not report the offending at that time to the police. 

24      Your son was interviewed on 20 December 2012 stating he only knew of the N matter but not A.  He stated he only did this because he felt threatened by you.  He expressed his distress at what you had done and indicated he wanted nothing to do with you. He agreed he had not spoken of this incident to police in 2001 when he was interviewed for another incident, the one involving S.  He gave an undertaking to assist during his plea.

25      On 23 February 2012 you were interviewed at Hakea Prison in Western Australia.  You asserted that you had consensual sex in your bus with them and you went on to say “It’s all made up.  This is setting me up like the other girls.”

26      Rape carries a maximum sentence of 25 years imprisonment.  The common law offence of kidnap comes with a maximum penalty of 25 years.   By these maximums the law indicates how seriously it considers such offending and though it is difficult to imagine easily, these offences in my view, although very serious, fall within the middle range of offending.  Unfortunately this court sees all manner of vile offending.

27      I have read His Honour Judge Ross’s sentence of December 2002 in regards to S.  After engaging her services you told her you wanted to go elsewhere and you drove her to another location.  Your son,  a co-accused emerged from the car’s boot.  The victim was restrained and driven to a depot where your bus was parked.  In the parked bus she was sexually penetrated by you vaginally, anally and with fingers in the anus.  You also stole money and a phone from her.  You then dropped her off near a freeway. 

28      His Honour sentenced you to a head sentence of eight years with a non-parole period of six years.   You had by that stage spent 366 days in detention.  His Honour treated as circumstances of aggravation the fact that you had not used a condom and on appeal the court rejected the argument that the sentence was manifestly excessive. 

29      Although this matter is highly relevant both by way of modus operandi and because of its occurrence on the 30 November 2001 which coincides with the kidnap and rape of A and precedes the kidnap and rape of N only by a week.

30      You were sentenced in 2012 in Perth in the District Court with seven and a half years' imprisonment for two charges of attempted sexual penetration and five charges of sexual penetration without consent.  You were also sentenced in 2002 for violent offences for which you were gaoled for three months.

31      Apart from the matters I have mentioned you have prior convictions which are not sexual in nature but mainly for dishonesty. 

32      Before turning to your personal circumstances however I must refer to the Victim Impact Statements which were tendered in this case.  The statements by A and N were a harrowing account not just of your criminal depravity but the profound hurt and damage which your behaviour has had on your victims.

33      Their statements were dignified and restrained, yet naturally full of anger, exasperation and brokenness but they were also defiant and hopeful.  Theirs is a real and moving account of two persons who you have damaged and whose  physical, psychological and moral integrity you abused without hesitation or remorse.

34      One expressed it as being “destroyed.”   Their confidence and sense of security and strength diminished, their fear and anxiety heightened, their vocational, educational and personal lives blighted by your conduct.  I take their statements into account in determining an appropriate sentence.

35      You are 56 years old.  You grew up in north east Victoria an only child with three stepsisters.  You completed Year 10 and worked mainly as a truck driver.  You had two previous marriages which lasted respectively two and ten years.   You have fathered four children who are now between the ages of 28 and 37 from whom you are estranged.  You are in a protection unit at Port Phillip Prison but you have a current girlfriend who visits you.

36      I have read the report of Jeffrey Cummins and his update.  It contains a careful history of your background and family including your parents, their separation, your siblings, your accidental killing of an army colleague at Puckapunyal. 

37      An important factor which you reported was your sexual abuse at age 12 in the form of fondling.  I note this factor but also note that Mr Cummins, an experienced psychologist, is of the opinion that the offending was unlikely to have any significant nexus to your abuse. 

38      You have Type 1 diabetes and depend on tablets.  You reported to Mr Cummins that you had undertaken the Sex Offenders Treatment in 2007 and 2008 but did not find it helpful.   However you reported that the Western Australian Intensive Sex Offenders Treatment Program was more successful and that because of it you had reached an understanding of remorse and regret, prompting victim empathy and their trauma at your hands.

39      It is always difficult to assess genuine remorse.  Your demeanour during the plea hearing, particularly when the Victim Impact Statements were read out to the court, tended to indicate to me that your state of insight is poor and you are still focused on your issues rather than the feelings of those you abused so egregiously.

40      I accept your plea of guilty by itself can be demonstrative of some remorse but I am unable to go further than that in taking it into account. 

41      The seriousness of your offending and the history of your criminality indicates that your prospects of rehabilitation must be bleak.  This calls not only for general deterrence to be a primary consideration but for specific deterrence to accompany it as a vital element.  The court must denounce such criminality in a way to discourage others who may be like-minded and you specifically in your evident propensity for sexual violence and to punish you for such abhorrent behaviour.

42      This bleak outlook and limited prospects for rehabilitation are strengthening my view by a self-assessment in which you regard yourself and your risk of committing further sexual offences as being low while recognised and reliable risk assessment tools which were used by Mr Cummins place you in the high risk category. 

43      You evidenced a number of characteristics of a borderline personality disorder.  You expounded what Mr Cummins believed was an ill-founded belief that being required to attend a further sex offender program would be detrimental to you.

44      You are not particularly anxious or depressed in the custodial setting, rather the opposite.  In this context I note that your counsel wisely did not press the “submission” made by Mr Cummins that you could potentially benefit from a disproportionately long period on parole.

45      You have chronic problems with self-awareness, the boundaries of propriety as well as anger and impulse.

46      Having been convicted in February 2012 for the above-mentioned sexual offences in Western Australia for which the earliest release date is April 2017 with an expiry date of April 2019,  the Western Australian sentence was transferred to Victoria. 

47 That sentence is deemed to have been imposed in Victoria by a Victorian court pursuant to the provisions of the Prisoners Interstate Transfer Act (1983).

48      A month after your transfer you were charged with these offences.  You pleaded guilty at an early stage in October and therefore are entitled by law to some discount on your sentence.  These are serious examples of these offences.  The victims were vulnerable.  The co-offenders worked in tandem at your direction.  The use of your son for the purpose of partnering you is an aggravating circumstance in this case.

49      The offences were prolonged.  The victims incurred serious trauma.  I note that it is no longer possible to order any measure of concurrency with the sentence of December 2002 because it has expired.

50      Your counsel sought significant concurrency between the sentence imposed on all charges on the indictment and the Western Australian sentence of seven and a half years with a five and a half year non-parole period.  However in my view these offences were committed much later, therefore these offences are not sufficiently connected in time for such concurrency.

51      You fall to be sentenced as a serious sexual offender in relation to Counts 2 and 4 because you were previously convicted of two or more sexual offences in 2002 in Victoria and 2012 in Western Australia.  The protection of the community therefore become paramount as a sentencing purpose and unless otherwise stated, that sentence imposed will be served cumulatively.

52      I will have your status noted on the records of the court.

53      Your registration as a sex offender follows upon an application made for a discretionary order under s.11.  Reporting based on more than two Class 1 offences is for life.  I intend to order such registration.

54      Mr Cummins noted your frustration at the matters not being dealt with together in a timely fashion.  This must be viewed from the prism of your offending being the primary source of such delay.

55      There has been a measure of delay however which I should take into account and that is that there has been a delay between your interview and your charges materialising.  You are entitled to limited moderation because of it.

56      You have completed some educational courses whilst in custody, however it is likely that while you are in protection where you have been, less access to rehabilitative and educational courses will be available to you.

57      Most importantly I have sought to apply the totality principle in this case carefully, firstly because you have and will spend a significant time in protection and because in effect I am setting a new head non-parole period.

58      Please stand, Mr Newall.  On Charge 1 of kidnapping you are convicted and sentenced to eight years imprisonment.

59      On Charge 2 of rape you are convicted and sentenced to 10 years imprisonment.

60      On Charge 3 of kidnap you are convicted and sentenced to eight years imprisonment.

61      On Charge 4 of rape you are convicted and sentenced to 10 years imprisonment.

62      I order that six months on Charge 1 and Charge 3 and two years on Charge 2 be cumulative upon Charge 4.  That makes for a total effective sentence of 13 years with a non-parole period of 11 and a half years.  There are no ancillary orders as I understand it.  

63      MR GINSBOURG:   I think Your Honour needs to fix a new non-parole period.

64      HIS HONOUR:  The non-parole period as from today will be the period that I have stated as being 11 and a half years. 

65      MR GINSBOURG:  I follow, Your Honour.  Thank you.

66      HIS HONOUR:  But for your plea your sentence would have been 14 years with 12 and a half years as a non-parole period.  The periods that I have fixed are new head and non-parole periods and you will be registered as a sex offender for life.  Are there any other orders that I need to make?

67      MS NILSSON:  No, Your Honour.

68      HIS HONOUR:   You can remove Mr Newall.  Sorry, can you bring him back.  There are some papers about sex registration that you need to sign.  Mr Ginsbourg, I would appreciate it if you would explain the contents of those to your client.  Hand those to Mr Ginsbourg and he can approach the dock.

69      Code Blue.

70      PRISONER REMOVED.

71      HIS HONOUR:  Is everyone all right in court?   I think it's best if you leave and just wait outside.  I don't think that there was any physical contact, Mr Ginsbourg.  Thank you, gentlemen. 

72      MR GINSBOURG:  My instructor and I, if this is okay with Your Honour, my instructor and I won't see Mr Newall immediately.  We will communicate with him via video link.

73      HIS HONOUR:  Not a problem.

74      MR GINSBOURG:  If the papers can be passed to him through the system, I would be grateful and we will speak to him about it in due course.

75      HIS HONOUR:  I will make sure that the paperwork is emailed to you.

76      MR GINSBOURG:  Thank you, Your Honour.

77      HIS HONOUR:  I should say for the purposes of the transcript that at a point of time at which I asked for the prisoner to be brought back into court to sign documents in relation to registration that he became upset and jumped over the dock, came into the body of the court, threatening towards one of the victims and said something.  He was then restrained by two police officers who were in court and by the correctional officer and taken back into the cell.  Thank you again, gentlemen. I am sorry that you had to be involved in that way.  I hope you have not been injured or anything like that.  It's fine, his legal team will communicate with him at the appropriate time.

78      MS NILSSON:  Your Honour, I think that he's seeking the names of the police members for the purposes of what's just occurred.

79      HIS HONOUR:  Yes.  Perhaps the correctional officer can take those details.  All right.  Yes, Mr Ginsbourg, I do not think it is advisable for you or your instructor to talk to Mr Newall at the moment.

80      MR GINSBOURG:  We agree, Your Honour.

81      HIS HONOUR:  Thanks again, gentlemen, and to each of you.  Thank you Madam Prosecutor.

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