IN THE COUNTY COURT OF VICTORIA
Revised
Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01201
DIRECTOR OF PUBLIC PROSECUTIONS
V
DENNIS MICHAEL STEWART
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JUDGE:
His Honour Judge Maidment
WHERE HELD:
Melbourne
DATE OF HEARING:
4 February 2013
DATE OF SENTENCE:
11 February 2013
CASE MAY BE CITED AS:
DPP v Stewart
MEDIUM NEUTRAL CITATION:
[2013] VCC 64
REASONS FOR SENTENCE
--Catchwords:
--APPEARANCES:
Counsel
For the Crown
Ms D.I. Piekusis
For the Accused
Mr I.M. Hayden
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 2403
Solicitors
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HIS HONOUR:
1
Dennis Michael Stewart, you have pleaded guilty to an indictment charging
you with four separate offences of committing an indecent act with or in the
presence of a child under the age of 16 years.
Three of those offences
involved the first of your victims who has been referred to as CS and the last
charge, Charge 4 concerns the second of the two victims who has been
referred to as RB.
2
The maximum term of imprisonment for the offences to which you have
pleaded guilty is 10 years. The prosecution has tendered and read out in
open court a summary of the case that they bring against you.
That is
Exhibit A on these proceedings. I am not going to read that out in full or refer
to it in any great detail but I incorporate it in its entirety into these reasons for
sentence.
3
At the time of the offending conduct, CS the first of the victims was aged 13
years and resided with his mother and two siblings.
The second victim was
agreed 12 and 13 years variously at the time of the offending conduct.
4
The offending conduct all occurred between 1 February 2011 and 18
November 2011.
Charge 1 involved four separate acts on four separate
occasions all being dealt with under the same charge, all of a similar nature in
that in circumstances where you were alone with the victim you grabbed hold
of the victim's penis.
5
The second charge involved you when you were along in your home with the
victim on nine separate occasions removing your penis from your shorts and
fondling your exposed penis in his presence.
6
Charge 3 involved an occasion when you were alone at your home with the
victim when you were standing naked with your penis exposed and your
hands by your sides in his presence and you invited him to look at you whilst
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you were standing there in that condition. When he looked up, looked away
immediately you laughed and then walked away.
7
In respect of Charge 4 the charge involved two occasions concerning the
same victim when, in your office at the school at which you taught and which
the victim attended, you placed your hand on the victim's penis.
8
Both of those victims had, prior to and during the period of the offending
conduct, been the subject of very considerable attention from you, that is
attention going well beyond the normal relationship between a schoolteacher
and pupil.
9
In respect of the first victim, the attention was such that you asked to and
became godfather to the victim.
You encouraged him to stay over at your
house and it seems that you sought to and were able to insinuate yourself into
the life of that victim and his family.
10
To reach the point where that degree of contact was permitted by his mother
involved you instilling a very significant degree of trust. As the victim impact
statements relied upon by the prosecution note, you were invested with a
considerable degree of trust not just by the parents but by the children
themselves. They clearly looked up to you as a father figure as well as a
teacher and regarded you as a significant role model in their lives. It is in that
context that the prosecution described your offending conduct as a "majestic"
breach of trust. I do not think that is an exaggeration. In each case the acts
relied upon for these offences did indeed constitute majestic breaches of trust
on your part.
11
What is more, and this is acknowledged by you, these were vulnerable boys.
Indeed it was their vulnerability which it seems caused you to pay them
particular attention.
12
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The activity towards them and around the commission of the offences is
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described commonly as grooming.
That behaviour was designed to put you
in a position where you can commit offences of that kind.
13
From what you have said to the psychologist Dr Winship and other
professionals about your activity, you still continue to dispute the proposition
that you embarked upon this course of conduct for sexual purposes or with a
sexual motivation.
To the extent that you acknowledge that your offending
conduct involved any sexual motivation it seems that you would have it that
that was a consequence of the position that you had reached in the
relationship with each of these victims rather than it being the objective of your
attention towards these young men. In other words you would have it that
your intentions towards these young people were essentially and initially
benign but you ultimately crossed the boundaries and committed acts which
constituted these offences.
14
I am not prepared to accept that. It seems to me that it is quite likely that, for
various reasons arising from your complex psychology and your past no
doubt, you are more comfortable in the company of young people than you
are with a adults. I accept that that may be the case. I accept also that you
may have been lonely and particularly so after your adopted son left home.
But I do not accept the proposition that this grooming conduct which was
persistent and insidious was primarily benign. It seems to me that the only
reasonable inference open is that it was aimed at achieving a degree of trust
which would enable you to commit these offences. Fortunately neither of the
boys were prepared to engage with you in any additional sexual conduct
arising from your actions.
15
The finding therefore that I make is that, albeit there may have been mixed
motives, your intention in engaging in this grooming conduct was sexually
motivated and these were sexually motivated offences.
I find that beyond
reasonable doubt.
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16
The prosecution has also relied upon a number of other acts of what is
described as grooming in relation to other young boys of similar ages with
whom you came in contact through your teaching position.
The Prosecution
does not rely upon any of that material as an aggravating feature of the
offences, rather the material is placed before me on the basis that it is
relevant to the question of your prospects of rehabilitation. The nature of the
"grooming" activity that is set out in Exhibit A demonstrates in my mind that
there are real difficulties ahead of you in terms of rehabilitation.
17
Children have to be protected.
They must be protected particularly from
people who are given positions of trust and control over them. It is therefore
the duty of the courts not only to denounce the conduct but to offer a measure
of protection to the public as well as punishing offenders for conduct of this
kind.
18
It is necessary in this case to give proper effect to not just general deterrence
which is a very important sentencing consideration but deterrence of you from
conduct of this kind in the future.
19
It is noteworthy that during the period when the offending conduct and the
grooming conduct was taking place you had engaged in discussion with your
principal which should have led you to reconsider the appropriateness of your
contact with these young people.
It seems you did not heed that warning.
Again it seems to me that raises further questions about your prospects of
rehabilitation.
20
I will say a little bit more about those prospects in a minute when I deal with
the professional reports that were tendered on your behalf.
21
The prosecution also submits that the victim impact statements are powerful
in this case. I would respectfully agree with that description. They stress the
degree to which your victims felt betrayed and deprived of a person who they
looked up to.
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22
You are now 50 years of age.
You were born in South Africa and it seems
that you had a difficult upbringing. Substantially you were brought up by your
grandparents who did not treat you well. You were also the subject of sexual
abuse from a person know to the family which occurred over a significant
period of time between the ages of 8 and 17. Your abuser was 8 years older
than you.
23
You got through school.
Africa.
You spent two years in military service in South
You then studied to become a teacher and obtained a Masters
Degree.
24
You came to Australia in 2000 and obtained employment as a teacher.
It
seems that you won a good deal of respect from at least some of those with
whom you taught. You were noted to be a caring person.
Unhappily it
seems that that reputation followed you to Ballarat in the sense that it gave
you the opportunity to develop the inappropriate relationships that you did.
Nevertheless you demonstrated ability as a teacher and a person who was
willing to shoulder responsibility. You were given positions of responsibility in
various teaching posts.
Indeed you were given such responsibility in the
teaching post you held when this offending conduct occurred.
25
You came to Australia in 2000 with an adopted son.
He has written a
reference on your behalf which has been presented to this court. He I am told
is now aged 31 years and married.
He has a son, your grandson, aged 17
and a half months. He did point out very clearly in his letter that he had never
been the subject of any inappropriate or sexual abuse from you during the
period when you were his adopted father. Indeed you were, to paraphrase, a
model adopted father to him and continue to be so regarded.
26
On your behalf were tendered a number of reports.
Exhibit 1, is a report
dated 19 January this year from Dr Anthony Sidoni a consultant psychiatrist.
Exhibit 2 is a report of Dr Jacqui Winship, a clinical psychologist, dated 31
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January 2013.
Also tendered was a report from Dr Napper a consultant
psychiatrist dated 4 February 2013 and a letter from your general practitioner
dated 24 January 2013. They are Exhibits 4 and 5.
27
The combined effect of those reports makes it clear that you suffer from
bipolar disorder.
That condition has been attended by manic phases.
The
diagnosis would suggest that various aspects of your grooming conduct,
grandiose as they were, may well have been actions which took place during
a manic phase when grandiosity was a symptom of that condition.
28
You have also been seriously depressed and in recent times have been
suicidal. The depression clearly is something which goes hand in hand with
the manic aspect of bipolar disorder but also seems to be a feature of your
psychiatric history over a period of years. I have got no doubt that you have
over the past year or two suffered from significant depression.
You have
been admitted to hospital on a number of occasions in circumstances where
there was a real fear that you may commit suicide.
I think there can be no
doubt that is a condition which may well deteriorate during your period in
custody as a result of the sentencing exercise.
29
I do not take it that the prosecution dissents from that proposition.
I think I
am required to adjust your sentence to take in to account that there is a
serious risk that your mental health will deteriorate, despite the fact that the
prison authorities will be aware of your condition and be in a position to offer a
measure of treatment for it.
30
Some of your conduct towards your victims and indeed others that you are
said to have groomed, involved grandiose gestures, statements, suggestions
that you had a lot of money and a Ferrari, and lavishing money and largesse
upon your victims.
31
It is not suggested however that your bipolar disorder was such as to have
caused or contributed to your offending conduct in a way that reduces your
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moral culpability. It no doubt influenced some of your actions.
But your
actions were committed over a period of time when you had ample opportunity
to consider what you were doing, and you persisted with your conduct despite
that opportunity.
32
It is noted that despite your psychiatric history you were able to hold down a
responsible job in teaching institutions and were apparently able to carry out
your duties within those institutions. So it is not suggested, and I certainly do
not find that your psychiatric conditions reduce your moral culpability.
Although I do find that your mental impairment or impairments are such that a
period of imprisonment is likely to cause a deterioration in your mental health.
I take that into account as I do the various other aspects of your psychiatric
history in assessing an appropriate sentence.
33
Those factors also impact on the question of rehabilitation. You have been
addressing over a period of time the underlying psychiatric conditions, the
bipolar disorder, the depression and the exacerbation of your depression as a
result of these proceedings being brought against you. That has been the
focus of Drs Napper and Winship in their treatment of you.
34
Indeed Dr Winship says in her report that treatment of you has been focused
on your mood disorder and helping you cope with daily life. That she had not
conducted any formal assessment of you with regard to your offending or risk
of reoffending.
Her remarks in her report were made purely on the basis of
her observation and opinion during the period of her treatment of your mood
disorder.
35
She says on p.3 of her report that you report feeling confused by your
behaviour and that you would like to understand it better.
Indeed Exhibit 6
which is the email that you sent her on 31 December would suggest exactly
that, that you have come to a point where you would like to understand it
better. It seems to be clear from her report and that of Dr Sidoni that you had
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not, at least up to the point when they reported upon you, really faced the
issue of the sexual motivation behind the offending conduct.
36
I understood your counsel to suggest that once you have got your other
issues, mood disorder and depression and so on, under control and are in a
better state of mental health, you will be in a position better to address those
issues. That may be so, but I am far from convinced that you have really met
them head-on at this particular stage. I accept that you have reached a point
of wanting to do so and that is a start to the process.
But I am far from
convinced that you are as far down the pathway towards rehabilitation as you
would have been if you had been prepared really to come face to face with the
fact that there has been a sexual motivation behind your grooming conduct,
and there was indeed a sexual motivation in the actual offending conduct
towards these victims.
37
Doctor Winship refers there to a report that was presented to me by the
prosecution which is Exhibit C, a report of Dr Owen.
He essentially looks at
your grooming conduct and says yes, that is grooming conduct.
38
Going back to Dr Winship's report:
"Mr Stewart acknowledges that his behaviour with minors as detailed in Dr
Owen's report theoretically meets the criteria for grooming. However, he
strongly denies that he was ever consciously enticing children into situations
where he could take sexual advantage of them. His consciously expressed
desire appears to have been to take care of vulnerable youths and to give them
all the things that he never had as a child. He also admits that he wanted them
to like him and to feel close to him and that he enjoyed their company.
He appears to have found that these relationships fill the void that was left in his
life after his adopted son left home, as prior to this his son, to whom by all
known accounts he was a devoted father, was a recipient of all his love and
care. He describes finding it difficult to see a child in need without taking some
kind of action to assist them.
Nevertheless, he is also able to acknowledge that these relationships were not
entirely altruistic as he was needy of affection and company and he found this
most easily amongst a young peer group. He has never had a serious adult
relationship with either a woman or a man and he still shows little interest in
developing one. While he has friendships with other adults, he appears to have
always felt most comfortable in the company of minors."
39
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Doctor Sidoni says this on p.6 at paragraph 10:
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"It is critical that psychological input should focus on issues of boundaries and
sexuality when exploring the reasons why Mr Stewart has sought the level of
contact (sexual and non-sexual) with his students that he has. In my opinion,
there is a risk of reoffending while these issues remain unresolved, and it would
be important for his contact with minors to be restricted."
40
It seems from other aspects of Dr Winship's report that you acknowledge that
your contact with minors in the future will have to be limited.
You now
acknowledge that it will be necessary for you to meet head-on the reasons
behind this offending conduct if you are to rehabilitate yourself and to be able
to lead a normal and fulfilling life in the future. Nobody has suggested that is
impossible, merely that it is still ahead of you.
The best one can say is that
whilst it is an encouraging sign that you acknowledge the importance of that
step, one can be no more than guarded about your prospects of rehabilitation
at this particular stage in the process.
41
I was also provided by your counsel with references which are in Exhibit 3, a
letter dated 22 January this year from Marie Kelly, with whom you had worked
as a teacher at a previous school.
She speaks very highly of you as a
teacher and a friend.
42
In the letter from your son, to which I have already made reference, he says
you are a good man who has always provided him "with loving support, a
home, personal direction, sound fatherly advice and love which has influenced
my "career pathway." He goes on to say: "He has sacrificed a lot in his life to
provide for me. As a granddad my father has been very good to my wife and
son and has tried very hard to be there for us, even through all of this turmoil.
The charges have resulted in him losing his job, career, financial standing,
home and confidence, and his mental and physical state have adversely been
affected by these proceedings."
43
There is also a letter from your sister.
I do not think I need to go in to that,
but she is also supportive of you as a human being and points out the impact
that these proceedings have had upon you. There is also a letter dated 31
January of this year from Mr Mark Singer who has known you for 32 years,
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and regards you as a very good and lifelong friend. He describes you as a
good friend who can be relied on, a dedicated educator, a devoted father and
grandfather. "Through my dealings with D" - meaning you - "both on personal
and professional level he has shown a high regard for others and always
wanted the best for his students."
44
You have of course pleaded guilty to these offences. It cannot be said that
this was an early plea, but it was a plea that has resolved the proceedings
against you and you deserve credit for that. I am guarded about saying that it
reflects remorse because I think it is difficult to accept that you are remorseful
in a full and complete sense when there is still reservation in your
acknowledgement of the sexual motivational aspects of your offending
conduct.
45
Your interview with the police certainly was far from full and frank in terms of
admitting the full nature of your conduct towards your victims.
But your plea
of guilty has saved your victims having to come here and give evidence, which
no doubt would have been a gruelling experience for them, and that has
enabled them more easily to put these events and proceedings behind them.
It has also saved the community the cost of a trial and generally has facilitated
the administration of justice.
It is well recognised that you deserve a proper
discount in sentence for your pleas of guilty.
46
You have of course spent a period of time in custody. I think it is now 71
days, 64 days at an earlier stage and the last 11 days since your plea was
presented in this court.
You have no prior convictions of any kind, not
surprisingly, and you are able to draw upon your hitherto good reputation in
the community, albeit that these events were committed in the way I have
suggested involving, as they did, ultimately a very significant breach of trust
on your part.
47
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I am required now to balance as best I can the competing sentencing
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considerations.
I have already touched upon those which are designed to
protect the community, individual and general deterrence, and require me to
punish you and express the denunciation of this court of your conduct.
48
I have to balance that against the factors personal to you, your mental health,
the real risk that your mental health will deteriorate from a period of
imprisonment, and your prospects of rehabilitation.
Although I have
endeavoured to articulate the qualifications upon them and acknowledge the
opinion of Dr Sidoni that there is a risk of reoffending unless and until you deal
with the sexual motivation for your conduct, they are not hopeless. I think in
the end you are an intelligent man and you have prospects of rehabilitation,
guarded though they may be at this particular time.
49
Doing the best that I can to balance all of those factors and being particularly
cognisant of your present mental condition, I will proceed now to sentence you
for these offences. Would you stand, please?
50
On Charge 1, which is a representative count involving four separate acts of a
similar kind, I sentence you to imprisonment for 18 months.
51
On Charge 2 which is a representative charge which involves conduct of a
similar kind on a total of nine occasions, I sentence you to 18 months. I
convict you on both of those offences.
52
On Charge 3, exposing your penis whilst naked in the presence of the victim, I
convict you and sentence you to imprisonment for a period of eight months.
53
On Charge 4, which is a representative charge concerning two occasions on
which you placed your hand on the penis of the victim, I sentence you to
imprisonment for a period of 12 months. I convict you on that also.
54
I declare the sentence on Charge 1 as the base. I order that six months of the
sentence on Charge 2 and three months of the sentence on Charge 4 are to
be served cumulatively upon each other and upon the sentence imposed for
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Charge 1. That makes a total effective sentence of 27 months' imprisonment.
I order that you serve a period of 18 months before you become eligible for
parole. But for your pleas of guilty I would have sentenced you to a total
effective sentence of 36 months' imprisonment and imposed a period of 24
months before you became eligible for parole.
55
I make the orders for the provision of a forensic sample in accordance with the
drafts with which I have been provided.
I need to inform you that the orders
authorise a police officer to obtain a sample of your DNA by obtaining a
scraping from the inside of your mouth. When you are requested to provide
such a sample, if you fail or refuse to do so the officer will be authorised to
obtain a blood sample and may use reasonable force to obtain that blood
sample. I am quite sure that you will not put them to that trouble and that you
will provide the scraping from your mouth when requested. So I make those
orders.
56
I declare that 71 days pre-sentence detention is to be reckoned as time
served on the sentences that I have imposed, and deduct it from the sentence
that you will actually be required to serve, and I order that those facts be
noted in the records of the court.
57
You will be required to comply with the terms of the Sex Offenders
Registration Act and the reporting requirements under that Act. I will provide
you shortly with a memorandum which summarises those obligations, and you
will be on that register for your life. Are there any other matters that I need to
deal with?
58
MS PIEKUSIS: Yes, Your Honour. I had neglected to mention the serious
sex offender status that is required to be noted on the record. Unfortunately I
do not have an instructor or an Act in front of me. I cannot recall whether it is
upon Count 3 or Count 4.
59
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HIS HONOUR: I think it would be from Count 3.
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60
MS PIEKUSIS: Yes. The Crown was never seeking a lengthier sentence on
that basis but the status still needs to be recorded.
61
HIS HONOUR: Yes. Unless Mr Hayden corrects me, I think it is from the third
charge.
62
So Charges 3 and 4 require me to sentence you as a serious sex offender.
Those provisions in certain circumstances would permit me to impose a
sentence that was disproportionate to the nature of your offending conduct.
63
I think it is fair to say that although of course, as I have endeavoured to point
out, this offending conduct did involve massive breaches of trust and was
extremely harmful in an emotional sense, the actual acts themselves do not
fall at the high end of the scale in terms of sexual offending.
No doubt that
has influenced the prosecution's attitude and it influences my attitude in
saying that although sentencing you for those two charges as a serious sex
offender, I do not find it necessary in discharging my function to pass a
sentence which is disproportionate to that which would otherwise be required,
nor do I think it necessary to make orders for total cumulation of the
sentences imposed, having regard to the totality principle and the facts that I
have already endeavoured to illuminate.
64
One other thing. I should have noted on the record of the court that you do
suffer from a serious depressive illness, and that it has been noted by those
who have been treating you over a period of time that you have and still do
represent a significant suicide risk. I will have that noted on the record.
65
Yes, I have got to sign something and provide you with it as well which I will
do before you go down. This is the memorandum I was referring to in relation
to the Sex Offenders Registration Act. I thank both counsel for their help.
PRISONER REMOVED
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