R v Dennis

[2003] NSWCCA 137

CITATION:	R v Dennis [2003] NSWCCA 137
HEARING DATE(S):	28 April 2003
JUDGMENT DATE:	13 May 2003
JUDGMENT OF:	Hulme J at 1; Simpson J at 2
DECISION:	in lieu of the sentence imposed by the sentencing judge, the applicant be sentenced to imprisonment for ten years, commencing on 7 October 2001, with a non-parole period of period of seven years and six months, the non-parole period to expire on 6 April 2009
CATCHWORDS:	appeal against severity of sentence - factual error - sentence imposed manifestly excessive - benefit for a plea of guilty - "top-down sentencing"
LEGISLATION CITED:	Crimes Act 1900 (NSW) s61(D), s61(J)
CASES CITED:	R v De Simoni (1981) 147 CLR 383 R v Gallagher (1991) 23 NSWLR 230 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
PARTIES :	Crown - Respondent Leslie Paul Dennis - Applicant
FILE NUMBER(S):	CCA 60016/03
COUNSEL:	MC Grogan - Crown AC Haesler - Applicant
SOLICITORS:	SE O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0031
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

60016/03

HULME J
SIMPSON J

Tuesday 13 May 2003

REGINA v Leslie Paul DENNIS

Judgment

1 HULME J: I agree with the order proposed by Justice Simpson and with her Honour's Reasons.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court at Parramatta by Nield DCJ, following his plea of guilty to a charge of aggravated sexual assault committed on 7 October 2001. By s61J of the Crimes Act 1900 the maximum penalty applicable to the offence was one of imprisonment for twenty years. Nield DCJ sentenced the applicant to imprisonment for twelve years with a non-parole period of nine years, the sentence to commence on 7 October 2001, the date on which the offence was committed and the date on which the applicant was taken into custody.

facts

3 Shortly after 2.00 p.m. on Sunday 7 October 2001 the applicant forced entry to a house occupied by the victim, her mother, her sister and her two brothers in Bathurst. He was armed with a carving knife. He entered the victim’s bedroom and hid there, remaining until the victim also entered the room. The applicant closed the door, grabbed hold of the victim holding the carving knife to her throat. He told her that if she wanted to live she should “shut up”. He forced her to undress, all the while holding the knife at her throat. He pushed her to the floor and forced her to lie face down. He undressed himself, still holding the knife at the victim’s throat and continuing to threaten her. With his penis he penetrated her vaginally from behind. Throughout the assault the victim was distressed and crying telling the applicant to get off her. The applicant told her to shut up and to stop crying.

4 The victim’s sister opened the bedroom door and disturbed the applicant. The applicant dressed and ran from the bedroom, leaving the house through the bedroom window, still carrying the knife. The applicant was wearing a black beanie across his face. He removed it during the assault and the victim, who was already acquainted with him, recognised him.

5 The victim was fifteen years of age. She had not previously had sexual intercourse.

6 The applicant was arrested later that day, still in possession of a large knife which he attempted to conceal in his clothing. He was interviewed. He denied any involvement in the offence and asserted that he had had a sexual relationship with the victim’s mother, something which the victim’s mother denied. He told police that he had visited the house earlier on the day of the offence but had not gone inside.

7 A victim impact statement was put before the court. This took the form of a report by Anthony Inatey, a consultant psychologist. Mr Inatey assessed the victim on 22 May 2002, seven months after the assault. He considered that she exhibited symptoms consistent with a diagnosis of post-traumatic stress disorder. She was particularly distressed by the circumstance that the assault had occurred in her own bedroom and expressed a wish that the applicant had killed her. Her body language was “closed and frightened”. At the time of assessment she had disturbed eating patterns, had lost trust in people, rarely socialised and was wary and suspicious of the motivation of others. The event had reawakened memories of past traumas in her life, including previous instances of sexual assault. Mr Inatey expressed the view that change for the victim would be slow and gradual and that she had become entrenched into a dysfunctional style of thinking and behaviour. He believed she would have difficult times over the following six to twelve months, and need therapy and support.

8 The applicant did not give evidence in the sentencing proceedings. Some subjective material was placed before the sentencing judge. The applicant was of Aboriginal descent, born either on 25 July 1964 or 1965, and thirty-six or thirty-seven years of age (different birth dates were given in different documents) at the time of the offence. He had a very lengthy criminal record but there was no prior instance of any offence remotely approaching the seriousness of that for which he stood to be sentenced. The longest custodial sentence previously imposed upon him was one of eighteen months with a non-parole period of six months, commencing on 12 December 1999. This sentence was imposed by the District Court at Penrith, on the applicant’s appeal against, inter alia, a conviction of break, enter and steal in the Local Court on 28 January 2000.

9 One of the reports placed before his Honour was entitled “Alcohol and other Drug Report”, on the letterhead of the Department of Corrective Services, Bathurst Correctional Complex, and directed to the Secretary of the NSW Parole Board. It may be assumed that this report was prepared in relation to the offence to the sentence just mentioned.

10 The reporting officer said that the applicant was then thirty-five years of age, the fourth youngest of twelve children, and that he had “great support and much contact” with his mother, good support from his siblings but not as close a relationship with his father as he would have liked. The applicant was said to have been in a de facto relationship which was then of two and a half years’ duration and very good and very strong. Although there were no children of the relationship the applicant had five children from previous relationships, the eldest of whom is eighteen years of age and resides with her mother with whom the applicant continues to have a good relationship.

11 The author of the report traced the applicant’s drug and alcohol history. He was reported to have commenced consuming alcohol at ten years of age and was very soon drinking a quarter of a carton of beer and a quarter of a flagon of wine on a daily basis. At about the same age he was said to have commenced using cannabis; at about thirteen he began using amphetamines. In 1998 he had attended a rehabilitation centre where he remained for approximately two months until being asked to leave. He went to another rehabilitation centre but remained there for only one month.

12 The officer reported that the applicant’s attitude towards counselling had been positive, and that he showed a high level of enthusiasm towards gaining the skills for his rehabilitation from substance abuse. He had been an Aboriginal mentor in the prison and this had boosted his self-esteem. He told the officer that he had been sexually assaulted as a child, which led him to living on the streets in Sydney at the age of ten.

13 A “pre-release report”, dated 21 June 2001, was provided but this report does not advance the matter in any significant way.

14 For the purpose of sentencing on the present charge a psychological report dated 3 January 2002 over the hand of Professor Donald Thomson was provided.

15 Professor Thomson reported that the applicant’s father, who lives with his wife in Walgett, is highly regarded in the community and is a member of the board of ATSIC. The applicant’s siblings are all in employment and are either married and raising their families or living with their parents. The applicant attended St Joseph’s school in Walgett but was not a good student and left after completing year six. He told Professor Thomson that his childhood was reasonably happy but said that he had been anally raped at the age of twelve and that this event had “stuffed him up”. At thirteen years of age he ran away to Sydney and lived on the streets for a number of years.

16 The only employment he has had has been casual seasonal rural work such as cotton picking, fencing and working in sheds.

17 Professor Thomson referred to the relationships the applicant has had, and the five children that have been born of those relationships. Of the relationships Professor Thomson said that they were characterised by violence, alcohol and drugs. At least two of them had been formed with women the applicant met in drug rehabilitation programs.

18 Professor Thomson reported that the applicant was cooperative and keen to participate in the assessment session. When asked why he had committed the offence he said that he had been on “speed” for the preceding week, had not slept for over a week previously, and did not know why he did what he did which was as a result of his drug-induced confusion. He repeatedly expressed his remorse to Dr Thomson and said that raping a fifteen year-old girl violated any code of conduct and was totally out of character. As a result of what he had done he would never touch drugs again.

the application for leave to appeal

19 On behalf of the applicant four grounds of appeal were pleaded. These were:

“(1) The sentence imposed was manifestly excessive and that some other lesser sentence was warranted.

(2) His Honour erred in failing to give the applicant the full and appropriate benefit for his plea of guilty.

(3) His Honour erred in approach by starting the sentence at the available maximum and working down from that figure.

(4) His Honour erred in a significant factual finding and in taking that error into account in aggravation of sentence.”

ground two: discount for the guilty plea

20 In relation to the plea of guilty, the sentencing judge recounted the chronology, noting that the applicant had been arrested on 7 October 2001 and interviewed, and that he then denied the offence; that on 25 March 2002, following a paper committal hearing in the Local Court, the applicant was committed to the District Court for trial; that on 23 April 2002 a trial date for the week commencing 3 June 2002 was fixed; that on 15 May 2002 the applicant’s counsel told the Director of Public Prosecutions that the applicant would plead guilty and asked for arrangements to be made for the applicant to be arraigned on 20 May 2002; and that this eventuated. His Honour noted that the guilty plea was given after DNA evidence confirmed that his semen was in the victim’s vagina. His Honour said:

“It (the plea) came at the eleventh hour. However, it confirms the complainant’s allegation and it relieved her of the need to give evidence at the offender’s trial. Also, it saved the time and cost of a trial, however short or long it may have been. Moreover, it shows the offender’s acceptance of responsibility for what he did and his desire to facilitate the course of justice. Because of the lateness of it, I intend to discount his sentence by ten per cent on account of the guilty plea.”

21 It was argued that, in referring to the DNA evidence, his Honour was taking into account, in assessing the utilitarian value of the plea, the strength of the Crown case, and that this is impermissible: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. I do not think this is so. It is true that the reference to the DNA evidence, if it stood alone, could give the impression that his Honour did consider the strength of the Crown case to be material to the assessment of the utilitarian value of the plea. However, it does not stand alone. His Honour observed that the plea came “at the eleventh hour” and then referred to matters truly and properly relevant to the assessment of the utilitarian value. He expressly stated that he intended to discount the sentence only by ten per cent “because of the lateness of it”.

22 Issue was taken with the finding that the plea came “at the eleventh hour”. It was said that allowance must be made for the fact that the matter had been listed for a country circuit and that the fact that a plea would be entered was indicated two weeks prior to trial, within days of the applicant’s receiving advice from experienced counsel.

23 This court, in the guideline judgment in Thomson and Houlton indicated a range of ten to twenty-five per cent as an appropriate level of discount to be applied to a sentence following a guilty plea. The factors mentioned by the sentencing judge are all relevant to the value of the plea. The timing of the plea is a very significant matter. An early plea involves considerable saving to the state in the costs of investigation and preparation. In this case, the investigation proceeded to the point of the obtaining of DNA analysis. The preparation continued to the point of a paper committal hearing and the fixing of a date for trial. Another relevant consideration is the saving of the anxiety of witnesses as well as the inconvenience and sometimes trauma for them of having to give evidence. Here, it is true, the victim was, eventually, spared the need to recount her experiences in open court and to relive the horrors of what had happened to her. But that did come at a very late stage and she lived with the expectation that she would have to undergo that ordeal from October 2001 until May 2002, two weeks before the date when she expected to give evidence.

24 I do not think the applicant could legitimately have expected a discount for the plea in these circumstances to be significantly greater than the bottom of the range specified in Thomson and Houlton, and I am satisfied that to allow a ten per cent discount was within the discretion open to the sentencing judge. I would reject this ground of the application.

ground three: “top-down sentencing”

25 This ground concerned the approach taken by the sentencing judge to the fixing of the appropriate term. It is necessary to extract some further passages from the remarks on sentence. His Honour said:

“I know that the prescribed punishment for the offence is imprisonment for a maximum of twenty years. I appreciate that this punishment is reserved for the worst type of case. I wonder what is the worst type of case. I wonder what an offender must do to fit within the worst-case category. I suppose that for any case there would be a worse case. I wonder where the subject case fits into the range of cases. I accept that it cannot fit within the worst type of case category. I know that it does not fit within the least serious type of case category. The offender’s counsel, in suggesting that the punishment should be imprisonment for six years, allowing a discount of twenty-five per cent on account of the guilty plea, suggests that the offence fits within the bottom forty per cent category. I do not agree. I consider that the offence fits at the seventy-five per cent category. I have determined, taking into account what I have said, that putting aside the discount for the guilty plea and other favourable subjective features, that the punishment for this offence is imprisonment for fifteen years. I discount that period by ten per cent, that is one year six months, on account of the guilty plea and another ten per cent on account of the other favourable circumstances to twelve years.”

26 Criticism was made of this mathematical approach. Reference was made to R v Gallagher (1991) 23 NSWLR 230, per Gleeson CJ. I think the criticism has some merit. While it may be correct to say that in every case a sentencing judge must have regard to the maximum penalty provided by the relevant statute, and fit the offence under consideration into some kind of hierarchy by reference to that maximum, it is, in my view, potentially productive of error to attempt the kind of mathematical formulation that the sentencing judge in this case did. I am not sure that, on its own, this approach would warrant a finding that error infected the sentencing process and, because of the conclusion I have come to in relation to ground four, it is unnecessary to determine that matter.

ground four: factual error

27 In recounting the facts of the offence the sentencing judge said that, after ordering the victim to lie face down, the applicant attempted but failed to penetrate her anus with his erect penis, and then penetrated her vaginally. Later, again in reference to the facts of the offence, he said that the applicant attempted to rape the victim anally before raping her vaginally. Finally, in considering the appropriate sentence, he said:

“But I must not lose sight of the fact that I am to impose sentence on a middle-aged man who vaginally raped a fifteen year-old child in the bedroom of her own home whilst he held a knife at her throat and after attempting to rape her anally.”

28 There was, as was submitted on behalf of the applicant, no evidence that would justify a finding of fact (which would have to be found beyond reasonable doubt) that the applicant had attempted anal intercourse with the victim. In the victim’s statement the following appears:

“I could feel him behind me and I felt his penis which was hard at my backside. He was trying to put himself inside me.”

That alone may convey the impression that the applicant had attempted to penetrate the victim anally. However, it is immediately followed by:

“He tried at first to put himself inside my vagina, but he couldn’t. I don’t know why. He then finally pushed himself inside me and I could feel his hard penis inside of my vagina.”

29 I accept that it was an error of fact to state that the applicant had attempted anal rape of the victim. Implicitly, counsel who appeared for the Crown on the application accepted that this constituted a factual error. He added, however, that it was difficult to conclude that the finding had any material bearing on the sentence.

30 I do not accept that proposition. Firstly, the sentencing judge made the assertion on no fewer than three separate occasions in his sentencing remarks. Secondly, it is plainly a matter of aggravation. I appreciate the Crown’s submission that, had such an event occurred, it could have supported a separate charge. This submission was put, I take it, in order to suggest that the sentencing judge would have excluded it from consideration on the principles stated in R v De Simoni (1981) 147 CLR 383. I am not satisfied that the factual finding was excluded from consideration. Everything points to it having been taken into account as a circumstance aggravating the offence.

31 I am satisfied that error has been demonstrated and that this court is required to intervene.

ground one: manifestly excessive

32 A number of matters were put on behalf of the applicant under this ground of the application. Reference was made to what was described as:

“a number of particularly harsh judgments in relation to the applicant’s background, upbringing, education, employment, marital history, health, drug and alcohol history, character and his contrition (or, as his Honour found, its absence).”

33 In relation to rehabilitation the sentencing judge said:

“However, this offender has not rehabilitated himself or been rehabilitated by others, having regard to the fact that he has been dealt with, as I have said already, for one hundred and eleven previous offences. This offence was committed, as I have said already, less than three months after when he had been released from prison. I doubt that the offender will rehabilitate. I doubt that he is motivated towards rehabilitation. I suspect, as history has the habit of repeating itself, that his criminal history will repeat itself on his release from prison.”

34 Counsel for the applicant pointed to the evidence, to which I have already referred, of the pre-release report and the psychological report. I do not think these undermine the assessment made by the sentencing judge. In my opinion the assessment, although perhaps “harsh”, was open to his Honour. It was pointed out that this was the first offence of its kind by the applicant (contrary to the account given by Professor Thomson) and that he had had only one earlier sexual offence as a juvenile. That was an assault and an offence of sexual assault charged under s61D of the Crimes Act in respect of which the applicant was committed to an institution but the sentence suspended upon his entering into a recognisance of good behaviour for three years.

35 That this was the applicant’s first offence of this kind may be accepted but that does not impinge upon the extreme seriousness of the offence committed by the applicant. He invaded the sanctity, not only of the victim’s home, but of her bedroom, and subjected her to a degrading and sustained assault, with the threat of the use of a knife and threats to her life. He was acquainted with the victim and her family and must therefore be taken to have known of her approximate age. It is relevant that the victim was sexually inexperienced.

36 A further matter raised for this ground was that the sentencing judge made no reference to the principles stated by Wood J (as the Chief Judge then was) in R v Fernando (1992) 76 A Crim R 58. In that matter Wood J was sentencing an Aboriginal offender and made reference to a history and pattern of deprivation and disadvantage which he considered to be relevant to the assessment of culpability and therefore the determination of sentence. As I have previously remarked, it is an error to regard Fernando as stating any principle applicable in general to the sentencing of Aboriginal people. Fernando states principles about taking into account a history and pattern of deprivation. The mere fact that an offender who has experienced that history and pattern is Aboriginal is coincidental. In this case, there was no evidence that the applicant had experienced that history or pattern, and indeed the evidence was to the contrary. There was no error in the non-application of the principles stated in Fernando. Those principles did not apply.

37 Finally, reference was made to what might be described as comparable cases. It was submitted that where similar sentences had been imposed, the offences were much more serious than the applicant’s, and that in other cases that were more serious, much lesser sentences had been imposed.

38 I do not accept that the sentence was manifestly excessive, although I do accept that, by reference to comparable cases, it was a heavy sentence.

39 Having regard to the error identified in relation to the factual findings by the sentencing judge, it is necessary for this court to re-sentence. Against that possibility, the court received additional evidence. The applicant has undertaken a number of courses whilst in custody and was described by a senior correctional officer as having made a good effort towards beginning studies under difficult circumstances. He was seen by a psychologist in September 2002 complaining of stress and mild depression and a history of suicidal ideation although he was said not to be intending to act on those ideas.

40 The applicant himself affirmed an affidavit in which he said he had secured work as the Aboriginal delegate and had been acting in that role for over twelve months. He believed he was assisting in achieving racial harmony in the prison. He said he had asked to see the drug and alcohol worker but had not, at the date of affirming the affidavit (17 April 2003) seen that person. He affirmed:

“Now that I am totally drug free and have had time to reflect, I accept without question that my crime deserves a harsh penalty. At times I can barely recognise that the person who has committed this hurt upon the victim, is in fact me. I feel that I am not a man. I am deeply ashamed of what I have done and feel that I deserve to be punished.”

41 He said that he had requested participation in the sex offenders’ program but had been advised that he was not eligible until he achieved the appropriate classification and had served the majority of his sentence. He said that he had not used drugs whilst in custody, despite their ready availability and did not ever wish to use drugs again as he believed they contributed to his commission of “such a horrible crime”. For geographic reasons, and because he understood that his family found it difficult to come to terms with his crime, he receives few visits from his family.

42 These indications of rehabilitation are certainly hopeful. Only time will tell whether that hope is justified. In my opinion, as the court is obliged to re-sentence, it should take the material to which I have referred into account. I would conclude, as a matter of fact, and on the basis of events that post-date the original sentencing, that the applicant has prospects of rehabilitation. I propose that, in lieu of the sentence imposed by the sentencing judge, the applicant be sentenced to imprisonment for ten years, commencing on 7 October 2001, with a non-parole period of period of seven years and six months, the non-parole period to expire on 6 April 2009.

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Last Modified: 05/22/2003