Brad Freedman (a pseudonym)[1] v The Queen
[2020] VSCA 287
•18 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0191
| BRAD FREEDMAN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2020 |
| DATE OF JUDGMENT: | 18 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 287 |
| JUDGMENT APPEALED FROM: | [2019] VCC 172 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Indecent act in presence of child under 16 (6 charges) – Sexual activity in presence of child under 16 (2 charges) – 18 months’ imprisonment in respect of each offence – Total effective sentence 5 years – Non-parole period 3 years – Applicant and co-offender domestic partners – Offending in presence of their three young children – Co-offender sentenced to 6 months’ imprisonment and 4-year CCO – Whether unjustified disparity between sentences – Equal involvement in offending – Stark differences between applicant and co-offender – Different moral culpability – No disparity – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | Sullivan Braham Pty Ltd |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
For the reasons given by Niall JA, this application for leave to appeal against sentence should be refused.
NIALL JA:
The applicant and Kimberley Finn[2] lived together in a domestic relationship with their three children. The applicant is now 49 years old and Finn is 26. On nine separate days between December 2016 and August 2017 the applicant and Finn used a mobile phone to film themselves engaged in sexual activity. The sexual activity occurred in close proximity to their three children who can be seen in the footage. When the offending began the youngest child was 17 months and the eldest four years and nine months.
[2]A pseudonym.
Although the children did not participate in the sexual activity, as noted by the judge ‘they were certainly very much present.’[3] As described in the applicant’s written case:
The videos depict the applicant and the co-offender penetrating themselves and each other, often with objects, masturbating, performing oral sex and engaging in other sex acts while the children are present. The children do not directly participate in the sexual acts. The applicant and co-offender speak to each other in a highly explicit way. The children interact with the applicant and the co-offender while these acts are taking place. They seek attention and are often crying. They take the phone at some points in time. At others, the applicant and co-offender speak to them loudly and aggressively.[4]
[3]DPP v Freedman (a pseudonym) [2019] VCC 172, [12] (‘Reasons’).
[4]Citations omitted.
The applicant and Finn each pleaded guilty to six charges of indecent act in the presence of a child under 16 years in breach of s 47(1) of the Crimes Act 1958 and two charges of sexual activity in the presence of a child under 16 years in breach of
s 49F(1).[5] In SLJ v The Queen,[6] the following description of the ambit of s 47 appears:
Section 47 creates a single offence of wide ambit dealing with indecent acts involving children under the age of 16. To commit the act ‘with’ the complainant contemplates participating conduct or concert by the complainant[7] — the word ‘with’, when juxtaposed with the phrase ‘in the presence of’, implying actual physical contact with the victim.[8] But the section does not require the child to be a willing participant or to even to be aware that the act has occurred.[9] The offence may be constituted by an act not involving physical contact.[10] It does not require that there be a touching or other act of indecency on the person of the complainant;[11] the offence may also be committed where the act of indecency occurs in front of the child.[12]
[5]The applicant also pleaded guilty to an additional charge of possessing a drug of dependence for which he was convicted and discharged.
[6](2013) 39 VR 514; [2013] VSCA 193.
[7]R v Alexander and McKenzie (2002) 6 VR 53, 78 [51].
[8]Ibid 78 [52] (Winneke P, with whom Charles and Vincent JJA agreed).
[9]See R v AWL (2003) 231 LSJS 239.
[10]R v TSR (2002) 5 VR 627.
[11]Ibid 657 [96] (Chernov JA).
[12](2013) 39 VR 514, 518 [14] (Redlich JA with whom Osborn and Whelan JJA agreed).
Section 49F of the Crimes Act 1958 commenced on 1 July 2017, and made it an offence to engage in sexual activity in the presence of a child under 16 where engaging in that conduct is contrary to community standards of acceptable conduct. This new provision captured the conduct referred to in charges 7 and 8.
On 18 December 2018, the judge heard a plea on behalf of both offenders. After hearing extensive submissions, the pleas were adjourned to allow further material to be obtained, covering a number of issues, including the medical condition of the applicant, who had been diagnosed with bowel cancer, and material going to the nature of the harm suffered by the children as a result of the offending.
On 20 December 2018, Finn attempted to take her own life by walking in front of a truck. As a result of the impact, she sustained very serious injuries and was hospitalised for an extended period.
The hearing of the pleas resumed in February 2019, at which time a report from the Department of Health and Human Services about the impact of the offending on the children was tendered. It revealed that the children had been diagnosed with post-traumatic stress disorder and that the two older children had demonstrated sexualised behaviours.
The applicant was sentenced on 13 February 2019 as follows:
Charge on indictment
Offence Maximum Sentence Cumulation 1. Indecent act in presence of child under 16[13] 10 years 18 months Base 2. Indecent act in presence of child under 16 10 years 18 months 6 months 3. Indecent act in presence of child under 16 10 years 18 months 6 months 4. Indecent act in presence of child under 16 10 years 18 months 6 months 5. Indecent act in presence of child under 16 10 years 18 months 6 months 6. Indecent act in presence of child under 16 10 years 18 months 6 months 7. Sexual activity in presence of child under 16[14] 10 years 18 months 6 months 8. Sexual activity in presence of child under 16 10 years 18 months 6 months 9. Possess drug of dependence[15] 5 penalty units Convicted and discharged – Total Effective Sentence: 5 years’ imprisonment. Non-Parole Period: 3 years’ imprisonment. Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 267 days. 6AAA Statement: 7 and 6 months’ imprisonment with a non-parole period of 5 years. Other relevant orders: Disposal order, forfeiture order, s 464ZF forensic sample order. [13]Crimes Act 1958 s 47(1), as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
[14]Ibid s 49F(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016, which commenced on 1 July 2017.
[15]Drugs, Poisons and Controlled Substances Act 1981 s 73(1).
After a period of convalescence from her injuries and further pleas on 22 May, 12 June and 15 August 2019, Finn was sentenced on 21 August 2019 to six months’ imprisonment and a Community Correction Order of four years with conditions.
The applicant seeks leave to appeal his sentence on a single proposed ground: that there is an unjustified disparity between the sentence imposed on the applicant and the sentence imposed on the co-offender.
Reasons for sentence
The applicant accepts that, putting to one side questions of parity, the sentence imposed on him is within the range that was open to the judge in the sound exercise of his sentencing discretion. Nor does he suggest that there is any error apparent in the reasons for sentence. That being so, it is unnecessary to rehearse in any detail the reasons for sentence. The following synopsis will suffice.
The judge noted that the offending was serious but the applicant’s moral culpability was less because the offending was not directed to the children and, to use the judge’s words, they were ‘not the subject or object of the [offending]’.[16] In that respect, the judge noted that the purpose of sexual gratification is not an element of the offences for which the applicant was charged.[17]
[16]Reasons [10], [12].
[17]Ibid [10], citing SLJ v The Queen (2013) 39 VR 514, 520 [23] (Redlich JA with whom Osborn and Whelan JJA agreed).
The judge took into account the serious impact of the offending on the children which, as noted above, includes post-traumatic stress disorder and the demonstration of sexualised behaviour.[18] His Honour noted that the applicant had a very dysfunctional childhood and was a victim of sexual abuse at an early age.[19] He said that the applicant had a good work history in the fishing industry.[20]
[18]Ibid [14]–[15].
[19]Ibid [19].
[20]Ibid [21].
The judge noted that the applicant had been diagnosed with cancer and that there was a real risk that it was a terminal condition, with the result that he sentenced the applicant on the basis that the applicant might die in prison.[21] His Honour observed that it was highly likely that the applicant would be permanently separated from his children as a result of the offending.[22]
[21]Ibid [22].
[22]Ibid [24].
The judge did not accept that a person with full insight would have committed offending of this kind but there was no evidence that suggested a cognitive or other impairment and the principles in Verdins[23] were not engaged.[24]
[23](2007) 16 VR 269; [2007] VSCA 102.
[24]Reasons [16].
The judge observed that the applicant’s prospects of rehabilitation were up to him and would be a matter between him and the parole board and depend on his medical diagnosis.[25]
[25]Ibid [28].
On the question of remorse, the judge noted the applicant’s plea of guilty, which had utilitarian value, and that within the applicant’s ‘limited capacities there [was] an element of remorse.’[26] The judge noted that the applicant had a criminal history, which did not relate to any form of sexual offending.[27] The applicant’s criminal record spanned 1996 to 2013 and included a range of offences that were less serious than the present offending, including a number of drug offences. The judge accepted that the risk of re-offending in this particular manner was ‘probably low’; there was no suggestion of a paedophilic tendency on the part of the applicant.[28]
[26]Ibid [3].
[27]Ibid.
[28]Ibid [29].
At the time of sentencing the applicant, the sentence of the co-offender was deferred as a result of her sustaining serious injury in an attempted suicide. The judge addressed the position of the co-offender in the following way:
Your co-accused has, in recent times, made a suicide attempt and been very seriously hurt in that process. Accordingly I do not propose to deal with her for a period of some months and when that occurs, that will occur. As I indicated during the course of the plea it seems to me that the objective seriousness of the offending is the same between the two of you. However it has become clear as the plea has progressed and further materials have been provided that there is, in my view, a very significant difference between you in terms of the subjective aspects of it and that will be a matter which will be taken into account at the appropriate time when I have to deal with concepts such as parity.
…
I make it also clear, as I think I have endeavoured to do, that the circumstances with the co-accused are very, very different and I will be hearing submissions from both defence counsel and the Crown when that appropriate situation arises when her physical and mental condition has stabilised.[29]
[29]Ibid [8], [35].
The reasons for sentence of the co-offender
Finn’s plea continued on 12 May, 12 June and 15 August, and on 21 August 2019, she was sentenced. In his reasons for sentence the judge did not differentiate between the two offenders in terms of their physical involvement in the offending.
However, he said that because of matters personal to Finn, her moral culpability was ‘far less’ than that of the applicant.[30] The matters that differed as between the offenders, and which the judge regarded as critical to the sentences he imposed, included the following:
[30]DPP v Finn [2019] VCC 1355, [19].
(a) there was a significant age difference.[31] At the time of offending the applicant was 45 and Finn was 22;
[31]Ibid.
(b) they had been in a relationship since Finn was 13 and had been living together since then. The judge noted their assertions that a sexual relationship between them did not start until Finn was 16 and his suspicion that it had started earlier;[32]
[32]Ibid [19]–[20], [23]. When sentencing the applicant, the judge noted that Finn must have been pregnant when she was 16 — see Reasons [20].
(c) the applicant ‘had a degree of power and control over [Finn]’;[33]
[33]Ibid [18].
(d) the applicant was violent towards Finn and had knocked her unconscious on more than one occasion.[34] Although not a prior conviction, the applicant was convicted of assault on Finn and sentenced to 90 days’ imprisonment;
[34]Ibid [31], [47], [60].
(e) Finn had a disadvantaged background and had never enjoyed ‘an appropriate family set of circumstances.’[35] A grandparent had committed suicide by self-immolation and her mother had attempted to take her own life in the same way.[36] Finn was the victim of sexual abuse as a young child;[37]
[35]Ibid [20].
[36]Ibid [35], [52], [55].
[37]Ibid [36], [53]–[54].
(f) Finn had her first child at 17 when she had no parental experience or support and was suffering from mental health issues.[38] She was using drugs and, in the videos, could be observed to be dishevelled and bleeding;[39]
[38]Ibid [21].
[39]Ibid [17].
(g) Finn had no prior convictions;[40]
(h) in response to the offending, and in a drug affected state, Finn attempted suicide by jumping in front of a truck. As a result she was disabled for a significant period of time and confined to a wheel chair for several months. She sustained very serious injuries. She had subsequently been hospitalised with suicidal ideation;[41] and
(i) Finn had demonstrated appropriate remorse.[42]
[40]Ibid [2].
[41]Ibid [25]–[26].
[42]Ibid [2].
Applicable principles
In Nipoe v The Queen,[43] this Court set out a summary of the principles in the following terms:
[43][2020] VSCA 137.
Consistency in the application of the law is a fundamental aspect of the rule of law. In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: ‘[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’ The High Court has observed that:
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.
Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention. However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed. It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[44]
[44]Ibid [38]–[40] (Maxwell P, Niall and Emerton JJA) (citations omitted) (emphasis in original).
Consideration
As the applicant acknowledged, there were relevant differences between the two offenders that justified a difference in sentence. His complaint was the differences that existed between them could not justify a sentence of imprisonment that was ten times longer. In order to succeed, the applicant must establish that when full regard is taken of the similarities and differences, the differential in the two sentencing outcomes cannot rationally be explained, and was not open to the judge. Given the starkness of the different features and the powerful demands for leniency that the position of Finn demanded, the proposed ground is devoid of merit.
Plainly, the judge was alive to the need to have regard to the relative position of, and sentence imposed or to be imposed on, the two co-offenders. In sentencing the applicant, the judge drew attention to the stark differences between the applicant and his co-offender, even though they were equally involved in the acts that constituted the offending.
There were many factors that tended in favour of Finn which were not applicable to the applicant. When it came to sentence, and the consideration of circumstances that were personal to the offenders, the two were in vastly different positions. There was no error in the applicant’s sentence when it was imposed and it was not rendered unjust or unfair by the subsequent, merciful, sentence that was imposed on his co-offender.
As the applicant accepted, the sentence imposed on him was one that was open to the judge. The matters that placed downward pressure on the sentence imposed on Finn were vastly different in nature and extent when compared to those that moderated the applicant’s sentence. The most important ones included her age, her disadvantaged background, the destructive nature of her relationship with the applicant, the grave consequences of her suicide attempt, her reduced moral culpability, her greater level of remorse and importantly the absence of any prior convictions. A different outcome was plainly called for, and I am not persuaded that the difference arrived at in this case was inconsistent with the proper exercise of the sentencing discretion.
I would refuse leave to appeal.
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