R v Dennis - [2011] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0923

MICHELLE LYN DENNIS	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	ASHLEY and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 FEBRUARY 2011
DATE OF JUDGMENT	7 FEBRUARY 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 65
JUDGMENT APPEALED FROM	R v Dennis (Unreported, County Court of Victoria, Judge Cohen, 20 November 2009)

---

CRIMINAL LAW – Sentence appeal – Appellant pleaded guilty to three counts of sexual assault involving minors – Appellant sentenced to a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and 10 months – Whether the orders for cumulation made by the sentencing judge resulted in a total effective sentence which offended against the principle of totality – Appeal allowed – Appellant re-sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 18 months – Adjustment preserved the individual sentences imposed by the sentencing judge but applied the principle of totality in the way advised by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant:	Mr N J Clelland SC with Mr M J Croucher	Mr M Wardell
For the Crown:	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

On 19 October 2009 in the County Court at Ballarat before her Honour Judge Cohen, the appellant, Michelle Lyn Dennis, pleaded guilty to three counts of sexual assault involving minors. Two of these counts related to acts of sexual penetration with a child under her care, supervision or authority, and one count related to an act of sexual penetration with a child under the age of 16. Having regard to the different circumstances of these offences, each carried a penalty of ten years’ imprisonment by virtue of ss 48(1) and 45(2)(c) of the Crimes Act1958.

The circumstances of these offences are fully set out in the sentencing remarks of Judge Cohen and need not be repeated here. A copy of those sentencing remarks is appended to these reasons.

On 20 November 2009, Judge Cohen sentenced the appellant to two years’ imprisonment on each count. Her Honour cumulated nine months of the sentence on count 2 upon the sentence on count 1, and 18 months of the sentence on count 3 upon the sentences on counts 1 and 2, thereby imposing a total effective sentence of four years and three months’ imprisonment. She fixed a non‑parole period of two years and ten months.

Her Honour made ancillary orders declaring the appellant to be a serious sexual offender in respect of the sentence on count 3 pursuant to s 6(f) of the Sentencing Act 1991, registered her pursuant to the Sex Offenders Registration Act and made orders with respect to the taking of a forensic sample from the appellant.

On 10 September 2010, Ashley JA granted the appellant leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dennis

Details

AGLC: R v Dennis [2011] VSCA 65
Case: [2011] VSCA 65
Decision Date: 7 FEBRUARY 2011

CaseChat Overview and Summary

In the case of R v Dennis, the appellant, Dennis, pleaded guilty to three counts of sexual assault involving minors. He was sentenced to a total effective sentence of four years and three months' imprisonment with a non-parole period of two years and 10 months. The appellant appealed against his sentence on the basis that the orders for cumulation made by the sentencing judge resulted in a total effective sentence that offended against the principle of totality. The Court of Appeal was required to determine whether the appellant's sentence was consistent with the principle of totality, which requires that the cumulative effect of multiple sentences does not exceed the overall punishment that would have been imposed for a single offence.

The Court of Appeal held that the appellant's sentence did indeed offend against the principle of totality. The Court found that the sentencing judge had failed to consider the individual sentences imposed for each offence and their cumulative effect on the overall sentence. The Court of Appeal also noted that the appellant's sentence was manifestly excessive and disproportionate to the offending. The Court of Appeal re-sentenced the appellant to a total effective sentence of three years' imprisonment with a non-parole period of 18 months. This adjustment preserved the individual sentences imposed by the sentencing judge but applied the principle of totality in the way advised by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

The Court of Appeal held that the appellant's sentence was manifestly excessive and disproportionate to the offending. The Court noted that the appellant's offending involved the sexual assault of minors and that the sentences imposed for each offence should reflect the seriousness of the offending. However, the Court found that the cumulative effect of the sentences imposed for each offence resulted in an overall sentence that was manifestly excessive and disproportionate to the offending. The Court of Appeal re-sentenced the appellant to a total effective sentence of three years' imprisonment with a non-parole period of 18 months, which it found to be consistent with the principle of totality and appropriate in the circumstances of the case. The Court also noted that the re-sentence preserved the individual sentences imposed by the sentencing judge but applied the principle of totality in the way advised by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

Orders