Stephen Dennis v The Queen
[2017] VSCA 75
•4 April 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0252
| STEPHEN DENNIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 4 April 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 75 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions (Cth) v Dennis [2016] VCC 1775 (Judge Lawson) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Access child pornography material using a carriage service – Fail to comply with reporting obligations under the Sex Offender Registration Act 2004 – Knowingly possess child pornography material – Total effective sentence of four years and six months’ imprisonment – Non-parole period of two years and six months – Error as to objective seriousness of the offending – Finding that offending was escalating – Manifest excess – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Victoria Legal Aid |
| For the Respondent | No appearance | Mr John Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, Stephen Dennis (‘Dennis’), applies for leave to appeal against the sentence imposed on him in the County Court. He pleaded guilty to one charge of accessing child pornography material using a carriage service, one charge of failure to comply with reporting obligations under the Sex Offender Registration Act 2004, and one charge of knowingly possessing child pornography material. Her Honour Judge Lawson imposed the following sentence on 16 November 2016:
| Charge | Offence | Maximum | Sentence | Cumulation / Commencement |
| 1 | Access child pornography material using a carriage service contrary to section 474.19(1) of the Criminal Code (Cth) | 15 years’ imprisonment | 3 years and 6 months’ imprisonment with a non-parole period of one year and 6 months | To commence 1 year after sentence on charge 3 commences |
| 2 | Fail to comply with reporting obligations contrary to section 46(1) of the Sex Offender Registration Act 2004 (Vic) | 5 years’ imprisonment | 3 months’ imprisonment | Concurrent |
| 3 | Knowingly possess child pornography material contrary to section 70 of the Crimes Act 1958 (Vic) | 5 years’ imprisonment | 18 months’ imprisonment with a non-parole period of 12 months | Base |
| Total effective sentence: | 4 years and 6 months’ imprisonment | |||
| Non-parole period: | 2 years and 6 months | |||
| Pre-sentence detention declared: | 295 days | |||
| 6AAA statement: 6 years’ imprisonment with a non-parole period of 4 years | ||||
| Other relevant orders: Forfeiture and destruction order Registration under the Sex Offender Registration Act 2004 for life. Pursuant to section 6F of the Sentencing Act 1991 the offender is sentenced as a serious sexual offender in respect of charge 3. | ||||
For the reasons that follow, I would grant leave to appeal.
Nature of the offending
Charges 1 and 3 relate to child pornography images seized during an arrest warrant executed on Dennis’ home on 10 December 2014 after he was identified online in the course of police investigations.
The seized child pornography material was categorised in accordance with the Australian National Victim Identification Library (ANVIL) classifications as follows:
Category Description Images Videos Level 1 Depictions of children with no sexual activity 891 11 Level 2 Solo masturbation by a child or non-penetrative sex acts between children 266 70 Level 3 Non-penetrative sexual activity between children and adults; 35 11 Level 4 Penetrative sexual activity between children and adults 213 124 Level 5 Sadism, Bestiality or Humiliation or Child Abuse 0 1 Level 6 Anime, cartoon, comics, and drawings depicting children engaged in sexual poses or activity 5 0 TOTAL 1,410 217
The material concerned children who were primarily of a pre-pubescent age, including some younger children and toddlers. The material included electronic items and manila folders.
Dennis and his partner Mr Wei Li (‘Li’) were both arrested. Li was subsequently released without charge.
Dennis made a number of admissions in his record of interview including that:
(a)During the execution of the search warrant, police located child pornography, and there were video clips, pictures and stories;
(b)Most of the child pornography material was stored on hard drives and CDs, some was stored on phones, memory sticks and a laptop computer;
(c) Child pornography means naked children under a certain age;
(d)He obtained the material from various websites and emails over approximately five years;
(e)During the search warrant, police observed his computer displaying two young males lying on a bed and one was naked, and he had been viewing the material approximately one hour before the search warrant was executed;
(f)He had a folder containing a story that he had printed out from a website. The majority of the stories that he had were about children: ‘Children on children’, ‘Children with older people’ or ‘First time’;
(g)He had two folders containing numerous printed out photos of young children in naked positions;
(h)When asked why he accessed child pornography, he stated ‘I don’t know. I can’t explain it. Just something in my head thinks it’s good. When I saw it, I think it looks good. The violent images doesn’t do anything, but when it’s just a naked male, I get a good feeling inside of me’;
(i)He acknowledged that he knew the legal implications of owning child pornography were ‘really bad’ and that he could get up to a long prison sentence;
(j)He had tried not to download child pornography before but, he told police that it's just like smoking to him, he cannot give it up;
(k)He said that it is not a sexual addiction, it is just addiction that makes him feel good inside and he cannot explain why it makes him feel good inside;
(l)He did not think that he could stop accessing child pornography without support.[1]
[1]See DPP (Cth) v Dennis [2016] VCC 1775 [31] (‘Reasons’).
Charge 2 relates to a failure to comply with reporting obligations under the Victorian Sex Offender Register. Dennis was placed on the register on 20 August 2014 for prior sexual offending in Tasmania that came to light after he applied for a Working with Children Check in Victoria. The failure to comply with his reporting obligations therefore applies to the period from when he was served with notice of his registration on 20 August 2014 to the date the arrest was laid on 10 December 2014. Specifically, Dennis failed to comply with his reporting obligations in that he:
·failed to report his employment with his business ‘Green Clippings’;
·failed to report various email addresses; and
·failed to report his use of Facebook and other social network sites.[2]
[2]Ibid [34].
The judge’s reasons
The judge noted that within Dennis’ criminal record there were relevant convictions for sexual offending, including the possession of pornography. She noted that he was indicted for aggravated sexual assault in June 1993 at Wollongong District Court. This related to an occasion when Dennis (then aged 21) agreed to engage in consensual sexual activity with a young male, aged 18, whom he had met at a hotel but then the male victim changed his mind and wanted to cease the sexual activity. Dennis persisted and sexually assaulted the victim.
Dennis was also convicted in Hobart in August 2003 of multiple relevant offences. These included four charges of possessing child abuse product; two charges of reproducing a child abuse product; making a child abuse product; and multiple charges of dishonestly acquiring financial advantage. The material was accessed online at a library. Dennis would save images to a disc or email them to himself to save them onto his hard drive at home. This involved images of naked males aged seven to 80 years of age.
In Launceston in March 2004 Dennis pleaded guilty to a charge of exposing person. In March 2005 at Hobart Dennis pleaded guilty to, amongst other charges, two charges of possessing child abuse product.
Her Honour said:
It is important to note that you have never received any treatment in respect to your prior sexual offending in the past. The current offending does not involve contact sexual offences, but does appear to represent an escalation in your offending concerning accessing child pornography and possession of child pornography.[3]
[3]Ibid [21].
The judge noted that the videos ranged in length up to approximately 35 minutes. The one level 5 video depicted an adult male anally penetrating a boy of approximately six years, while he was unconscious.
She accepted that, because of Dennis’ documented neuropsychological condition, the abuse of the reporting obligations was not flagrant. She considered, however, that the offending relating to charges 1 and 3 was ‘objectively very serious’.[4] She recorded the following matters:
·that the offence of accessing child pornography took place over a lengthy period, four years and eight months, and was not an isolated act;
·noting that Dennis stood to be sentenced in respect of charge 3 (knowingly possessing child pornography) only in respect of one day (10 December 2014), that a significant number of children were involved and thereby victimised;
·that although there was no evidence that Dennis paid for the images, the market for child pornography encourages its production, paid or not, and that the dissemination and use of the material further serves to traumatise victims and contributes directly to the abuse of the children depicted in the images;
·that there was no evidence that the images were in Dennis’ possession for the purpose of sale or further distribution; that there was no appreciable risk of the material being seen or acquired by vulnerable persons, including children; and no indication that Dennis was ‘proximate’ to those responsible for bringing the material into existence.[5]
[4]Ibid [41].
[5]Ibid.
With respect to Dennis’ personal history, the judge noted that he was a man who identifies as being homosexual who was bullied and ostracised at school because of his sexuality.[6] He was assessed as having learning difficulties at around age 16. At around that time, he suffered a brain injury as a consequence of a motorcycle accident.
[6]Ibid [55].
A report was prepared by Mr Cummins, forensic psychologist, upon which the judge relied.[7] Mr Cummins expressed the opinion that Dennis has a very adolescent-like interpersonal style and presents as, psychologically, a quite vulnerable person. He considered that Dennis’ presentation was consistent with a diagnosis of Autism Spectrum Disorder. He foreshadowed that Dennis’ current mental health would be destabilised if he were to be incarcerated.
[7]Ibid [66].
Dr Kristen Clayer, senior registrar in forensic psychiatry at the Victorian Institute of Forensic Mental Health, considered that Dennis may have a specific learning disorder or a mild intellectual disability.[8] She considered that Dennis had some features of autistic spectrum disorder but, without more, could not diagnose the condition. She considered that Dennis suffered mild to moderate depression and anxiety intermittently. She expressed the view that Dennis had used child pornography to regulate his emotions. Significantly, the judge recorded Dr Clayer’s assessment that Dennis met the DSM-V criteria for paedophilia, that is, he was sexually attracted to young males.
[8]Ibid [67].
Her Honour noted that both Mr Cummins and Dr Clayer agree that Dennis would benefit from a sex offender treatment program. She also noted that principles five and six of Verdins applied and she took that into account in her sentencing disposition, especially the consideration that imprisonment will be more burdensome than for the ordinary gaol inmate and there is a risk of Dennis’ mental health deteriorating.
Expanding further on the neuropsychological condition suffered by Dennis, her Honour considered the assessment by Martin Jackson which she understood as confirming that Dennis has:
·a longstanding verbal learning disorder;
·verbal intellectual abilities that range from extremely low to low average range;
·basic perceptual processing speed that is in the lower average to average range, with borderline verbal processing speed;
·an immediate memory span that is in the average range with a working memory span and sequencing span that is low average;
·demonstrated language strengths in the low average range with a borderline capacity in the reading of irregular words and letter fluency;
·basic perceptual executive skill, including planning, organisation and visual logical thinking that is in the average range, although more complex perceptual planning and organisation is poor; and
·verbal executive skills that are generally in the extremely low to borderline range.[9]
[9]Ibid [75].
Mr Jackson considered that the specific areas of impairment that were identified strongly suggested the presence of two specific areas of brain damage in the left frontal lobe and right temporal lobe, most likely explained by a severe traumatic brain injury Dennis sustained in a motorcycle accident when he was aged 16.[10] Her Honour noted that Mr Jackson said that, as the traumatic brain injury is of a permanent nature, it would have been present during the offending.[11] She also noted that it was Mr Jackson’s opinion that the neurophysiological condition would have had a significant impact on the ability of Dennis to remember and follow his reporting obligations.[12] However, importantly, Mr Jackson considered that neurophysiological condition is not related to the offending relating to child pornography. The judge said:
In terms of the offending relating to child pornography, he [Mr Jackson] considered that your condition is not related to that, other than you do have a condition that makes it somewhat difficult for you to learn from your mistakes. The actual issue of child pornography or paedophilia is not related to your neurophysiological condition.[13]
[10]Ibid [78].
[11]Ibid [81].
[12]Ibid [84].
[13]Ibid [85] (emphasis added).
With respect to mitigating factors, her Honour took into account the plea of guilty and the fact it was made at the earliest stage which gives real social utility by avoiding the costs of a trial and also indicates the willingness of Dennis to facilitate justice.[14] She considered that the co-operation showed by Dennis and the fact that he did not deny possession, despite the pornography being scattered throughout the communal areas of his house, was evidence of genuine remorse.[15] She also considered that Dennis had showed insight into his offending behaviour and was willing to have treatment to address that behaviour.[16] She noted that Dennis had expressed the desire to not want to re-offend in the future.[17]
[14]Ibid [89].
[15]Ibid [90].
[16]Ibid [91].
[17]Ibid [92].
The judge also took into account that some delay had occurred in bringing the prosecution.[18] She recognised that Dennis had used his time while on bail to obtain some counselling and that he had repeatedly indicated his willingness to undertake a sex offender’s treatment program.[19]
[18]Ibid [93].
[19]Ibid [94]–[95].
Her Honour summarised the expert opinions expressed with respect to the risk of reoffending. Mr Cummins viewed the risk as low to moderate for viewing child pornography and low for engaging in contact sexual offences. He did not consider that Dennis had a psychopathic personality disorder.[20] Dr Clayer considered that Dennis had a low risk of any contact sexual offending but a moderate to high risk of further viewing, or downloading, or transmission, of child pornography.[21] The judge noted that Belina Pastuovic, in her pre-sentence report, assessed Dennis as having a high risk of general re-offending.[22] Ms Tracey Allen, senior clinician, Corrections Victoria, also assessed Dennis as falling in the high risk category for re-offending.[23] The judge concluded:
Overall, I consider, given your recent evolving insight into the effects of child pornography on victims, your commitment to engaging in offence behaviour management and treatment and your disgust at the offending, means that I assess your risk of re-offending in a like manner as being moderate to high. That can be lowered provided that you do undertake the recommended treatment. It is essential that your willingness to have treatment be implemented effectively, noting in particular the information contained in the neuropsychological assessment.[24]
[20]Ibid [96].
[21]Ibid [97].
[22]Ibid [98].
[23]Ibid [99].
[24]Ibid [101].
She also noted the ongoing support of Mr Li.
With respect to charge 1, the judge took into account all of the matters in s 16A of the Crimes Act 1914 (Cth), those matters being relevant because charge 1 is a federal offence.[25] She noted s 5 of the Sentencing Act1991 with respect to charges 2 and 3, the State offences, and the need to impose just punishment.[26] She also noted that, with respect to charge 3, Dennis was to be sentenced as a serious sexual offender. She was guided by the principles identified in Director of Public Prosecutions (Cth) v Garside.[27]
[25]Ibid [109].
[26]Ibid [110].
[27][2016] VSCA 74 (‘Garside’).
The judge treated charge 1 as ‘the most serious of the offending and it is a serious example, having regard to the lengthy period of the offending and the nature and volume of the images’.[28] She considered the offending in charge 2 ‘to be at the lower end of the scale of seriousness, having regard to your particular documented learning difficulties and the current neuropsychological assessment’.[29] She continued:
I do not consider this to be a flagrant abuse and I accept that [Dennis] would have had some difficulties comprehending and understanding all the reporting requirements, and to an extent, that explains your offending. Having said that, you were still aware of the SORA requirements and you should have complied.[30]
[28]Reasons [111].
[29]Ibid [112].
[30]Ibid.
With respect to charge 3, she ‘noted it was for one day only, but still it refers to a significant body of material and it is a serious example of this sort of offence’.[31]
[31]Ibid [113].
Her Honour noted that Dennis had a relevant prior criminal history with respect to charges 1 and 3, as described above.[32] She accepted that although the two offences substantially overlapped with each other, the offences of accessing and possessing child pornography are separate and distinct offences, are directed at distinct vices, and require a sentence that reflects the total criminality of the two offences.[33] Her Honour emphasised the need for both specific and general deterrence and denunciation.[34]
[32]See [9]–[11] above.
[33]Reasons [114].
[34]Ibid [118], [45].
She considered that, in the circumstances of the case, ‘the only just sentence, and one that reflects the community’s abhorrence of child [exploitation] through accessing and possessing child pornography material’[35] was a term of imprisonment and not a community disposition.
[35]Ibid [118].
Grounds of appeal
Dennis relies on three grounds of appeal:
1. The learned sentencing Judge erred by finding that the offending on charges 1 and 3 was objectively very serious.
2. The learned sentencing Judge erred by making a finding that the Applicant’s offending was escalating. This finding was not reasonably open on the evidence.
3. The sentences imposed on charge 1 and charge 3, and the TES, are manifestly excessive, having particular regard to:
· The objective seriousness of the offending;
· Current sentencing practices;
· The findings made in mitigation;
· The findings made in relation to the Applicant’s neuropsychological condition, prior criminal history, risk of reoffending and prospects for rehabilitation; and
· The failure to order great concurrency between charges 1 and 3.[36]
[36]Notice of Application for Leave to Appeal against Sentence, 14 December 2016.
As grounds 1 and 3 raise overlapping issues I will consider them together before examining ground 2.
Grounds 1 and 3 – objective gravity of offending and manifest excess
While Dennis accepts that any sexual offending involving the exploitation of children is serious, he submits that his offending is not a ‘very serious’ example of such offending. Dennis accepts that her Honour properly relied on Garside and identified factors relevant to objective seriousness, as described above.[37] Nevertheless, he submits that the following findings made by the judge prevent the offending in charges 1 and 3 as being properly characterised as very serious:
[37]See [14] above.
(1)The combined number of images and videos accessed/possessed was about 1,600 – the number was moderate compared to other cases;
(2)The material was not for the purpose of sale or further distribution;
(3)Dennis was not to profit from the offence;
(4)Dennis did not pay for the material;
(5)Dennis was not proximate to those who had brought the material into existence, and had no involvement in the bringing of the material into existence;
(6)There was no appreciable risk of the material being seen or acquired by vulnerable persons, namely children; and
(7)Charge 3 related to the possession of material on one day only.
Dennis submits that those factors, combined with the strength of the mitigatory factors, does not warrant a sentence of such a severity that it puts Dennis within the top 5 per cent of offenders. The Sentencing Advisory Council’s online tool shows that between July 2010 and June 2015 33.3 per cent of offenders received a straight term of imprisonment (with 56.3 per cent of offenders receiving a wholly or partially suspended sentence, all of which were of two and a half years or less) and only 12 per cent of those received a term of three or more years. Less than five per cent of offenders who received a straight term of imprisonment were sentenced to more than four years’ imprisonment.
It cannot be denied that there is a strong connection between accessing and possessing child pornography and the exploitation of children regardless of whether an offender is proximate or involved in its production. The connection lies, as the judge observed,[38] in the creation and maintenance of a market that encourages the sexual exploitation of children. This connection was explained by Harper JA in Director of Public Prosecutions v D’Alessandro:[39]
[T]he prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration ... [and] those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it.[40]
[38]Ibid.
[39](2010) 26 VR 477.
[40]Ibid 483 [21] (citations omitted).
Harper JA made it plain that it is necessary for the courts to demonstrate that child pornography will not be tolerated:
[T]here are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. … there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied. The sentencing judge appreciated this when he added:
No matter where it occurs and no matter to whom it occurs, child sexual abuse cannot be tolerated. Australian courts must do their part to eliminate this horrendous activity … It was this attitude that resulted in the creation of these offences and has motivated the courts to enforce the attitude to the extent that they can. For this reason, a very significant sentencing factor in this instance is what is known as general deterrence; that is, the desire to point out to the community that accessing or processing or using child pornography in any way is simply beyond the pale. It will not be tolerated.
I respectfully agree with everything his Honour said.[41]
[41]Ibid 484 [23]-[24].
Nevertheless, in my view it is reasonably arguable that the circumstances of this case, set against current sentencing practice, indicate that the sentence imposed ‘stands out’. This is arguably at odds with the nature of the offending which, assessed in the light of the mitigatory factors, does not warrant a ‘stand out’ sentence. Despite the morally deplorable nature of the offences, I am unable to conclude that there is no reasonable prospect that the Court of Appeal might not impose a less severe sentence than the sentence first imposed.[42] I consider that leave to appeal ought to be granted with respect to grounds 1 and 3.
[42]Criminal Procedure Act 2009, s 280(1)(a).
Ground 2 – escalation of offending
Dennis relies on his significant criminal history to submit that it was not open to the judge to make a finding that his offending had escalated. He also relies on the conclusion of Tracey Allen in her pre-sentence report that there ‘is no evidence to support endorsement for ... escalation in [Dennis’] sexual offending’. He points to the absence of any further contact offences.
The Crown submits that the finding of escalation was reasonably open to the judge because despite having prior convictions for child offending in 2003 and 2005, Dennis continued to offend in the same manner between 2010 and 2014 and admitted to offending for a period of around five years.
In my view it is reasonably arguable that the evidence demonstrated persistence in offending rather than escalation. Of the persistence Tracey Allen said:
Despite being apprehended, charged, convicted and sanctioned previously, this has failed to deter future sexual offending. This is considered evidence for chronicity of sexual violence, and this is endorsed for past and current relevance.
Nevertheless, Ms Allen did not endorse the factor of escalation and, in those circumstances, ground 2 is reasonably arguable.
Conclusion
Leave to appeal against sentence should be granted.
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