R v Dennis - [2000] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 307 of 1998

THE QUEEN

MICHAEL PATRICK DENNIS

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JUDGES:	BROOKING, CHARLES and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2000
DATE OF JUDGMENT:	10 May 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 81

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Criminal Law – Sentence – Sexual penetration of child – Maximum misapprehended – Guilty plea – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	P.C. Wood, Solicitors for Public Prosecutions
For the Applicant	Mr M.G. Perry	Chris Hardman

BROOKING, J.A.:

Charles, J.A. will deliver the first judgment.

CHARLES, J.A.:

On 16 October 1998 the applicant, who is now aged 35, pleaded guilty to a presentment alleging 23 counts of sexual penetration of a child under the age of 10 and seven counts of committing an indecent act with a child under the age of 16 years. The alleged period of offending was from November 1995 to February 1998, at the start of which the applicant was aged 31. The maximum penalty for the sexual penetration offences was, for those occurring prior to 1 September 1997, 20 years' imprisonment, and for those occurring on or after 1 September 1997, 25 years' imprisonment. At all material times the maximum penalty for committing an indecent act with a child was 10 years' imprisonment.

A plea in mitigation was heard on 16 October, during which the sentencing judge received a report by a clinical psychologist, Mr Ken Dungey, in relation to the applicant, a medical report from the Box Hill Hospital in relation to the injuries suffered by the applicant on 12 June 1988 in a motor accident, a reference from the applicant's previous employer Forgecast Australia Pty Ltd, and a victim impact statement signed by the mother of the victim. The hearing of the plea was adjourned to enable a psychiatric report to be obtained and a report prepared by a consultant psychiatrist, Dr Douglas Bell, dated 16 November 1998 was subsequently provided to his Honour.

On 4 December 1998 the judge convicted the applicant on all charges and sentenced him to be imprisoned on each of the seven counts of committing an indecent act with a child under the age of 16 years to two years' imprisonment, and as to the charges of sexual penetration, sentenced him on two of those charges to three years' imprisonment, on 15 of those charges to four years' imprisonment, and on six of the charges to seven years' imprisonment. His Honour ordered that five years of the sentence imposed on count 27 be served cumulatively upon the sentence imposed on count 25, producing a head sentence of 12 years' imprisonment, these being two of the counts alleging sexual penetration. A head sentence of 12 years' imprisonment was therefore imposed, and the judge fixed a non-parole period of nine-and-a-half years. The applicant was declared to be a serious sexual offender with respect to counts 3 to 30.

The applicant now seeks 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 [2000] VSCA 81
Case: [2000] VSCA 81
Decision Date: 10 May 2000

CaseChat Overview and Summary

The case of R v Dennis involved the appellant, who was convicted of sexually penetrating a child under the age of 16. The appellant appealed the sentence imposed by the lower court, arguing that the maximum penalty had been misapprehended. The case was heard by the higher court, which was required to determine whether the sentence was manifestly excessive given the circumstances and the appellant's guilty plea. The court examined the legal framework governing the sentencing of sexual offences against children, focusing on the maximum penalties specified in the relevant legislation and the principles of sentencing that applied in this context.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive when the maximum penalty had been misapprehended. The appellant argued that the sentence should be reduced due to the error in calculating the maximum penalty. The court had to consider the principles of sentencing, including the need for proportionality, deterrence, and the circumstances of the offence and the offender. The court also needed to weigh the appellant's guilty plea, which typically results in a discount on the sentence. The decision hinged on whether the sentence, despite the misapprehended maximum penalty, was still appropriate and not manifestly excessive.

The court found that while the maximum penalty had indeed been misapprehended, the sentence imposed was not manifestly excessive. The court emphasised the importance of proportionality and the need to ensure that the sentence reflected the seriousness of the offence. The court considered the mitigating factors, including the appellant's guilty plea, and found that the sentence was within the range of appropriate penalties for the offence. The court concluded that the sentence, despite the error in calculating the maximum penalty, was not manifestly excessive and did not warrant a reduction. The appeal was dismissed, and the original sentence was upheld.

No further orders were made beyond the dismissal of the appeal and the upholding of the original sentence.

Orders