R v Dennis
[2013] NZHC 536
•19 March 2013
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-070-2407 [2013] NZHC 536
THE QUEEN
v
MICHAEL PATRICK DENNIS
Hearing: 19 March 2013 (Heard at Rotorua)
Counsel: J J Rhodes for the Crown
A C Balme for Mr Dennis
Judgment: 19 March 2013
SENTENCE OF WOODHOUSE J
Solicitors / Counsel:
Mr J J Rhodes, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga
Mr A C Balme, Barrister, Tauranga
R V DENNIS HC TAU CRI-2012-070-2407 [19 March 2013]
[1] Mr Dennis, you may remain seated until I come to impose the formal sentence.
[2] I want to make clear to you at the outset that there will not be a sentence of preventive detention. I have said that, in part, because I do not think that should simply be hanging over you until I finish what I am about to say. But having said that, I do ask that you pay attention to what is being said because this is a case which has troubled me and you certainly have been very close to a sentence of preventive detention. I am not sure whether you are fully aware of what is involved with such a sentence, but it is effectively a sentence which is binding on you for the rest of your life and you can be recalled to prison pursuant to that sentence. I may very well repeat myself at the end. But if there is any further offending of this nature you really do face a serious likelihood of a sentence of preventive detention.
[3] A critical thing here – and I will come back to this – is the real need for you to get intensive treatment of the sort that is available. That has to be provided to you. But equally vital is that you fully participate in it. You do not go into it with fixed notions about yourself; you have got to fully engage in it.
[4] You appear for sentence for three sexual offences against a six year old girl. There is one offence of sexual violation by unlawful sexual connection. This has a maximum finite, or determinate, sentence of 20 years imprisonment. That says a lot by itself, doesn’t it Mr Dennis? And you are acknowledging to me that you do appreciate this. This is serious offending. There are two offences of indecent assault on a child under 12, with a maximum penalty of 10 years imprisonment for those two other offences. You pleaded guilty to the charges.
The facts
[5] An outline of the facts is as follows. The complainant is the daughter of a woman with whom you had had a relationship in the 1980s. The relationship was resumed towards the beginning of 2012. You visited the complainant’s mother over a period of five days in May 2012. Over that period the offences were committed.
You violated this young girl – six years of age – by forcing your finger into her
vagina. This was done after she had tried to cross her legs but you had tried to keep
her legs wide. Immediately before this there was an indecent assault by kissing her on the lips and touching her genital area. The second offence of indecent assault is a representative charge relating to a number of occasions when you touched her vaginal area. The complainant said this occurred on most days when you were staying at her home.
Information considered
[6] I have received and read the following, in addition to the submissions for the
Crown and the submissions from Mr Balme on your behalf:
(a) Victim impact statements on behalf of the complainant, and from the complainant’s mother on her own behalf, and advice from a counsellor who has been assisting the complainant and advice from another counsellor assisting her mother.
(b)Secondly, the summary of facts which you have accepted through your guilty plea and through Mr Balme.
(c) Thirdly, a psychiatrist’s report dated 2 November 2012 provided for
the assessment of preventive detention.
(d) Fourth, a psychologist’s report dated 28 February 2013, also to assess
preventive detention.
(e) Fifth, the pre-sentence report dated 29 September 2012.
(f) And finally, and significantly, the decision of the Supreme Court of Victoria in Australia dated 10 May 2000 dismissing your appeal against sentence after pleading guilty to 23 counts of sexual penetration of a child under the age of 10 years and seven counts of
committing an indecent act with a child under the age of 16 years.[1]
[1] R v Dennis [2000] VSCA 81 (10 May 2000).
You were sentenced to 12 years imprisonment with a non-parole
period of 9 ½ years.
[7] I do not intend to record many details from these documents but I will need to refer to some. I have taken the relevant information into account. This includes, importantly Mr Dennis, the victim impact statements. The harm to the complainant and to her mother has been substantial and it may be long lasting. And one of the critical things – and I say this having regard to the specialist reports – is for you to recognise this. This is why there are sentences of the maximum length that I referred to.
[8] I will briefly note details of the offending in Australia because it is particularly relevant. These were offences committed by you between November
1995 and February 1998 when you were living in Australia. You committed the offences when you were aged between 31 and 33. Your victim was aged between 7 and 9. She was the daughter of a family living next door to you. Having gained the trust of your victim’s family and of the victim you then committed the offences. The offences included penetration of the vagina with your penis, tongue and finger.
[9] You are now aged 48. Apart from the convictions in Australia, you have no previous convictions of any relevance. To avoid any uncertainty in that regard I note that there were two minor property offences in 1979 in New Zealand, dealt with in the Youth Court, and what looks like a minor a burglary in 1981 in New Zealand. Those offences have no relevance. You moved to Australia around 1987. You were sentenced in Australia in December 1988. You were deported from Australia back to New Zealand in 2008.
Determinate sentence
[10] I will deal first with the determinate or fixed prison sentence.
upper end in terms of the Court of Appeal guideline case R v AM,[2] but the starting point will be 5 years.
[2] R v AM [2010] NZCA 114 (CA).
[12] Mr Balme also accepts, quite properly, that there should be an increase for the previous offending. This is not to punish you twice Mr Dennis. It is because the previous offending and the sentence that was imposed then, and your failure to take full advantage of the treatment that was made available – and I will come back to that – are aggravating factors in relation to you on this sentence. Mr Balme submitted that the increase, taking account of the previous offending and the other matters I have noted, might be around 12 months. But he accepted that an increase of 18 months would not be excessive.
[13] I consider that the increase in your case should be 18 months imprisonment. That takes the sentence, at that point, to 6 years and 6 months.
[14] You are entitled to a reduction of 20% for the guilty pleas. That produces an end sentence, Mr Dennis, of 6 years imprisonment.[3] That is the end sentence that is going to be imposed.
[3] This was an arithmetical error. The end sentence is 5 years 2 months. It was corrected. See below at [27]-[28].
[15] There will be a minimum period of imprisonment and that is, in Australian terms, a minimum non-parole period. This will be 4 years imprisonment.[4] And that is the maximum that can be imposed. However, I would not expect there will be any question of release before the full 6 years[5] if there is any realistic risk of further offending. And that will have to be assessed in prison. In this regard it is relevant that if there had been a sentence of preventive detention the minimum period of
imprisonment would have been 5 years.
Preventive detention
[4] See n 3.
[5] See n 3.
[16] I come now to the question of preventive detention. I do need to explain why I have not imposed it in a case where the Crown submitted that this was a case for preventive detention.
[17] At the heart of this are the opinions of the two specialists, with these opinions weighed in relation to the fact that there has been very limited treatment of you in the past, and some other facts that I will come to. The psychologist assesses risk at medium-low. The psychiatrist said – and I am going to read something that he said – and this is under his heading “Summary of risks and advice for treatment”. I will read it out, and it will be recorded:
Mr Dennis, who has previous serious sexual offending towards a young girl, including rape, for which he served a long prison term, although he had some treatment during that prison term, has not learned to keep an appropriate distance between him and young girls. Instead he was convinced that he had gotten over this ‘affliction’ and did therefore not take any further precautions. This definitely needs addressing in his current prison term. Also the fact that he minimalises or even denies his current offending is worrisome. I would therefore say that if Mr Dennis were to be released from prison today and was being sent back into the community, there would be a realistic risk that without proper probation or parole conditions, would fall into a new relationship with a woman with young children and again come to sexual offending against a young girl.
[18] Now that, Mr Dennis, is concerning. But what the psychiatrist also said, prior to that conclusion, is the following – and I am going to read all of this. This is under the immediately preceding heading “Risk assessment with the help of a structured risk assessment tool”.
For this section I used, apart from my own clinical judgment, the SVR 20; the sexual violent risk rating scale. On the SVR-20 Mr Dennis scores positive on the following risk factors.
- Sexual deviance, sexual arousal by young female children
- A history of substance abuse
- He suffers from suicidal thoughts
- He has been in relationship difficulties
- He has a history of non-sexual non-violent offending
- He tends to minimise and deny his sexual offending
Apart from the two historical items, his relationship difficulties and his history of non-sexual non-violent offending, all the other factors are issues that can be treated and when done so will no longer influence his risk negatively.
What I emphasise from this are the concluding observations from the psychiatrist.
[19] Further considerations that I need to note in relation to preventive detention are the following – and I am referring here to the factors that need to be taken into account in s 87 subs (4) of the Sentencing Act.
(a) Paragraph (a): Is there a pattern of serious offending? There is a pattern. It is serious sexual offending against young girls who are not strangers. But there are also the following factors in particular. Firstly, the first offences did not occur until you were 31. Secondly, there was a 4 year period before these [latest] offences occurred during which you were back in the community without any constructive support of any description.
(b) Paragraph (b) of s 87(4) is directed to the seriousness of the harm.
This obviously is seriously harmful offending. And this is not to be assessed in the way a starting point is assessed in bands for increasingly serious offending. I am here concerned with the harm. You have caused serious harm and, as I said before, this may very well be very long lasting.
(c) Paragraph (c) addresses risk. I have referred to the specialist assessments. There are nevertheless matters which are of concern in relation to risk. There is, in particular, your present attitude to your offences and to your victims. Some of these concerning factors are noted in the submissions for the Crown. I have taken these factors into account but they must be assessed in relation to the psychiatrist’s advice that I earlier referred to about what can be treated.
(d)Paragraph (d) refers to any previous efforts to address the causes of the offending. This again is set out in the specialists reports and in
particular that from the psychologist. There has been no real effort – or really no effort – by you; but there has been no real assistance, in Australia or in New Zealand. And specialist intervention of an intensive sort is crucial. You have said you are willing to undertake intensive treatment. You are confirming that to me now as I am talking to you. At this point Mr Dennis asked permission to address me about what had occurred in Australia and I allowed him to do so. What he said is consistent with what is recorded in the psychologist’s report. But he also then said to me, in response to my direct question to him, that he is seriously and solemnly committed to fully engaging in the intensive treatment that is available to him in prison, and which I am sure will be made available, and which I add – from the Court’s perspective – must be made available.
(e) The final factor in s 87(4) is the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society. The determinate sentence I will impose will, in my judgment, provide protection as best as this can be judged, provided intensive treatment is made available in prison and provided Mr Dennis engages fully and openly in it. This might not be enough. But what tips the balance against preventive detention, and quite properly given emphasis by Mr Balme, is that on your release I consider that the Corrections Department – the Chief Executive – should seek an extended supervision order to apply following your release. And that can be an order that subsists for 10 years. That is, the length of the order would have to be assessed at the time, but it may very well be a case where it should be for 10 years. And I record now, for the assistance both of the Parole Board and of the Chief Executive, that you have indicated to this Court today, through Mr Balme, that you would consent to an extended supervision order. It is a factor that I consider is critical and, as I said a moment ago, tips the balance. The significance of an extended supervision order was first discussed in the Court of Appeal
in a case called Mist.[6] I am not going to read parts out of that case but I refer in particular to paragraph [102]. I consider the risk in relation to you is likely to be amenable, in the sense of controllable, to an extended supervision order to a significant extent. This is because your offences are not against strangers but the children of people you know, and that is a factor which must be capable of being adequately controlled.
Formal sentence
[6] R v Mist [2005] 2 NZLR 791 (CA).
[20] I will now impose the formal sentence and you should stand.
[21] For the offence of sexual violation by unlawful sexual connection there will be a sentence of imprisonment for 6 years with a minimum period of imprisonment of 4 years.[7]
[7] This was corrected. See [27]-[28] below.
[22] For the two offences of indecent assault the sentence is 3 years imprisonment.
[23] I record again, as part of the formal sentence, an expectation that an extended supervision order will be sought.
[24] I am required to give you a formal warning. This is a warning of what will happen if there are further offences of this nature or other serious violent offences. This is a warning required by Parliament to be given to you. You will also be given a written notice outlining these consequences and that lists the serious violent offences, and it includes these serious sexual offences.
(a) Firstly, if you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without
parole or early release, come what may. It will be the full sentence.
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[25] But there is a further warning Mr Dennis. And this goes beyond the statutory warning that I have just given you and that I was required to give you. I have already referred to this. This is that, if there is any further offending of this nature of any description there is a serious likelihood of preventive detention. A sentence that would last, as I have said, for the rest of your life. You must seriously take these matters on board.
[26] You should now stand down.
[27] At the point that I asked you to stand down, Mr Balme quite properly raised with me a question as to whether, arithmetically, I had miscalculated the end sentence. He is quite correct. I had taken the end result, working it out in months, as
72 months. In fact the end sentence calculated in months is 62 months. Consequently the sentence imposed on you for the lead offence is a sentence of 5 years and 2 months imprisonment. The minimum period of imprisonment will be two-thirds of that.
[28] For the avoidance of any doubt, that is an adjustment of the sentence that I earlier stated, which has been recorded in open court in Mr Dennis’ presence and, in any event, for obvious reasons, is not to his detriment. I further record that the end sentence does not bear in any way on the substantive conclusions I have recorded which have led me to impose a determinate sentence rather than one of preventive detention.
[29] You should now stand down.
Woodhouse J
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